Tag Archives: Aristotle

Citizenship and the emotions: The glue that keeps democratic societies together

The question I want to ask is if emotions can and do have any role in forming and regulating democratic citizenship. We can ask if emotions and feelings might have any positive role in politics in general. This is a good and reasonable question, but I want to narrow it down and approach it from the point of view of citizenship in a democratic society. This means I must give an account of citizenship in a democratic context and of feelings and emotions and how they might possibly contribute to citizenship in democracy, establish and strengthen the glue that is necessary to prevent faction and strife getting out of hand.

I guess the traditional view is that feelings and emotions are causes of strife rather than contributors to a well-functioning democracy. This view may be justified by the distinction between reason and feelings, reason being the calm voice of unity and feelings being the uncontrolled and irrational force causing disruption and chaos. But when emotions and feelings are properly analysed and understood they are not uncontrollable and irrational even though they may be resistant to the voice of reason. When everything is normal, they work in unison with reason, they are part of a well-ordered human rationality forming a whole human being. This does not mean that reason is the overarching, supreme psychological faculty that must reign and be respected but it means that emotions and feelings are part of the make-up of every human being, and they serve an important purpose in a good life just like reason.

Citizen and citizenship

A citizen is an individual located in and a member of a political entity, usually a state, the relation to the political entity is called citizenship. This must be an authoritative political entity controlling a territory because being a member of a social group like a football club does not entitle us to claim citizenship. This sort of social group is not of the right type. Being a citizen is complex and it varies from state to state, what conditions must be fulfilled for a person to become a citizen. Usually, we think of citizenship as a binary concept, either one is a citizen or not a citizen. But the world of citizenship is more complex than that. States confer citizenship on the individuals living within their territories. Two conditions for citizenship are common, if a child is born on the state´s territory it is entitled to become a citizen, if the parents are citizens of the state where a child is born it is entitled to citizenship in this state. Sometimes a state gives persons a right to stay in its territory if that person has lived for a certain number of years within its boundaries or her right to stay may be dependent on relations with a citizen or somebody who has a right to stay. Those who have a right to stay and those who have dependent rights do not usually have a right to vote, for example, and are therefore not full citizens in modern democratic states.

Being a citizen is usually limited to fully mature human beings and it varies between states when individuals become fully mature, 16 years, 18 years or even 20 years. In modern democracies being able to vote is aligned with ideas about moral maturity. So, children do not have the right to vote, and the idea is that they have not achieved the understanding necessary to know what electing a representative involves. Animals do not have a right in democratic politics and no standing as citizens and the same applies to nature. But children have interests just like animals and nature and decisions by democratic politicians can have serious consequences for them. Hence, it has been argued that these groups should be able to influence the political process however we try to bring that about. If the arguments for including these groups in the political process are successful, then the number of citizens increases and the interests that need to be considered in the political process will multiply. This is mentioned here just to point out that in modern philosophy and politics the notion of who is a citizen seems to be changing.

This leads naturally to a question about what kind of concept the concept of citizen is. It seems to me that there is a clear central example that demonstrates the accepted meaning of citizenship which is the example of the citizen of a state. Admittedly, citizenship is complex and there are examples where it is not quite clear if they are instances of citizenship or not, but this does not justify claiming that the concept of citizenship is essentially contested (Cohen & Ghosh, 2019). It is certainly contested and the scope of the meaning of the concept seems to be widening but the notion of essentially contested concepts is suspect (Kristjánsson, 2022, 1-2). I take it that citizenship is a contested concept but not essentially so and we can rationally analyse its core and discuss its boundaries, its evolution, and changes.

I think it is also important to distinguish between the concepts we use and the social arrangements and structures that develop around the referents of these concepts. It is not obvious that social structures and social arrangements affect the meaning of social terms or categories. It seems to me that the meaning of social terms like rights or citizenship is independent of social structures and arrangements even though we adopt the conferral view of social properties (Ásta, 2018, 7-9). The basic idea in the conferral view is that others confer on us social properties, being popular is a social property constituted by the attitudes of others to us. The feelings of many others towards us confer on us the property of being popular. This view of social properties does not necessarily lead to the view that social terms or social concepts change their meaning when the constitution of social properties changes, e.g. if we come to the view that social properties are response-dependent rather than conferred by others.

It is sometimes argued that the meaning of citizenship has changed when social arrangements changed, for example, when women were accepted as citizens with the same rights as men. It hardly needs saying that this acknowledgement was only the first step on a longer road to full equality with men dealing with all the structures and social arrangements that prevented women from being citizens in the same way as men. The first thing to notice is that saying the meaning of citizenship has changed because of this development is ambivalent. The meaning in the sense of the role citizenship plays in the lives of men and women who are citizens has changed, women nowadays have the same responsibilities and the same political status as men and the social arrangements preventing women from living their lives as full citizens are slowly changing. In the Nordic countries this is true and in other European countries but in other parts of the world there is a different story to be told. The second thing to notice is that this development has not changed the meaning of the concept of citizenship. The extension of the concept has widened because of this change in law and the development of the social standing of women has gradually enabled them to enjoy the benefits of citizenship. But the meaning of the concept of citizenship has not changed.

In an anarchical state with open borders it makes sense to talk about citizenship. In such a state the social arrangements for the citizens as a group would certainly be different from what we see in the nation states of the present world. In a tyranny citizenship is very different from a democracy. Despite this it seems to me in all these cases it would make sense to talk about citizens and citizenship.

My suggestion for a core meaning of the concept of citizenship is that being a citizen is a status or standing in a political entity. Being a citizen means that your residence in a territory, your being born in that territory or your having parents that live in that territory, to name some prominent examples, fulfil the conditions required by that political entity, most often a state, and your citizenship consists in a relation to that political entity. The conditions for being a citizen can vary enormously from one political entity to another, but it seems to me that in practically all the cases considered we are talking about a relation between an individual and a political entity like a state.

What does this relation involve? As should be clear by now that the content of citizenship can vary radically between one constitutional order and another. In an anarchy the content would be minimal, you only owe it to the population at large not to attempt to coerce others to perform actions they would otherwise not have performed, the freedom of each and all of us and our right to non-intervention by others must be respected by others. In a tyranny you would have obligations to follow the decisions of the state but no rights against the state, the most prominent obligation would be to obey the orders of the state and not to resist them, however evil they might be. But in the typical case the relation to the state would involve a mixture of rights and obligations, a right to protection and security, to justice, and obligations to pay taxes, follow the law and in many cases bear arms. In most constitutional orders we would expect to find a mixture of rights and obligation.

In modern democracies the mixture of rights and obligations does typically include the right to free expression of one´s views, to freedom of association and the right to participate in governing the society where you live and the obligations to pay taxes, reject violence, use evidence and truth to convince others of your views, and in some modern democracies there is an obligation to participate by voting. One thing to notice about the rights mentioned here is that they are typical human rights and most of them are included in many modern human rights contracts. It is a fundamental feature of the modern conception of human rights that they are rights of individuals, and these rights are considered to be independent of the constitutional order where the individuals live. Citizenship, as described here, is different from human rights, it is a relation between an individual and a political entity and it depends on the constitutional order of that entity how citizenship is understood, in some constitutional orders it only includes obligations, in others it includes both rights and obligations. The conditions each political entity lays down as necessary for citizenship determine who can count as a citizen and who cannot count as a citizen in that political demos or polity. Many of the concepts we use have a clear meaning and the speakers know the referents of the concept. Others do not have clear boundaries but do not cause any problems for speakers in understanding what is being talked about. The boundaries of the concept of citizenship are in many respects not clear even though the legal processes for establishing citizenship clear up the issue who is a citizen and who is not. The legal processes are social arrangements the polity in question has decided to use for clarifying who is a citizen and who is not. These legal processes can be used when non-citizens want to enter the territory being controlled by the polity. A polity with clear legal practices on who counts as a citizen can adopt an open border policy. The experience of those who are citizens and those who are not can be shaped by the social arrangements for good or ill but the distinction between the concepts citizens and non-citizens is not an automatic foundation for these arrangements.

Democracy

Democracy has been the dominant social order in many parts of the world for over a century and spread all over the globe in the last decades of the twentieth century and the first two decades of the twenty first. Yet its prospects are not good, oligarchy and tyranny are on the rise in the world and violence and destructive tendencies like populism are gaining ground in established democracies. Economic growth is no longer a pacifier for democratic orders because it has serious negative consequences for the natural world and democratic governments are more reluctant to redistribute increased personal and social wealth. These developments in modern democracies raise many questions and one of the more important ones is about citizenship: What is the role of the citizen in a democracy? When confronting this question, we must address the fact that democracy is in some ways a special case in the varieties of the constitutional orders. Usually, the major threat to the established order is the possibility of faction, dissension or even revolt. In an oligarchy or tyranny this problem is dealt with by imprisoning those disagreeing with the authorities or even killing them. But it is a basic fact about democracy that it encourages differences of opinions, we expect that every citizen can form her own opinion and voice it if she pleases. This can easily lead to heated discussions, deep differences of opinion and social unrest, in extreme cases to revolts or revolutions. This is a consequence of the rights of democratic citizens, they have the right to form their own opinions and express them, they have the right to establish any associations they want, even revolutionary ones, if they operate within the rules of the democratic order. This raises the question what holds democracies together, how can they survive if it is part of their structure to encourage divisions of these sorts? One way of investigating this is to ask: How should we understand democratic citizenship? Do feelings and emotions contribute to democratic citizenship? Answers to these questions might throw light on how democracies survive turbulent times and can be more resilient than tyrannies and oligarchies.

There are various ways of understanding democratic citizenship. First, it needs pointing out that the basic idea in democracy is that the political power is rooted in the will of the citizens. The obvious question about this statement is: How do the citizens express their will? There are different ways of doing that, talking publicly at meetings, writing articles in newspapers, creating podcasts, or expressing your opinions on social media. In normal times those expressing their views should not have to worry about their lives, jobs, or careers if their views are within reasonable bounds. But the expression of views in media of whichever type does not create a general will of the citizens. We need a more formal procedure for enabling the general will to form. We might create a forum for rational discussion of all interested citizens and aim for unanimity about an issue being discussed at the end. We might conduct an election about a particular issue or a general election in which political parties took part. These two types of elections are the most common methods to try to figure out the general will of the citizens. All the possibilities mentioned here are imperfect ways of figuring out the general will. Rational discussion about one proposal is a lengthy way of forming the general will and there is no guarantee it will lead to a definite conclusion. Elections about issues simplify complex matters, usually we are asked to say yes or no to a specific issue, and political parties offer a mix of views and attitudes to citizens and citizens may find it difficult to figure out where they stand and what to choose.

How should a citizen make up her mind when deciding how to vote? I think it is fair to say that no modern democracy is possible without voting, any polity that says it is democratic but never votes on anything may not be contradicting itself, but it is saying something that in practice does not seem to be possible. So, it is reasonable to ask how a citizen in a democracy should make up her mind when deciding to vote.

One way of trying to understand how a citizen should conduct herself as part of the power base of democracy is to use her reason and think of herself as guided by self-interest. The basic idea is then that when all citizens have made up their minds about an issue or how to vote in an election then we get a rational collective decision based on the rational evaluation of the self-interest of every citizen. There is no denying that this model of citizens and their behaviour can be a powerful explanatory tool. But it has its problems. First, it is only a model, citizens make up their minds on various grounds, some on self-interested ones, others on other-interested ones. Second, one of the logical consequences of this model is that the citizen cannot have a rational reason to vote, the costs of trying to understand issues and going to vote always outweigh the possible benefits to the self-interested citizen. This means that the citizen never or hardly ever has a motive to vote and a strong motive to be ignorant of the public issues in her polity. Third, if it is only self-interest that is in play in public decisions there is no way to discern the importance of public issues except by counting votes. This is highly counterintuitive. I suggest that we put this model of the citizen aside.

I think we should start by some assumptions that can be reasonably made about most citizens in modern democracies. The first assumption is that people who live in a democracy share a way of living together. The reason is that democracy is a way of living together, not only in the sense of living close to each other as we do in cities, but in the sense that we are asked to take part in common practices to take common decisions, a central feature of democracy. In the common liberal order of modern democracies, we might want to say that we are offered to take part even though there are actual liberal states requiring citizens to vote, for example. But it is much more common to consider the citizens free to vote rather than obliged to vote. But I think it is reasonable to say that they are asked to take part in democratic practices like voting because democracies die if the citizens are unwilling to take part in important democratic practices like voting. The second assumption is that the citizens come to the democratic practices endowed with different skills, viewpoints, and knowledge. The democratic order has some obligations to its citizens such as securing education for them enabling them to take part in the democratic practices and to have something to offer on the economic market of modern democracies. But just as importantly these various points of view and different knowledge are valuable for democracy and need to be reflected in the democratic processes. The third assumption is that it is reasonable to expect a modern democracy to support a welfare system for the citizens, this can be realised in very different ways in the context of modern nation states. The fourth assumption is that citizens can be sked to take part in public discussions that are conducted for the citizens to inform and enlighten them. They need to approach these democratic practices with an open mind, not in the sense that they must be willing to change their opinions when discussing with others but willing to take the views and interests of others into account.

These four assumptions are intended to flesh out certain conditions necessary for modern democracy. They are not meant to be a fully-fledged theory of democracy. My reason for introducing these assumptions is to throw some light on what can be expected of citizens in modern democracies and what it is that can make democracy a stable order, what keeps democracies together, even though it encourages citizens to express their views and act on them if the occasion arises. This starting point of democracy seems more likely to lead to faction and strife than a stable social order.

In modern social theories social capital is believed to contribute to the stability of democracy. The idea of social capital was first formulated by Bourdieu and Robert Putnam (1993; Siisiäinen, 2000). Putnam´s idea includes trust between citizens, social support, membership of free associations, common language and common culture. If these things are in place, we can expect an integrative network of relations to form between citizens enabling democratic society to function well. Putnam´s concept of social capital is helpful to understand the background of a well-functioning democracy. The important parts for us here are trust and social support. Trust is something that you earn by your words and your actions showing that you take others´ points of view into account and you are careful not to harm them or their interests. Social support is either something the citizens do or contribute to or the polity supplies. It creates conditions for friendly interactions between citizens and friendly communication. We might say that these two things along with others create solidarity in a polity.

But solidarity, what is that? Solidarity is a fellow feeling based on common attitudes or interests of citizens. In any modern democracy the citizens have different and varied interests, sometimes they are opposed to the interests of others, sometimes not. Sometimes opposed interests develop into class struggles that can be dangerous for democracy. It is not the case that democracy cannot tolerate conflicts and friction; they are natural parts of modern democracy, but there are certain limits to how democratic conflicts can be conducted. A certain amount of coercion can be tolerated if it is based on legitimate interests but as soon as it leads to physical injuries or death it has crossed reasonable limits. But hard struggles among groups in democracies do not normally damage democratic solidarity.

I hope these explanations have illuminated what it means to say that democracy is a way of living together.

Emotions and democracy

Solidarity is certainly a feeling and an attitude, and they are on display in certain democratic practices. It was pointed out earlier that democracy is a way of living together in the sense that we must take part in collective actions if democracy is to work. This means that any citizen must interact with other citizens, communicate, and discuss with them the points at issue, agree and disagree, and attempt to conclude what is fair and just and the majority supports. We must ask how do we do this? We do this by obtaining information about the issue, evaluating the possible resolutions of the issue by taking part in the discussion or at least by forming an opinion for ourselves about the issue. In doing that we use as best we can our abilities to think critically and our feelings and emotions. It is a general truth about human beings that they are endowed with feelings and emotions and with intellectual abilities and reason. It is sometimes assumed that feelings and emotions are independent of reason and are regularly contrary to reason, the view that they are necessarily irrational has a long history. But the theoretical view of feelings and emotions has been changing and it is generally accepted that reason and emotions are connected, and emotions are rational in the sense, for example, when we are afraid, we are afraid of something that might be dangerous to us. Emotions can be rational in the sense of representing the world correctly and in the sense of motivating our response to the danger at hand (Scarantino, & de Sousa, 2021). It is not relevant in the context of this essay to discuss emotions and their rationality in depth but because they are an inevitable part of our cognitive make-up they must be considered when discussing political issues and how we conduct our lives in democracy. Living with others in democracy is living with the emotions of others.

The question then becomes what role do emotions play in democratic practices and deliberations? The emotions play the cognitive role of representing the world and they are especially sensitive to the moral qualities of situations and issues. This perceptual function is in turn a key to the motivating role of emotions. There is an historical model available to us of reason and emotions including how they play out in politics. This is Aristotle´s virtue theory. In the last part of this essay, I will concentrate on Aristotle´s views.

Aristotle´s key idea is that all emotions are infused with reason, all emotions represent reality, and they motivate actions. They are closely involved with the intellectual virtue practical wisdom or phronesis which does not control emotions by suppressing them but by making them parts of our virtues. This means that emotions tend to guide us towards actions that are good or are fitting in any situation. If our moral education has been successful emotions are sufficient to hit upon the right or appropriate action. But in difficult situations where emotions point us in different directions and virtues clash phronesis decides on the right or appropriate action.

There are two ideas about citizens in Aristotle´s work that are important in this context. The first is his idea that friendship is the glue of societies (Aristotle, 2014), the second is his idea that when the citizens come together, they are wiser than all citizens are alone (Aristotle, 1996). I shall discuss them in turn.

As I mentioned before there are certain social practices and social structures that contribute to the good functioning of modern democracy. Aristotle had a similar idea. He says in his Nichomachean ethics (2014, 1155a23-29):

“Friendship seems also to hold cities together, and lawgivers to care more about it than about justice; for concord seems to be something like friendship, and this is what they aim at most of all, while taking special pains to eliminate civil conflict as something hostile. And when people are friends, they have no need of justice, while when they are just, they need friendship as well; and the highest form of justice seems to be a matter of friendship.”

The idea that friendship holds societies together may strike us moderns as fanciful, inappropriate, not helpful. It seems to me that the reason for this is that we think of friendship as a relation between people we know, family and those we are well acquainted with. Modern societies are so large that it is impossible for an individual to know every citizen personally, this applies even in a small society like Iceland. Hence, friendship has no place in explaining how modern democratic societies arrange their democratic ways of living together, how they are more than a collection of individuals, a community.

This would be a too hasty rejection of Aristotle´s view of friendship. The meaning of his Greek word for friendship, philia, is much broader than our modern notion of friendship. Its scope is not limited to our close family and acquaintances but can include a much larger group of people, even all the citizens of a Greek polis, including thousands of people. This is the term Aristotle uses and adds that concord which lawgivers aim at most of all is something like friendship and civil conflict is something hostile to the polis and concord helps to eliminate that. If we interpret Aristotle´s philia as fellow feeling, civic friendship, when discussing the political context of the polity, then there does seem to be a truth in what he says. When democratic authorities treat their citizens well and protect their security and welfare this helps to establish a stable society and causes general satisfaction among the polity. Yet, in democracy dissident voices are always to be expected but they do not cause any problems or strife unless there is an issue addressed that is controversial. But the controversy, if it arises, is not among strangers but among citizens who are friends, a group that has social capital that should ensure that any controversy will not develop into destructive strife. There seems to be a caring attitude among citizens of the same polity. In some modern democracies this caring attitude seems to be lacking and causing all sorts of problems for them, sometimes so deep that democratic practices become difficult, even impossible (Dworkin, 2006).

There is more to Aristotle´s concept of friendship than it being a relation among citizens. Friendship is also a moral virtue. Aristotle´s notion of virtue brings with it most of the key elements in his moral theory. Each moral virtue has its typical middle and extremes and friendship is no different (Aristotle, 2014, 1126b11-1127a13). One extreme is obsequiousness or flattery, the tendency to praise everything and never to obstruct or object to what the other says to avoid causing discomfort or pain. The opposite extreme is the one who objects to and obstructs everything her interlocutor says and thinks nothing of the pain she might be causing. This extreme is called belligerence or bad temper. The mean has no name, but it involves the agent accepting the right things in the right way and reject them likewise, this seems to be praiseworthy and “most like friendship” and the person exhibiting these characteristics seems to be a good friend. The good friend aims for what is noble in her interactions with her friends, so whenever it is noble to add to the pleasure of her friend she does so and whenever her friend says ignoble things or wants to perform ignoble actions she objects and obstructs. She acts in this way because that is how her character is.

This is the virtue of friendship but like all the other moral virtues it brings with it feelings, emotions, and reason. Emotions and feelings in friendship revolve around our friends, the relationship with our friends is the typical object of the virtue of friendship and the feelings of love and care are the attitudes central to friendship. Good upbringing is necessary to make the emotions aim at what is good and noble and reason or phronesis is a part of all the moral virtues deciding when a doubt arises which emotion is appropriate in the context in question.

What this means in general for emotions and feelings in politics is that the feelings must be based on something we know, and they need to be appropriate to the object. Uncontrolled outbursts of strong feelings are to be discouraged, not because they are never appropriate, but because they can easily have consequences that are worse than the original cause of the emotional outbursts. In our modern lives lived in the social media it has become nearly impossible in many instances to find out if the original cause of anger, for instance, is a fact or a fake. The Aristotelian virtue of moderation is one of the most important virtues in modern politics and he thinks that the notion of the good man and the good citizen coincide in some respect (Johnson, 1984). But how does Aristotle think about friendship in our roles as citizens?

Friendship and modern democracy

Aristotle distinguishes between three types of friendship (Aristotle, 2014, 1156a6-9), friendship for utility, friendship for pleasure and true friendship or character friendship. Friendship for utility is based on how useful people can be to each other either in supplying goods for each other or services. Friendship for pleasure involves friends being pleasant to each other. Both these types of friendship change when the circumstances of the friends change, they do not outlast the pleasure or utility the friendship is based on, if they stop the friendship stops. But character friendship is long lasting because the friends aim to do whatever is good for their friend rather then what is useful or pleasant for her. Aristotle thinks that friendship of this last kind is rare “because people of this kind are few” (Aristotle, 2014, 1156b25-26). People who are fully morally mature are not many according to Aristotle and hence character friendship does not occur often, friendship for utility and pleasure are more frequent.

Aristotle thinks that civic friendship holds cities together and that concord seems like friendship as it says in the quotation cited earlier. I suggest that if friendship is to serve this function in a state it must be long lasting, like character friendship, but it will also be like friendship for utility because the state offers its citizens important goods like peace, security and welfare that are necessary for a good life, these goods are useful for every citizen. Civic friendship is long lasting, useful and requires strong loyalty, the state is worthy of love, and it reciprocates the love of the citizens by aiming to make them good (Aristotle, 2014, 1155b28-33). Civic friendship does not seem to fit into any of the three types Aristotle discerns. Character friendship is long lasting, but its maintenance costs are high, its devotion and intimacy require much time (Kristjánsson, 2022, 40). Civic friendship is long lasting if it is to serve the role Aristotle wants it to serve and it is time consuming, citizens in a democracy must spend considerable time on the affairs of state in peace time and this completes the good life, and it requires a strong sense of obligation and devotion if the polis goes to war. Civic friendship can require the ultimate sacrifice of your life in times of war. The Greek city states in ancient times relied on their male population to defend its territory and to conquer and destroy other states. War was a regular feature of both male and female lives in ancient times as it still is in many parts of the modern world. Even though many modern armies are professional institutions the citizens are often obliged to enter the army if the political authorities judge it necessary. So, if civic friendship is keeping societies together as Aristotle believed then it can require the ultimate sacrifice of the citizens now as it did in ancient times. This makes it different from the other types that Aristotle identifies.

It is not my intention to write an essay on how to explain Aristotle´s notion of friendship, especially civic friendship, and how it is related to virtue, but I wanted to show how Aristotle´s civic friendship opens up the possibility of a role for emotions and feelings in responding to political events and actions and how emotions and feeling can contribute to the cohesiveness of society. This way of approaching the role of feelings in modern democratic life goes against the current because most of the time feelings are believed to be a destructive force in politics. The reason for this is that strong feelings easily lead to strife and deep disagreements in politics. It is also the case that unscrupulous politicians use emotive issues to stir up strong feelings that lead people to go into the streets and cause serious unrest that the police must settle. There is another reason for this repugnance of emotions in politics, it is the belief that emotions are somehow necessarily irrational. So strong emotions are taken to indicate the absence of reason. This tendency in modern public life should be resisted.

Aristotle demonstrates how feelings and emotions shape our perception of the moral qualities of the context of our actions and through this perception influence what we think and how we respond and act. The key insight is that emotions and feelings are not free floating, irrational entities that can be stirred when someone thinks it appropriate. There must be a story about something bad or unjust to cause anger among the citizens. Poverty or bad treatment of immigrants and asylum seekers often evokes strong feelings in European countries, police violence and killing of innocent citizens causes strong reaction in other countries like USA and Iran. If this is what really happened, it is entirely rational and reasonable to express strong feelings publicly. The problem for demonstrators is to take care that people are not hurt, and only limited damage caused. This can be difficult, if not impossible, to control in a large group. Often there are persons taking part in the demonstration that are not interested in the issue being objected to but just want to cause trouble. Often it is the sheer number of people taking part that make it impossible to control. All this is a fact of life for anyone taking part in protests in modern democracies. If we look at this from the point of view of Aristotle´s theory of civic friendship, then these responses are rational in so far as they are a response to an injustice because it is the role of civic friends to tell the authorities if they are either planning or performing ignoble acts and causing injustice to innocent people.

Problems for reason and emotions in modern democracy

I do not want to minimize the role of reason in modern democracies. Rational deliberations among experts, politicians and citizens are necessary for any democracy if it is to govern itself well and establish a good context for the lives of its citizens. The experts share their specialist knowledge with the politicians and the citizens and suggest some of the logical inferences to be drawn from the established knowledge. They must also point out weaknesses in the established knowledge and how they must be avoided or taken care of. The citizens with the politicians must decide what to do based on the best knowledge but most often in modern democracies the representatives decide what to do. They are not experts but as a group, citizens and the representatives or just the representatives, are well placed to decide on the general aims, and also on what to do because “the many are better judges than a single man of music and poetry; for some understand one part, and some another, and among them they understand the whole” (Aristotle, 1996, 76, 1281b7-9). This seems to imply that the citizens can be in the position of judging an issue and coming to a conclusion about it based on the best argument, i.e., rational deliberation among citizens is possible and it could serve this epistemic function in ancient Athens. Many modern political theorists believe that rational deliberation is possible among citizens, and it can possibly serve the same function in modern democracies as in Athens. If it is the representatives who are deliberating in preparation for taking a good decision, they must represent the whole of citizens (Anderson, 2006).

But there are two facts that seem to tell against this. The first is that in modern democratic politics you cannot trust either the citizens or the representatives to respect the truth and conduct their deliberations on what the truth is, not even on what they think the truth is, because deliberate lying has become a commonplace in political discussions. Political cultures vary in this respect, some are more corrupt than others. The second point is that intellectual division of labour in politics is an inevitable fact of modern societies, so knowledge and skill is distributed unequally but citizens are considered equal in democracies and the aim must be that their influence on some decisions should be equal. But if rational deliberation and judgement ought to track the best argument and approach the truth then it seems that those in the know, the experts, should carry more weight in coming to a rational conclusion than the ordinary citizen. She is likely to misunderstand the key issues and not appreciate the most important facts and come to a view that does not track the best argument. Experts do not always agree and when two groups of experts argue their case for the citizens it is probable that they do not understand the issue fully and hence their judgements do not track the best argument. The same applies to representatives who must decide on a lot of issues on which they have no specialist knowledge. If their judgements track the best argument, it may be fortunate coincidence rather than a clear understanding of the concepts, inferences, and facts of the case (Christiano, 1996, 123-127). It is more likely that their judgements do not track the best argument and the best view of what is true and therefore the decision will not be the right one producing the best consequences. These two facts of modern democracies conspire against the possible epistemic benefits of rational deliberations of the many and the wise.

Taking part in rational deliberations engages the emotions and feelings of the citizens. Rationality is not the only thing that matters because the motivation for taking part is stronger if the feelings are engaged. If your point of view does not carry the day in the deliberation and you end up in the minority you must always evaluate your arguments, your inferences, your presentation, and the truth of your point of view. The question must be: Did I lose because I was wrong or did I lose because of something else? Your losing does not necessarily mean you were wrong even though Rousseau thought so. If you believe you were wrong about some major matter your opinions change, but this does not necessarily mean that your emotions and feelings change as well. It seems that Aristotle did not realise that emotions and feelings might behave differently from opinions and judgements and the Stoics opposed his ideas on the ground that feelings and emotions were uncontrollable and had a life of their own and Aristotle was wrong about their moderation (Sherman, 1997, pp. 101-102). Emotions and feelings are more recalcitrant to change than opinions and this can cause problems for citizens in their lives, but it seems to me wrong to say that they are uncontrollable. Aristotle was right in saying that emotions and feeling are parts of our rational mental make-up and respond to events and facts in the world and are an important part of a well-rounded happy life.

It is well to remember that Aristotle argued that education should be public and the same for all (Curren, 2000). Public, rational deliberation on the common good requires that the citizens are equipped to take part in and profit from such deliberation. In his time, as in ours, education is a key condition for any citizen enabling her to execute her duties as a citizen. Enabling pupils to read and write were foundational parts of education in ancient Greece just as it is in our modern time. Illiteracy has now become a much more serious liability than in Aristotle´s time because the volume of information is much bigger and most of it is put in writing. It is practically impossible for anyone who is illiterate to participate in public life in the modern world. Education shapes our mental life including our emotions and feelings and enables them to relate to the world in ways closed to the uneducated. Education moderates the emotions by illuminating the complexity of the world and the differences of viewpoints. Reason grows with education just like emotions and feelings do. Citizenship is subject to the influence of emotions and feelings and if the constitution is democratic, education is necessary to strengthen and preserve the democracy.

Conclusion

I wanted to answer the question: What is or should be the role of feelings and emotions in modern democracy? I have argued that the concept of citizenship has a meaning and is contested. It is essentially a relation between an individual and a political authority and in a democracy all political power is derived from the citizens. Citizenship can be considered a relation like friendship as Aristotle argued especially in the light of the necessity of social capital in modern democracies. Citizens are human beings governed by feeling and reason shaped by social trust and fellow feeling towards other citizens. Feelings are a natural fact of human life; in a good life they should be infused with reason and can and should be controlled in the common life of democracy. But feelings, like reason, must deal with corruptions in modern democracies like the lack of commitment to truth

 

References

Anderson, E. (2006). The epistemology of democracy. Episteme, 3(1-2), 8-22.

Aristotle. (2014). Nicomachean ethics. (Translated and edited by Roger Crisp.) Cambridge: Cambridge University Press.

Aristotle. (1996). Politics and the constitution of Athens. (S. Everson ed., revised student edition.) Cambridge: Cambridge University Press.

Ásta. (2018). Categories we live by: The construction of sex, gender, race, and other social categories. New York: Oxford University Press.

Christiano, T. (1996). The rule of the many. Fundamental issues in democratic theory. Boulder: Westview Press.

Cohen, E. F. & Ghosh, C. (2019). Citizenship. Cambridge: Polity Press.

Curren, R. R. (2000). Aristotle on the necessity of public education. Lanham: Rowman & Littlefield Publishers Ltd.

Dworkin, R. (2006). Is democraccy possible here? Princeton: Princeton University Press.

Johnson, C. (1984). Who is Aristotle´s citizen? Phronesis, 29(1), 73-90.

Kristjánsson, K. (2022). Friendship for virtue. Oxford: Oxford University Press.

Putnam, R. (1993). Making democracy work: Civic traditions in modern Italy. Princeton: Princeton University Press.

Scarantino, A. & de Sousa, R. (Summer 2021 Edition). Emotion. The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/sum2021/entries/emotion/>.

Sherman, N. (1997). Making a necessity of virtue. Aristotle and Kant on virtue. Cambridge: Cambridge University Press.

Siisiäinen, M. (2000). Two Concepts of Social Capital: Bourdieu vs. Putnam. Paper presented at ISTR Fourth International Conference “The Third Sector: For What and for Whom?” Trinity College, Dublin, Ireland.

 

Errors in Politics: An analysis of the concept of political error

What is a political error? How can we distinguish a political error from other kinds of error? Is there any specificity of the kind of errors that can be made in politics? More precisely, if emotions and affects play a key role in politics, one shall suspect that they may also play a role in political errors. Is it possible to define more clearly the nature of this role and, hence, the nature of political error? Is it possible to depict phenomenologically the way through which rational arguments interfere with emotional motives and, conversely, the way through which emotions shape rationality in politics? A better knowledge of what is specific in political errors might thus help to understand the relationships between reason and emotions, concepts of rationality and “structures of feelings”.

Although political errors are likely to be as old as politics itself, it is only in modern times – and I will suggest that it is only with Machiavelli – that the notion of political error clearly emerged on the background of other kinds of errors with which it has long been mingled. In an article entitled Morality and the social sciences, Albert Hirschman analysed the connection between morality and politics[1]. He shows that there is a durable tension between the two. He writes: “modern political science owes a great deal to Machiavelli’s shocking claim that ordinary notions of moral behaviour for individual may not be suitable as rules for conduct for states.” Such an analysis invites to go back to the distinction between the different kinds of errors that can be done by humans with the goal of identifying the nature of those that can be specifically called “political errors”.

 

Outline of the article

I will proceed as follow: I will first make a brief “history of error”, if one can say so. More precisely, I will try to identify a few steps that have been gone through in the thinking about what an error can be in general. I will show that one can distinguish four kinds of error. Namely the perceptual error, the conceptual error, the moral error and, finally, the political error. The distinction is not controversial for the three first groups. The fourth kind of errors, however, is a controversial issue. Indeed, when it comes to political error, some commentators claim that it does not has to be confused with moral errors; others claim right the opposite, thus that political errors are only a certain variety of moral error. This is showing, at least, that the notion of political error is still not well characterized.

In a second moment, and in order to shed some light on the question, I will assume that the distinction between moral and political error is relevant and I will thus try to define more precisely what a political error is as opposed to other varieties of errors and, more specifically, as opposed to moral errors. Thus, I will try to assess the nature of political errors. I will exhibit a few distinctive features of political errors showing that their difference with other kinds of errors is not of a speculative sort but that it actually corresponds to facts.

Finally, I will turn to the question of why assessing the nature of political error can be helpful if one wonder to find ways of modifying affects. Narrating stories is, I will show, a powerful way of intervening into political issues. This is where phenomenology comes about: it will show how narratives matter when it comes to political passions. I will thus try to analyse how narratives and, more generally, history, can change the shape of affects of political significance and, in some cases, avoid political errors.

 

A history of error

So let me with the history of the notion of error. I speak here of notion of error as it has been conceptualized which I distinguish from the fact of simply making an error, the latter being probably as old as humanity itself. Identifying and expressing what is at stake in the making of an error is something different than making an error. It supposes to conceptualize accurately what an error is.

As far back as the fourth century BC, Heraclitus of Ephesus, the Ionian Greek philosopher, would claim that “those who are awake have a world one and common, but those who are asleep each turn aside into their private world”[2]. He seems to mean that humans can live either in illusion or in truth. Here, thus, error is taken as an equivalent of illusion; an interpretation that is confirmed by other fragments from Heraclitus. Under every error, one should be able to identify a corresponding illusion. Illusion, in turn, is conceived in a way that is very similar to what happens when one perceive something and interpret as something that does not correspond to what is actually perceived. The square tower that is perceived as a round tower from a distance would later become the canonical example that encapsulates this notion of perceptual error. Perceptual errors, however, are not be confused with conceptual errors, as Plato would show, a few decades after Heraclitus.

Indeed, the distinction between perceptual and conceptual errors can be traced back at least to Plato. In the Socratic dialogue entitled Meno, Socrates famously show how a young slave can be led to correct by himself his own errors by being guided only by questions[3]. When the young slave says that a square the side of which has been doubled will also have its surface doubled, he makes an error that is clearly not of a perceptual kind. One can thus distinguish at least two kinds of errors which can be called perceptual errors and conceptual errors. If a distinction has to be made between these two kinds of errors, other kinds of errors might have to be recognized as well.

Aristotle, in Nicomachean ethics and in the Politics would precisely identify a third kind of error which deals specifically, he would explain, with the consequence of having incorrectly anticipated the future. Someone who, by his attitude, provoke consequences that he was not expecting is making an error which cannot be qualified as perceptual. It cannot be qualified as a conceptual error either. Rather, it is again a new sort of error that is to be found both in moral and in politics, Aristotle would claim.

When I do something that I later regret, I make a moral error. When a politician or group of people decide something that would later lead to a catastrophe (a war for instance), one can call it a “political error”. At a first sight, such an error does not have a structure that differ from the moral error since it results from the failure to foresee the consequences of our actions. And that will be what Aristotle would conclude. In moral error, as well as in political error, the failure lie in the fact that the future has been incorrectly foreseen. In other terms, from Aristotle on, moral error and political will be characterised as being of the same sort.

Aristotle would, for instance write, in the Politics, that “governing is being able to see what the future will be”[4]. Therefore, not being able to see correctly what the future will be is making a political error. By the same token, not being able to anticipate the consequence of an act would constitute the basis of the moral error as it is analysed in the Nicomachean ethics. Thus, political and moral errors are here analysed in the same way. In fact, the two categories are considered as only one category.

This link between moral and political errors will have an enduring life. It will be reaffirmed from century to century up to Machiavelli who would disentangle the two notions, probably because he is more concerned with practical thinking (which he famously call verità effettuale de la cosa) than by conceptual analysis. In so doing, he is introducing a distinction into the third category of errors which would thus have, at least for those who accept the notions provided by Machiavelli, to be now split into moral errors and political errors instead of being grouped into a single category.

Although the nature of the difference between the two remains obscure at this stage, it appears clearly that the two notions of moral and political should be distinguished when Machiavelli exhorts, for instance, the Prince to keep giving the impression that he is acting with equanimity while he shall, occasionally, have to act otherwise[5]. Equanimity is thus, for Machiavelli, a moral notion that should not be confused with the political usefulness of having the reputation of being so. Being unjust could be a moral mistake, but it can also, sometimes, help to avoid a political mistake.

It is not before the twentieth century that what is at stake under the distinction between moral and political error will begin to be clarified. Hence the fact that from its first publication in 1532, The Prince has been considered as a sulphurous reading. Even Leo Strauss, in its Thoughts on Machiavelli, first published in 1958, considers that reading Machiavelli exposes to dangerous drawbacks. He would write, for instance: “We do not hesitate to assert, as very many have asserted before us, and we shall later on try to prove, that Machiavelli’s teaching is immoral and irreligious”[6]. By this he means that, at the end of the Middle Ages, claiming that moral and politics can be disentangled is, in itself, a moral error. This might be the reason that make the issue so controversial. Let’s turn back, for a minute, to the arguments that lead Machiavelli to separate the two notions.

The Prince is composed as advices to Lorenzo de Medici the second and is supposed to help him stay in power. The advises provided by Machiavelli are mainly, if not exclusively, oriented through one goal which is to answer a question that could be summed up as follow: “how should the Prince, the sovereign, act in order to avoid that his former friends turn into enemies?” Therefore, turning friend into enemies is also what would characterize a political error according to Machiavelli. One discovers that one has made a political mistake when someone who used to be a friend turn to be an enemy. Let us take this as a first definition of the political error.

Such a definition does not apply to moral error since in moral error, one possibly become the enemy of oneself, but one does not necessarily turn someone against oneself. Thus, although, as Aristotle already noticed, both moral and political errors share the failure to foresee the future, they do it in quiet different ways. In political errors, what is at stake is the risk, for any action, to make friends become enemies while in moral error, what is at stake is, so to say, the risk to become its own enemy by having to judge oneself with poor favour. A political error has to deal with the anticipation of how others would react to our initiatives.

From there on, two schools of thought would appear. One of them will stick to the Aristotelian idea that a political error is a kind of moral error. The other one, following Machiavelli, will try to identify more clearly what is specific in a political error.

 

Assessing political errors

By turning to two examples, I will try to define the specificity of political error more clearly, thus assuming that this last opinion makes sense.

The first example will deal with a stunning episode of the recent French political live. The former French president François Hollande, who was then finishing what would turn to be his unique mandate, published a book, that in fact had been written by two journalists, which title was: A president shouldn’t say this[7]. Indeed, the book could not have a better title since it was, as it would be mentioned by many observers as well as by policy makers including a large number of members of its own party, a great political mistake. In this book, he was, quite honestly, explaining what he did all along its mandate. Honesty could hardly be depicted as a moral mistake. But it could easily generate political mistakes. That was what happened in this occasion. The mistake was so great that his own first minister decided to run for presidency and that, finally, he himself, although President, would decide even not to try to run for presidency because, he declared “XXX”. That will open an avenue for his former minister of economy, a person whose name was Emmanuel Macron (who, by the way, did validate, a few years earlier, a degree on political sciences with a memoir on Machiavelli).

So what was the political mistake that François Hollande did with this book? The answer has been anticipated by Machiavelli: he turned many of his former friends into enemies. One should note that the nature of politics entailed by this notion of error is not the same as the one proposed by Carl Schmitt who, as it is well known, focuses on the distinction between friends and enemies[8]. Here, what is at stake is not to distinguish friends from enemies but rather to anticipate what would make the former turn into the latter. It is a different sort of distinction that also opens different perspectives.

Since affects circulate in friends in a way different than they circulate in enemies, turning friends into enemies is the equivalent of turning supporting feelings into destroying feelings. As one can see on the example of François Hollande, the effect that he obtained with his book turned to be right the opposite to what he was looking for. It was supposed to enhance the number of its supporters; it turned out that it decreased this number.

Similar mechanisms operate, although at a much higher rate, in the burst of a revolution. This is what happened, and this is the second example, in Iran a few decades ago leading to the resignation, in 1979, of the King of Iran, the so-called Shah of Iran, Mohammad Reza Palavhi[9].

A few years before the revolution, the Shah of Iran decided to organize a sumptuous celebration of its regime. The goal was to deepens its power by appearing at the top of an unchallenged legitimacy. He obtained, however, the directly opposite effect: his opponents infuriate while his proponents did not agree with such magnificent and expensive celebrations. The result was that the Islamic revolution, that arose a few years later, would push him away with the help of the citizen of Iran. He had accumulated a vast number of haters by the ways that, he thought, would be appropriate to consolidate his power.

Thus, we can now define more clearly what a political error is: it is an error made on evaluating the consequences of what others think about what one do or say. If I do or say something, I have also to deal with what people think about it. A political error will arise if I fail to anticipate correctly that reaction. Although it can be helpful to provide criteria to distinguish what a political error can be, it is again more helpful to provide some clue that could help to prevent political mistakes.

 

Correcting political error

Maurice Merleau-Ponty, in his Note on Machiavelli, published in Signes in 1960, did notice rightly that what exposes The Prince to error is that what he does or say is always seen in a plurality of ways[10]. Since the Prince is exposed to the judgment of a variety of persons, his action will also be judged in a variety of ways. Anticipating the reaction of a crowd must thus depend on a specific sense of evaluation which is not the same as the one that one can have in front of a single or of a few well identified persons. The politician is judged by a crowd of ways of seeing instead of by only a few. And each of them is affected differently by what he is doing. How to anticipate the variations that could arise in such a crowd?

To answer this question, Machiavelli uses essentially one a tool. This tool is history. He would provide advises to the Prince by looking back to what happened to others in various situation, as I just did with the example of François Hollande and of the Shah of Iran. This manner of reasoning is pointing to the nature not so much of history than of politics. Machiavelli was not an historian and did not pretend to be one. What he was doing with history is of a different kind.

Indeed, he is attempting to shape the affects of Lorenzo de Medici the second to help him avoiding some mistakes that would lead his reign to a catastrophe. That is the way through which, pragmatically, Machiavelli is seeing history. History, in other word, is, for him, a tool that is efficient to shape politically meaningful affects. And, as such, history can be useful to prevent political errors.

This is suggesting ways of using history to reshape the affects that are significant for politics which are love or, at least, respect and hate or, at least, disrespect. As I tried to show, there are ways to turn someone from respect to disrespect as with the case of Hollande) or, in the opposite way, from disrespect to respect. A political error can thus be analysed in terms of lack of historical culture. The historical culture, as Machiavelli means it, is a tool suitable to avoid political errors.

But is it possible to correct a political mistake with history and how does such a correction work? Most of the time, when one speaks about the use of history for political purposes, one has in mind the way through which one can learn things from the past by avoiding errors that were previously done.

For instance, in the financial crisis, in 2008, many commentators did suggest looking back at the Great Depression crisis of 1929 to avoid the mistakes that were then made. Policy makers claimed that they have “learned the lessons from the past”. Such examples can explain why people would act differently when similar circumstances arise. Of course, the circumstances are never exactly the same. Therefore, the historical relevance of a given reference will generally be subject to a critical evaluation. The American historian of economy Barry Eichengreen has shown convincingly, in a book on use and misuse of history, that although the lessons of 1929 have been taken into account, new errors were also made, presumably because the model of the 1929 crisis served too much as a basis for thinking about what should be decided[11]. This represent a conventional use of history in politics. It represents a part of what Machiavelli suggests when he turns to history. But only a part of it.

Machiavelli would indeed go one step farther in its investigation of the power of history and narration because he is not only concerned by right actions but also by affects. Could turning hatred into more pacific affects be achieved by history and by narration, as it should be expected if the analysis of Machiavelli turned out to be correct? I will give a single example showing how political affects, i.e. mainly hate and disrespect, can be modified through narration. A narration can therefore reshape affects and turn disrespect into respect.

To show this, I would like to narrate a story that took place in the XIXth century in the city of La Rochelle, on the Atlantic seaside in France. It shows the connections between narrating a story and triggering a change in the way affects are circulating. La Rochelle then harboured an important military place which was located right in the middle of the city. As it is usually the case for official buildings, one could find a national flag, thus a blue white and red flag, floating on the roof. A friend of the French historian Edgar Quinet who was living in the neighbourhood had an apartment the windows of which opened right in front of the flag in such a way that he was seeing the flag every time he was looking through its windows. He did not like this view because, he said, the flag has a military flavour he was disliking. Edgar Quinet told him the meaning of the flag, explaining that the French flag has its own history and meaning: his three colours, blue, white and red, were chosen to symbolized the people from Paris surrounding the king. Indeed, the colour of the king’s flag was the white, while the colour of the city of Paris is the blue and the red.

Once Edgar Quinet told the story to his friend, who was of Parisian origins, the feelings of the latter changed dramatically: “how nice, he said, I will love this flag now!” This is showing what narrating a story could do in political affects. Narrating a story is not something neutral which would only give information from the past. It is something that act in a much deeper fashion. It affects the way we are related to things. It should be noticed that it is not achieving this goal by preaching the goal it intends to reach but rather by exposing facts that are, in a sense, much more than simple facts. A story is made by the narration of facts, but it conveys affects (and effects) of political significance since it can turn hate into love.

This phenomenological analysis, provided by an historian, shows what can be achieved with the simple narration of an history. Narrating an history could, at a first sight, seem to be a very neutral process which deals with transmitting facts. But when one looks more phenomenologically at what is it at stake in narration and in the process of hearing a narration, one discovers that the it conveys the power to trigger new regimen of affects that can, in certain cases, make them useful to avoid political errors. Here, arguments and affects interact in such a way that they are tightly intertwined.

 

Conclusion

Since there are ways to shape political affects, it is still more important to distinguish political error from other kind of errors. Political affects can be efficiently changed by the narration of history, as I have tried to show. It means that beside history, there is another topic that deserve a close attention which the usage of history in politics. This should constitute a sub-discipline as such since it is an essential topic when it comes to political errors. In other terms, to investigate more thoroughly what a political error is, one should look carefully at how history is working when one listen to it.

 

References

Aristotle, The Politics, tr. en. T. Sinclair, Penguin classics, London, 1981.

Heraclitus of Ephesus, Fragments, Penguin classics, London, 2003.

Hirschman, Albert, Morality and the social sciences : a durable tension, in The essential Hirschman, ed. J. Adelman, Princeton University Press, Princeton, 2013.

Hollande, François, Un président ne devrait pas dire ça…, avec G. Davet and F. Lhomme, Stock, Paris, 2016.

Machiavelli, Niccolò, The Prince, tr. en. T. Parks, Penguin classics, London, 2014.

Milani, Mohsen, The Making Of Iran’s Islamic Revolution: From Monarchy To Islamic Republic, Second Edition, Routledge, London, 2018.

Plato, The collected dialogues of Plato including letters, ed. E. Hamilton and H. Cairns, Princeton University Press, Princeton, 1982.

Schmitt, Carl, The concept of the political, tr. en. by G. Schwab, University of Chicago Press, Chicago, 2007.

Strauss, Leo, Thoughts on Machiavelli, The University of Chicago Press, Chicago, 2014.

 

Endnotes

[1] Albert Hirschman, Morality and the social sciences: a durable tension in The essential Hirschman, ed. J. Adelman, Princeton University Press, 2013.

[2] Heraclitus of Ephesus, Fragments, fragment B89, Penguin classics, London, 2003.

[3] Plato, Meno, in The collected dialogues of Plato including letters, ed. E. Hamilton and H. Cairns, Princeton University Press, Princeton, 1982.

[4] Aristotle, The Politics, tr. en. T. Sinclair, Penguin classics, London, 1981.

[5] Niccolo Machiavelli, The Prince, tr. en. T. Parks, Penguin classics, London, 2014.

[6] Leo Strauss, Thoughts on Machiavelli, The University of Chicago Press, Chicago, 2014.

[7] François Hollande, Un président ne devrait pas dire ça…, avec G. Davet and F. Lhomme, Stock, Paris, 2016.

[8] Carl Schmitt, The concept of the political, tr. en. by G. Schwab, University of Chicago Press, Chicago, 2007.

[9] Mohsen Milani, The Making Of Iran’s Islamic Revolution: From Monarchy To Islamic Republic, Second Edition, Routledge, London, 2018.

[10] Maurice Merleau-Ponty, Signes, Gallimard, Paris, 1960.

[11] Barry Eichengreen, Hall of Mirrors: The Great Depression, the Great Recession, and the Uses-and Misuses-of History, Oxford University Press, Oxford, 2014.

Thinking of the Shadow. Conceptions of Cruelty in the History of Western Thought

As regards thinking of the shadow, I can contribute to the present discussion qua intellectual historian who, together with the theologian Michael Trice, has reconstructed in recent years the understanding of a particular manifestation of the shadow in the long life of Western philosophy: cruelty. Between 1998, when I started investigating Judith Shklar’s and Richard Rorty’s liberalism of fear, and 2017, when I completed a volume of collected essays of mine to be published by Northwest Passage Books under the title Philosophy of Cruelty, I devoted considerable time and attention to retrieving, mapping and reflecting upon the conceptions of cruelty developed in the history of Western thought. What follows here is a concise overview of the five most common and/or most articulate conceptions that I have identified in the course of my studies, and repeats almost verbatim what I state in the aforementioned collection of essays of mine. Longer and more detailed analyses can be retrieved in my older publications on this subject. Please note also that my research is intentionally limited to explicit uses of the terms “cruelty” and “cruel” in the languages accessible to me.  Extending it to cognates such as “violence” or “aggressiveness” would make the project unmanageable.

Cruelty as Vice

Cruelty has been regarded very often as a quintessentially human vice affecting specific individuals. This conception of cruelty is characteristic of ancient and medieval philosophers, whose approach to ethics typically centres upon the notion of personal character rather than upon the notion of rightful or good actions and norms—the latter being predominant amongst modern and contemporary thinkers. Also, this former conception of cruelty takes a chief interest in observing what consequences cruelty has for the perpetrator, rather than for its victims, as commonplace instead for modern and contemporary approaches to cruelty. In particular, ancient and medieval philosophers suggested that cruelty is a vice affecting persons involved in punitive contexts, e.g. courtrooms, schools, armies and households. In De Clementia, Seneca claims that “cruel are those who have a reason for punishing, but do not have moderation in it”.[1] Besides, he claims that, as concerns the person who “finds pleasure in torture, we may say is not cruelty, but savagery – we may even call it madness; for there are various kinds of madness, and none is more unmistakable than that which reaches the point of murdering and mutilating men.”[2] “Cruelty” is thus defined as “harshness of mind in exacting punishment”, rather than unrestrained lust for blood.[3] As a vice, ‘”cruelty” is said to be “an evil thing befitting least of all a man”,[4] and it can take private forms (e.g. family feuds) as well as public forms (e.g. tyranny, insofar as “[t]yrants”, unlike kings resorting to cruelty “for a reason and by necessity[,…] take delight in cruelty”).[5] Cruelty is the opposite of clemency, yet “it is as much a cruelty to pardon all as to pardon none.”[6] Clemency, according to Seneca, does not mean indiscriminate forgiveness, but rather a balanced blend of moderation and justice.

As famously discussed by Aristotle, our vices are said to spring from a lack of balance within the human soul; to exceed in forgiveness is as conducive to vice as to exceed in harshness. Aquinas’ Summa Theologica echoes Seneca’s position and combines it with Aristotle’s ethics:

Cruelty apparently takes its name from “cruditas”[rawness]. Now just as things when cooked and prepared are wont to have an agreeable and sweet savour, so when raw they have a disagreeable and bitter taste. Now it has been stated… that clemency denotes a certain smoothness or sweetness of soul, whereby one is inclined to mitigate punishment. Hence cruelty is directly opposed to clemency.[7]

Also for the doctor angelicus [angelic doctor] of the Catholic Church is “cruelty… hardness of the heart in exacting punishment”,[8] hence a form of “human wickedness”; whereas “savagery and brutality” are a form of “bestiality”.[9] Cruelty contains an element of rational deliberation, which “savagery” and “brutality” do not possess: these, in fact, “take their names from a likeness to wild beasts… deriving pleasure from a man’s torture.”[10] Cruelty is therefore something evil that we do intentionally and which corrupts our character by exceeding in what would be otherwise acceptable; but it is also something that we can do something else about, for all vices can be remedied by proper self-correction. As Aristotle and the medieval pedagogues used to teach, whatever the initial endowment of inclinations and talents in our character, each of us is responsible for the kind of person she becomes.

Cruelty as Sadism

The distinction drawn by Seneca and Aquinas between cruelty and bestiality, epitomised by sadistic pleasure, seems to vanish with several modern thinkers, who actually take sadism as the paramount, if not the sole, example of cruelty. This is a second, fairly common conception of cruelty, according to which cruelty turns into something worse than a vice, indeed something devilish or extreme. To some, cruelty becomes so extreme a tendency that it transforms into a sheer figment of our imagination, i.e. some kind of philosophical or literary ‘ghost’. Thomas Hobbes, for instance, argues that “Contempt, or little sense of the calamity of others, is that which men call cruelty; proceeding from security of their own fortune. For, that any man should take pleasure in other men’s great harms, without other end of his own, I do not conceive it possible.”[11] Bishop Joseph Butler, on his part, states that “[t]he utmost possible depravity, which we can in imagination conceive, is that of disinterested cruelty.”[12] David Hume, on this point, affirms: “Absolute, unprovoked, disinterested malice has never, perhaps, had place in any human breast”.[13]

The element of rational deliberation that Seneca and Aquinas observed in cruelty is adamantly underplayed in this second conception of cruelty, as Thomas Hobbes’ understanding reveals once more:

Revenge without respect to the example and profit to come is a triumph, or glorying in the hurt of another, tending to no end (for the end is always somewhat to come); and glorying to no end is vain-glory, and contrary to reason; and to hurt without reason tendeth to the introduction of war, which is against the law of nature, and is commonly styled by the name of cruelty.[14]

Rather than a vice, for which a person must take responsibility, cruelty morphs into a malady of the soul, the result of a poor, incompetent or broken mind, which reduces the humanity of its carrier and makes her closer to wild animals. Perhaps, this malady can be cured, or at least confined by appropriate measures of social hygiene. After all, animals can be tamed and trained; though sometimes they are put in cages or butchered. And the cruel human person, now likened to the beast, can be treated instrumentally, like commonly practised with horses and pigs; all this, naturally, being the case for the greater good of the commonwealth to which she and her victims belong.

Cruelty as Avoidable Harm

The idea of cruelty as something sick, if not even something sickening, colours also the work of the French Renaissance sceptic Michel de Montaigne. In his Essays, Montaigne observes that “cowardice is the mother of cruelty”[15] and states:

I cruelly hate cruelty, both by nature and by judgment, as the extreme of all vices. But this is to such a point of softness that I do not see a chicken’s neck wrung without distress, and I cannot bear to hear the scream of a hare in the teeth of my dogs… Even the executions of the law, however reasonable that may be, I cannot witness with a steady gaze.[16]

As for wars, it is worth repeating that Montaigne remarks: “I could hardly be convinced, until I saw it, that there were souls so monstrous that they would commit murder for the mere pleasure of it… For that is the uttermost point that cruelty can attain.”[17] The conceptions of cruelty as vice and sadism are accounted for in Montaigne’s reflections, but they are also subtly advanced to a broader condemnation of cruelty as harm to be avoided: capital punishment might be reformed, hunting abandoned, and wars prevented. In this perspective, his contribution to the understanding of cruelty in Western history is momentous, just as momentous were his Essays for the West’s intellectuals in the three centuries following their publication, and it connects the modern conceptions with the ancient one. Moreover, Montaigne is the first Western intellectual to devote an entire essay to the topic of cruelty—a stark sign of how genuine was his hatred for cruelty. “Montaignesque” is therefore the third conception of cruelty to be presented, i.e. cruelty as harm to be avoided.

The champions of the European Enlightenment are probably the most vocal and best-remembered members of this approach. Montesquieu, for example, labels as “cruel… torture” and gruesome “punishments”, legal servitude for insolvent debtors and colonial occupation.[18] In his essays On Tolerance, Voltaire describes as eminently cruel all wars of religion, whilst in Candide he condemns as such rape, corporal punishment and mutilation, even when lawfully administered in the name of justice.[19] Adam Smith, champion of the Scottish Enlightenment, ascribes the attribute “cruel” to infanticide,[20] personal vendetta,[21] economic monopolies,[22] burdensome taxes of succession or of passage of property,[23] the suffering of the “race of labourers” in periods of economic recession,[24] and mercy to the guilty.[25] In Italy, Pietro Verri argues that “[r]eason can show [what] is unjust, extremely dangerous, and immensely cruel”—and reason led him to condemn “torture” as “cruel”.[26] Cesare Beccaria, the most influential penal reformer of all times and both a friend and a student of Verri’s, condemns torture as cruel too, whilst also noting: “man is only cruel in proportion to his interest to be so, to his hatred or to his fear.”[27] Hence, it ought to be a duty for the legislator to “[c]ause men to fear the laws and the laws alone. Salutary is the fear of the law, but fatal and fertile in crime is the fear of one man of another. Men as slaves are more sensual, more immoral, more cruel than free men”.[28] For Jean-Antoine-Nicolas, Marquis de Condorcet, instead, “cruel” is the institutional neglect of “the progress of education”, for it constitutes nothing but the shameful misdeed of “abandoning men to the authority of ignorance, which is always unjust and cruel”.[29] Even the non-instrumental Enlightenment thinker par excellence, Immanuel Kant, does espouse the spirit of reformation of his age, and calls “most cruel” the institution of “slavery” exercised in the “Sugar Islands” by Dutch landowners,[30] whereas merely “cruel” are the “duels” fought in the name of “military honour”, which, like “Maternal Infanticide”, lead to cases of “Homicide” as distinguished from “Murder”.[31]

19th– and 20th-century political and legal reformers followed in the footsteps of the ‘enlighteners’ of the 18th century. Amongst them are also Judith Shklar and Richard Rorty. Judith Shklar, who was a Montaigne scholar, defines cruelty in two ways. The former reads: “Cruelty is… the wilful inflicting of physical pain on a weaker being in order to cause anguish and fear… [it is] horrible… [it] repels instantly because it is ‘ugly’… and disfigures human character”. The latter reads: “Cruelty is the deliberate infliction of physical, and secondarily emotional, pain upon a weaker person or group by stronger ones in order to achieve some end, tangible or intangible, of the latter.” Judith Shklar believes that cruelty, to a meaningful extent, can be controlled by appropriate doses of liberalism, which is itself in many ways a child of the 18th century: “the first right is to be protected against the fear of cruelty. People have rights as a shield against this greatest of human vices. This is the evil, the threat to be avoided at all costs. Justice itself is only a web of legal arrangements required to keep cruelty in check.”[32] Good laws and good political arrangements can reduce the pain that we impose upon/suffer from weaker/stronger creatures like us. That is the hope animating the American and the French Revolutions, as well as many of the emancipatory struggles fought during the following two centuries. Still, additional cruelties can be retrieved—and rejected—in other areas too. Giacomo Leopardi, for one, aims at a different target. He associates cruelty with the rewards and punishments awaiting us post mortem [after death], which he claims to be nothing but the sorrowful fictional creations of tragically misguided philosophies and religions. Whether “healthy or sick”, these creations are, in his view, signs of “cowardice” and mere “childish illusions” that were developed in the face of “the absence of any hope, …the desert of life, …men’s infelicity[,]… and destiny’s cruelty”.[33] Though living as such is cruel in and for itself, even crueller it is to live in fear of the priest’s gloomy superstitions or the philosopher’s hollow concepts.

Tom Regan sketches a fascinating taxonomy of cruelty, which he derives from yet another area that seems engulfed with cruelty: the human treatment of animals. As Regan writes:

People can rightly be judged cruel either for what they do or for what they fail to do, and either for what they feel or for what they fail to feel. The central case of cruelty appears to be the case where, in Locke’s apt phrase, one takes ‘a seeming kind of Pleasure’ in causing another to suffer. Sadistic torturers provide perhaps the clearest example of cruelty in this sense: they are cruel not just because they cause suffering (so do dentists and doctors, for example) but because they enjoy doing so. Let us term this sadistic cruelty… Not all cruel people are cruel in this sense. Some cruel people do not feel pleasure in making others suffer. Indeed they seem not to feel anything. Their cruelty is manifested by a lack of what is judged appropriate feeling, as pity or mercy, for the plight of the individual whose suffering they cause, rather than pleasure in causing it… The sense of cruelty that involves indifference to, rather than enjoyment of, suffering caused to others we shall call brutal cruelty…Cruelty admits of at least four possible classifications: (1) active sadistic cruelty; (2) passive sadistic cruelty; (3) active brutal cruelty; (4) passive brutal cruelty.[34]

Whichever class of cruelty we encounter in life, Regan believes that we must try to eliminate it. In particular, he focuses on (3) and (4), i.e. the types of cruelty that seem to characterise the human-animal relationship in contemporary societies. Persons are not only cruel to other persons: as long as pain is taken to be a relevant ethical factor, then also animals can become victims, and maybe even perpetrators (though Regan does not explore this avenue).

Cruelty as Paradox

As inheritors of the projects initiated in the 18th century, we can find Shklar’s and Regan’s definitions rather appealing. However, how many types of cruelty and cruel areas of behaviour can be actually tackled? How many revolutions, with their load of gunpowder and dynamite, should be fought? If three centuries of worldwide-expanding liberalism, culminated with Francis Fukuyama’s post-Cold-War proclamation of “the end of history”, have not eliminated it, what reasonable expectations can be entertained vis-à-vis the future?[35] Few are the philosophers who have pondered upon the paradoxical character of cruelty—a fourth conception that can also be retrieved in the history of Western thought. Cruelty persists within our lives and societies despite its being commonly denounced as something extremely negative and, above all, despite the recurring attempts to promote social progress and reform existing institutions. Judith Shklar herself admits that “cruelty is baffling because we can live neither with nor without it” and this is probably the reason why:

Philosophers rarely talk about cruelty… I suspect that we talk around cruelty because we do not want to talk about it… What we do seem to talk about incessantly is hypocrisy, and not because it hides cowardice, cruelty, or other horrors, but because failures of honesty and of sincerity upset us enormously, and they are vices which we can attack directly and easily. They are easier to bear, and seem less intractable.[36]

Philip P. Hallie marks a notable exception to the commonplace avoidance of the subject denounced by Judith Shklar. Firstly, Hallie defines “cruelty” as “the infliction of ruin, whatever the motives”[37] or, in two alternative versions, “the activity of hurting sentient beings”[38] and “the slow crushing and grinding of a human being by other human beings”.[39] He then distinguishes the instances of “cruelty upon humans” between those “fatal cruelties” that are due to nature and the far from uncommon “human violent cruelty” that is due to our fellow human beings.[40] To the latter he adds “implicit” or “indirect” cruelties, i.e. cruelties arising from “indifference or distraction” rather than from evident “intention to hurt”.[41] Thus understood, human cruelty can be further divided into “sadistic” and “practical”: whereas the latter refers to forms of instrumental cruelty, the former is “self-gratifying”.[42] By way of this articulate taxonomy, richer than Tom Regan’s itself, Hallie attempts to encompass and map the vast, polymorphous universe of cruelty, whose intricate nature explains perhaps its little permeability to philosophical analysis. Secondly, Hallie cuts the Gordian knot of cruelty’s intrinsic complexity by referring to it as a paradox, candidly and straightforwardly—in a book’s very title. Why simplifying something that cannot be simplified? Why misrepresenting it, in the attempt to represent it clearly? Hallie has in mind five particular cases of paradoxical cruelty:

  1. Cruelty brought about without any open “intention to hurt”, but in the name of altruism, happiness, justice, etc.[43] “Substantial maiming” can derive from “wanting the best and doing the worst”.[44]
  2. Cruelty caused by genuine “intention to hurt”, but aimed at educating and therefore avoiding worse cruelties, e.g. “in terrorem” [terrifying] literary techniques.[45] As 20th-century French literary scholar André Dinar also observes: “The cruel authors cauterise the wounds that can be healed and mark with hot irons the incurable ones, so to expose their horror”.[46]
  3. “The fascinosum [lure] of cruelty”,[47] as well as its ability to titillate “sexual pleasure”,[48] higher “awareness”,[49] the liberation of sensual “imagination”[50] and “masochistic pleasure”,[51] are all pursued willingly and proactively, very often, by fully conscious persons.
  4. Cruelty implied by the “growth” or maturing of any individual through painful “individualisation” for the sake of “human authenticity”.[52] No person becomes mature, well-rounded and responsible without facing a significant amount and variety of pain in her life, and without learning how to face probable, if not inevitable, later doses of the same bitter medicine.
  5. “Responsive” cruelty enacted in retaliation to “provocative” cruelty,[53]g. penal chastisements and just wars, although “mitigation” is recommended.[54]

Being a devout Christian, Hallie has no desire to promote cruelty. Quite the contrary, his work on this topic begins as an effort to reduce it. Nevertheless, as he deepens his understanding of it, Hallie comes to recognise that not all cruelty ought to be avoided, for its disappearance would be more harmful than its persistence. This is particularly true of the painful processes of growth and maturation, as well as of artistic disclosure of sorrowful truths or extreme sexual elation. Moreover, in an implicit reminder of Beccaria’s own wisdom, Hallie admits that cruelty may be a necessary evil in the public sphere. As baffling as this may be, cruelty seems to find rather easily assorted justifications for enduring in many aspects of life.

Cruelty as Good

Some philosophers have stepped beyond the sole acknowledgment of cruelty’s paradoxical character and entertained plainly the seemingly contradictory notion that it might be good. This is the fifth and last conception of cruelty, which comprises two main groups of thinkers.

In the first group are included those thinkers who have argued that cruelty does not need to have intrinsic value (or disvalue), but instrumental value alone and, as such, that cruelty may be capable of fulfilling a positive function. For instance, cruelty can be a tool to promote the common good. Niccolò Machiavelli is among them. According to him:

Every prince ought to desire to be considered clement and not cruel. Nevertheless he ought to take care not to misuse this clemency. Cesare Borgia was considered cruel; notwithstanding, his cruelty reconciled the Romagna, unified it, and restored it to peace and loyalty. And if this be rightly considered, he will be seen to have been much more merciful than the Florentine people, who, to avoid a reputation for cruelty, permitted Pistoia to be destroyed [by the rioting between the Cancellieri and Panciatichi factions in 1502 and 1503].[55]

Jacques Derrida states something analogous when he writes in recent years: “Politics can only domesticate [cruelty], differ and defer it, learn to negotiate, compromise indirectly but without illusion with it… the cruelty drive is irreducible.”[56] Instead of combating cruelty at all costs, one ought to learn how to draw as much good as possible from it. After all, the initiation of social life makes itself use of cruelty: why should its continuation be devoid of it? This is what Gilles Deleuze and Félix Guattari seem to suggest, for example. The acquisition and continuation of the shared semiotic abilities that allow for human communities to develop is never devoid of cruelty. Schooling and socialisation are no free meal: “Cruelty is the movement of culture that is realized in bodies and inscribed on them, belabouring them.”[57] Sharing a similar awareness, Clément Rosset explores the instrumental role of cruelty in the private sphere, rather than the public one, and writes provokingly: “Joy is necessarily cruel”.[58] According to him, “[c]ruelty is not… pleasure in cultivating suffering but… a refusal of complacency toward an object, whatever it may be.”[59] Now, “the ‘cruelty’ of the real… is the intrinsically painful and tragic nature of reality.”[60] For instance:

[T]he cruelty of love (like that of reality) resides in the paradox or the contradiction which consists in loving without loving, affirming as lasting that which is ephemeral – paradox of which the most rudimentary vision would be to say that something simultaneously exists and does not exist. The essence of love is to claim to love forever but in reality to love only for a time. So the truth of love does not correspond to the experience of love.[61]

For Rosset, the answer to cruelty’s paradox lays in the nature of reality, which is ultimately cruel. Rosset’s thought could then be regarded as belonging legitimately to the fourth conception of cruelty as well, i.e. cruelty as paradox. In truth, the distinction between the fourth and the fifth conceptions is not clear-cut, and the same can be said of the distinctions between the other conceptions previously presented (especially between the first and the third, and the second and the third). These distinctions are mostly a matter of different conceptual emphasis, rather than of mutual incompatibility; and as we emphasise the fifth conception, it can be stated that, to a relevant extent, persons are shaped by cruelty and are bound to encounter it also and above all if they wish to derive a modicum of satisfaction from their mortal existence. The only way to live well, for Rosset, who was a Schopenhauer scholar, involves learning to embrace the suffering that life unavoidably unloads upon us. In the field of drama, Antonin Artaud echoes and expands Rosset’s tragic awareness: “Death is cruelty, resurrection is cruelty, transfiguration is cruelty… Everything that acts is a cruelty.”[62] To be is to be cruel—there is no way out of cruelty, which, however, must be conceived anew: “Cruelty is not just a matter of either sadism or bloodshed, at least not in any exclusive way… [It] must be taken in a broad sense, and not in the rapacious physical sense that is customarily given to it.”[63] Although never as clear as Rosset on what this novel understanding of cruelty may be like, Artaud developed a new set of shock- and scandal-filled stage techniques and communication devices, i.e. his Theatre of Cruelty, which was aimed at eliciting higher levels of personal awareness in the audience: “All this culminates in consciousness and torment, and in consciousness in torment”.[64]

In the second group are included those thinkers that have argued that cruelty might be intrinsically valuable, maybe even a virtue, which enriches our lives in a unique way and allows for the full realization of our nature. The most ‘in-famous’ example in this sense is that of the Marquis de Sade, who argues: “Cruelty is imprinted within the animals… that can read the laws of Nature much more energetically than we do; [cruelty] is more strongly enacted by Nature among the savages than it is among civilized men: it would be absurd to establish that it is a kind of depravity”.[65] Sade, who approves also of more refined forms of cruelty (i.e. the civilised libertine’s), infers from the naturalness and unavoidability of cruelty a reversed Rousseauvianism:

Remove your laws, your punishments, your customs, and cruelty will not have dangerous effects any longer… it is inside the civilized domain that it turns into a danger, as those capable of it are almost always absent, either because they lack the force, or because they lack the means to respond to the offences; in the uncivilized domain, instead, if it is imposed over the strong, then he shall be able to react to it, and if it is imposed over the weak, it will not be else than conceding to the strong according to the laws of nature, and this will not be inappropriate at all.[66]

Equally notorious is the case of Friedrich Nietzsche, whom the reader has already met repeatedly in this book. Idealising and idolising primeval societies, barbaric bravery and warrior mores, Nietzsche wishes to:

[E]mpathise with those tremendous eras of “morality of custom” which precede “world history” as the actual and decisive eras of history which determined the character of mankind: the eras in which suffering counted as virtue, cruelty counted as virtue, dissembling counted as virtue, revenge counted as virtue, denial of reason counted as virtue, while on the other hand well-being was accounted a danger, desire for knowledge was accounted a danger, peace was accounted a danger, pity was accounted a danger, being pitied was accounted an affront, work was accounted an affront, madness was accounted godliness, and change was accounted immoral and pregnant with disaster![67]

If Sade reverses Rousseau’s bon sauvage [noble savage (the term was never used by him, but is commonly associated with him)], Nietzsche reverses Seneca’s treatment of cruelty as vice. For Nietzsche, cruelty used to be a virtue in prehistoric or barbaric times, it is a fixed element in the human make-up, and it survives in countless rarefied forms today:

Cruelty is what constitutes the painful sensuality of tragedy. And what pleases us in so-called tragic pity as well as in everything sublime, up to the highest and most delicate of metaphysical tremblings, derives its sweetness exclusively from the intervening component of cruelty. Consider the Roman in the arena, Christ in the rapture of the cross, the Spaniard at the sight of the stake or the bullfight, the present-day Japanese flocking to tragedies, the Parisian suburban laborer who is homesick for bloody revolutions, the Wagnerienne who unfastens her will and lets Tristan und Isolde “wash over her” – what they all enjoy and crave with a mysterious thirst to pour down their throats is “cruelty,” the spiced drink of the great Circe.[68]

Given all this, as Nietzsche concludes, cruelty should be recovered in an honest and healthy way, for human beings are cruelty-prone animals that live in the mundane world, not the God-like, spiritualised, ‘fallen’ and heaven-seeking creatures of which religion and philosophy have pointlessly blared about for centuries. Just like all other animals, so do human beings have bodies, selfish selves, and ‘knightly’ instincts calling for competition, predation and domination. Humans are born to race against one another and the most deserving ones, in the end, ought to survive and lead. Any departure from this natural logic is a concession to degeneration and, essentially, an unhealthily indirect manifestation of repressed cruelty, which cannot but harm our species by letting slaves dominate over masters, priests over knights, and ignorant masses over cultured elites. Instead of understanding and embracing the cruel but actual reality of the world, which is the only place where true existential meaning can be found, the degenerate pursue mystification and escapism. Exemplarily, the loathed magician/pope of Nietzsche’s grand and initially ill-received philosophical allegory, i.e. his 1883–91 Thus Spoke Zarathustra: A Book for All and None, discovers this hard truth in his delirium, as he realises that his own pantheon of abstract instruments of power (angels, demons, God, etc.) is the utmost and most cruel betrayal of any chance for real fulfilment. Nothing of what he has been preaching during his life, in order to lead his flock, is true and truly valuable: “In vain! / Pierce further! / Cruellest spike! / No dog – your game just am I, / Cruellest hunter! /…/ Speak finally! / You shrouded in the lightning! Unknown! Speak! /…/ Surrender to me, / Cruellest enemy, / – Yourself![69]

Concluding Remarks

This brief overview of the five most common and/or most articulate conceptions of cruelty that can be retrieved in the history of Western thought shows already how diverse the interpretations of this term can be. Cruelty, like many other concepts that we employ regularly in our language, whether in ordinary or technical discourses, is inherently contested, i.e. it allows for a variety of readings, usages and applications. As Michael Polanyi used to argue in the 20th century, it is important for concepts to be adequately ambiguous, insofar as they are meant to grasp a plethora of subsidiary details that we are only tacitly aware of, and of some of which we may become aware by subsequent processes of analysis, elucidation, comparison, critique, reflection, study, etc. These processes may even lead to a breakdown in the applicability of the concept, which is then abandoned in lieu of alternative ones. This abandonment does not mean that the concept is mistaken or useless. Quite the opposite, a concept is correct and useful insofar as we successfully interact with other persons by referring to it, that is, by referring to phenomena by means of it. As a concept in both ordinary and philosophical language, cruelty is no exception to the way in which several conceptions can be produced of any such item, and an array of diverse realisations about human affairs can be unpacked from it by reflecting upon it—in this case, by thinking of the shadow.

 

Endnotes

[1] Lucius A. Seneca, De Clementia, translated by John W. Basore, London: Heinemann, 1928–35[55 AD], II.iv.1–4. Whenever possible, given the great variety of editions over the centuries of Latin classics, I use the standard referencing system for such sources.

[2] Ibid.

[3] Ibid.

[4] Ibid. I.xxiv.1–xxv.2.

[5] Ibid. I.xii.1–4.

[6] Ibid. I.ii.2–iii.3.

[7] Thomas Aquinas, Summa Theologica, translated by Fathers of the English Dominican Province, 1920[ca. 1268], <http://www.newadvent.org/summa/>, part II of part II, question 159, art. 1. I utilise here the standard scholarly referencing system for Aquinas’ Summa.

[8] Ibid.

[9] Ibid., art. 2.

[10] Ibid.

[11] Thomas Hobbes, Leviathan, London: Andrew Crooke, 1651, <http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/hobbes/Leviathan.pdf>, part I, chapter VI.

[12] As cited in British Moralists 1650–1800, edited by D.D. Raphael, Indianapolis: Hackett, 1991, vol. 1, 334–5.

[13] As cited in ibid., vol. 2, 72.

[14] Thomas Hobbes, Leviathan, part I, chapter XV.

[15] Michel de Montaigne, The Complete Essays, translated by Donald Frame, Stanford: Stanford University Press, 1998[1580], II, 27.  Given the great variety of editions of Montaigne’s essays, I do not refer to page numbers and use the standard scholarly system instead, i.e. book and essay number.

[16] Ibid., II, 11.

[17] Ibid.

[18] Montesquieu, The Spirit of the Laws, translated by Thomas Nugent, New York: Cosimo, 2011[1748], book VI, chapter, 12; book XV, chapters 1, 7 & 15; book XXVI, chapter 22.

[19] Cf. Voltaire, Oeuvres complètes de Voltaire, edited by Louis Moland, Paris: Garnier, 1877[1769].

[20] Adam Smith, The Theory of Moral Sentiments, 6th edition, London: A. Millar, 1790, <http://www.econlib.org/library/Smith/smMS.html>, part V, chapter I, §25.

[21] Ibid., part VI, chapter III, §12.

[22] Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, edited by Edwin Cannan, Indianapolis:  The Online Library of Liberty, 1901[1776], <http://www.econlib.org/library/Smith/smWN.html>, book IV, chapter 8, §17.

[23] Ibid., book V, chapter 2, §§116 & 125.

[24] Ibid., book I, chapter 11, §263.

[25] Ibid., book II, chapter I, §27.

[26] Pietro Verri, Osservazioni sulla tortura, Rome: Newton, 18 (translation mine).

[27] Cesare Beccaria, Crimes and Punishments, translated by James Anson Farrer, London: Chatto & Windus: 1880[1764], 140–1.

[28] Ibid., 243.

[29] Condorcet, Esquisse d’un tableau historique des progrès de l’esprit humain, Xème & IIème époque, 2004[1793–4], <http://www.eliohs.unifi.it/testi/700/condorcet/index.html> (translation mine).

[30] Immanuel Kant, Zum ewigen Frieden. Ein philosophischer Entwurf, part II, chapter 2, §3 (translation mine).

[31] Immanuel Kant, Philosophy of Law. An Exposition of the Fundamental Principles of Jurisprudence as Science of Right, translated by W. Hastie, Edinburgh: T. & T. Clark, 1887[1796], part II, section I, chapter 49, art. E.

[32] Judith Shklar, Ordinary Vices, Cambridge: Belknap, 1984, 237.

[33] Giacomo Leopardi, Operette morali, “Dialogo di Tristano e di un amico”, <http://www.leopardi.it/operette_morali.php>, (translation mine).

[34] Tom Regan, The Case for Animal Rights, Berkeley: University of California Press, 1983, 197–8 (emphases removed).

[35] Francis Fukuyama, The End of History and the Last Man, New York: The Free Press, 1992.

[36] Judith Shklar, Ordinary Vices, 3, 7 & 44.

[37] Philip P. Hallie, The Paradox of Cruelty, Middletown: Wesleyan University Press, 1969, 14.

[38] Encyclopaedia of Ethics (edited by Lawrence C. Becker, New York: Garland, 1992), s.v. “Cruelty”, by Philip P. Hallie, 229–31, 229.

[39] Philip P. Hallie, Lest Innocent Blood Be Shed: The Story of the Village of Le Chambon, and How Goodness Happened There, New York: Harper & Row, 1985[1979], 2.

[40] Philip P. Hallie, The Paradox of Cruelty, 5–6.

[41] Ibid., 13–4 & 29–31.

[42] Ibid., 22–4.

[43] Ibid., 15–20.

[44] Ibid.

[45] Ibid., 20–2.

[46] André Dinar, Les auteurs cruels, Paris: Mercure de France, 1972[1942], 7.

[47] Philip P. Hallie, The Paradox of Cruelty, 70–5.

[48] Ibid., 41 & 46.

[49] Ibid., 43.

[50] Ibid., 42 & 50.

[51] Ibid., 48.

[52] Ibid., 55–8 & 60–2.

[53] Ibid., 33.

[54] Ibid., 79–82.

[55] Niccolò Machiavelli, The Prince, translated by W.K. Marriott, 1908[1515], <http://www.constitution.org/mac/prince00.htm>, chapter XVII.

[56] Jacques Derrida, Without Alibi, translated by Peggy Kamuf, Stanford: Stanford University Press, 2002[2000], 252.

[57] Gilles Deleuze and Félix Guattari, Anti-Oedipus, translated by Robert Hurley, Mark Seem and Helen R. Lane, New York: The Viking Press, 1977[1972], 144.

[58] Clément Rosset, Joyful Cruelty: Toward a Philosophy of the Real, translated by David F. Bell, New York: Oxford University Press, 1993[1988], 17.

[59] Ibid., 17–20.

[60] Ibid., 76.

[61] Ibid., 98 (emphases removed).

[62] Antonin Artaud, The Theater and its Double, translated by Mary Caroline Richards, New York: Grove Press, 1958[1938], 101–3 & 85.

[63] Ibid., 102.

[64] Ibid., 114 (emphasis removed).

[65] Sade, La Philosophie dans le boudoir ou Les Instituteurs immoraux, Paris: Larousse, 1966[1795], 139 (translation mine).

[66] Ibid., 140–1 (translation mine).

[67] Friedrich Nietzsche, Daybreak, translated by R.J. Hollingdale, Cambridge: Cambridge University Press, 1997[1881], §18.

[68] Friedrich Nietzsche, Beyond Good and Evil, translated by Judith Norman, Cambridge: Cambridge University Press, 2002[1886], §229.

[69] Friedrich Nietzsche, Thus Spake Zarathustra, translated by Thomas Common, 1891[1883–91], part IV, §65, section 1 (generally known and translated as Thus Spoke Zarathustra).

Garrett Barden and Tim Murphy. Law and Justice in Community (Oxford: Oxford University Press, 2010)

The authors state at the beginning that they reject the idea that humans somehow are independent of each other and at some stage consent to becoming members of society; this is usually presented either as an actual historical fact or a conditional requirement on any public decision or as an idea of reason in Kant. The authors think of human beings as naturally social meaning that living in society comes naturally to humans and it is misleading or downright false to think that the primary fact about them is that they are separate individuals that at some stage decide to form a society. Society is part of human life from time immemorial and from the time that any human being is born she is a part of society; she would not stand a chance if she did not have a family to nurture her until she could provide for herself. A family is a social institution. From an evolutionary point of view many developed animals form groups where patterns of behaviour emerge from which human society may have developed. The point is that the question how or when human society was invented does not arise; human society was not invented, it is a basic, internal fact about human life.

One thing the authors discuss is the story behind Grágás (grey goose), the first written Icelandic law book. In 1117 the Icelandic parliament, Alþingi, decided that the law should be written down and published. Alþingi had been established in 930 and for nearly two centuries the laws were recited there during the weeks in late June when the parliament was sitting. It took three years to recite the laws in full so one third was recited every year; they were not all recited annually as it says on p. 1 in the book. Now the question is what is going on from the point of view of the law in this process from the settlement of Iceland in late ninth century AD, in 930 when the parliament was established, and the law recited until it was written down in the winter of 1117-1118? How should we account for this development of the law? The authors´ idea is that in any society there is something that might be called a living law which is not judge made law, positive law, in a sense state law, but the living law is the judgements and choices that people in any society make and become gradually accepted and approved in that society when they recur time and again. This process of gradually creating the living law is not formal in any sense, there is no formal debate or decree that establishes this law but it creates habits, practices, customs and mutual expectations that establish the jural relationships in that community. There is no sharp distinction between a legal realm and a moral realm. It is part of what the authors call “the communal law” or “the communal moral law” p. 3-4). So the living law is a moral tradition. Any moral tradition is such that some parts of it are implicit, others are explicit, and it is not possible to codify fully a moral tradition; there is no way that it is possible to write down all the moral rules and practices that make up a moral tradition. Historically the living law of any community is not written down, but it is a defining feature of the community and establishes entitlements which evolve through the interactions of people living together dealing with the jural demands that this imposes on them. Some of the entitlements may be written down when the communal sense of justice provides a basis for formulated law. Written laws can be either natural or conventional but according to these authors they are not understood as new laws imposed on the community, but are parts of the living law that emerges within the developing communal moral context. So the account to be given of Icelandic law until it was written down in 1117-18 is that at first it grew out of the concerns that the new environment in Iceland created, the judgements and choices of the inhabitants about their own lives and how they resolved their disputes, establishing mutual expectations, a sense of justice and jural relationships and social institutions like Alþingi. Ultimately this leads to the writing down of the law, but it does not mean that being written down created in any sense new laws, rather it was part of the living law of the community and had developed out of it.

This is a very interesting view of the origin of Grágás. I guess there may be differing opinions about how it squares with all the historical accounts that have been preserved about the development of Icelandic law until it was written down. But it is persuasive. This theory of the development of law is intended by the authors as a general account of how law develops and how various parts of the living law are related, so it should apply to any system of laws we care to examine at least in the European tradition. Their theory is also descriptive, it aims to explain law as a social phenomenon in terms of its function in human affairs. They avoid all normative assumptions in their theory. The third important feature of the theory argued for and applied in this book is a number of distinctions that are used throughout the book between the natural and the conventional, the internal and the external, the intrinsic and the extrinsic. I am not sure that the authors would be willing to call this a theory, but rather a method they use to figure out what is just.

The authors discuss many of the most important topics in modern jurisprudence such as justice, natural and conventional, ownership, law, force of law, natural law, justice and the trading order, to name some of them. There is no way in a short review to give the flavour of the analysis of these different issues but I want to mention one: justice and the trading order. This area is of great importance to modern societies and has been extensively analysed and theorised in various academic disciplines. One obvious question is whether there is anything to be gained from analysing the trading order from the Aristotelian perspective of the authors. The answer is yes; there is surprisingly much to be gained from doing so. The trading order is where reciprocal justice is the proper justice. The authors start by suggesting that “in the trading order free exchanges are reciprocally just.” (p. 91). They make another plausible assumption that it is only in the context of exchange and the trading order that reciprocal justice exists. The trading order exists only as a part of a wider, more complex social order and is constantly influenced by this wider order. Hence, there is no trading order governed only by reciprocal justice. The authors contend that if a trading order has developed one must first understand how it works to figure out what legislation is necessary. They also argue that it is a difficult question of fact whether the trading order can be centrally managed. It is the considered opinion of the authors that a trading order cannot be centrally managed. They are careful to point out that it does not follow from this that the trading order cannot cause all sorts of social problems that must be dealt with and that there are those who cannot sustain their lives by trading. The idea is that these are not problems of the trading order but must be dealt with by other means. The central idea of the trading order is that the two or more persons who want to trade must always be free not to for the exchange to be just. Any legislation and management, central or otherwise, of the trading order must respect this fact. It seems that any central management aiming to control correct the result of the innumerable exchanges of the trading order becomes problematic given these assumptions.

In modern political philosophy normative issues are contentious and important. Aristotelian political philosophy has not shied away from normative assumptions and issues. It is very informative to see the Aristotelian way of analysing political and jurisprudential problems working from different premises than is ordinarily done. This book is both radical and traditional and it is splendidly argued. It deserves to be widely read and to be influential.

Responses to the contributors

The papers were illuminating and, when they disagreed with the book, either rightly looked for further clarification or identified genuine shortcomings with some, but not all, of which I try to deal.

I am very grateful for Guðmundur Heidar Frímansson for his generous and accurate review and particularly for his correction of the assertion made on p.1 of LJC that the Law Speaker recited all the laws annually at the Althingi, when, in fact, only one third of the corpus was recited annually. I regret and apologise for this mistake.

 

Finally, I would express my thanks to our editor, Giorgio Baruchello, who has gone to much trouble to publish these essays. I shall respond to them in the order in which Giorgio received them and sent them to me

Hjördís Hákonardóttir: “Equality: A Principle of Human Interaction.”

For Hjördís [H] that people ought to be treated equally is a fundamental principle in her idea of human society; she argues “…that equality must have an even stronger, and in particular, a more fundamental role in a just and flourishing community in which ‘we can lead our lives together in peace and justice’.” [The internal quotation is from LJC.] There seems to be an omission in her written text; it is not said what equality must be stronger than. I understand her to have meant that equality must have an even stronger and more fundamental role than justice. Earlier in her paper she notes correctly that in LJC that a right is held to exist only when it is established. With that she disagrees: “I have to doubt that an entitlement to a fundamental right depends on its acceptance; that claim seems to go against the very essence of the nature of fundamental rights.”

I think that those disagreements are due to some extent, but perhaps not entirely, to the use of words, for there is nothing in LJC to support the idea the people are to be treated unequally when it is just to treat them equally. Indeed, both Aristotle’s and, centuries later, the Roman definition of the just includes the idea that equals are to be treated equally and unequals unequally. Furthermore, if one genuinely holds that two people are for present purposes in all relevant respects equal, it is impossible reasonably to treat them unequally, no reasonable discrimination would be possible and any discrimination between them would necessarily be based upon a criterion that one had claimed to be irrelevant. Bernard Williams, whom H quotes approvingly, does not claim that everyone is to be treated equally; his claim is that, qua human, people are to be treated equally and to discriminate between them requires the introduction of a relevant criterion. The most fundamental principle is not that one ought to treat all humans equally, for that principle inevitably evokes the question, Why? And the answer to that question is that humans, in important and fundamental respects, specifically but not exclusively qua human, are equal. Accordingly in the respects that they are equal, they ought to be treated equally. That principle evokes no further questions because, as I have said, it is impossible to distinguish between equals; that is simply the meaning of things being equal.[1] The crucial question then becomes how are humans qua human to be treated; to which question to say that they are to be treated equally is not a satisfactory answer. The answer that they are to be treated justly is a heuristic answer: a human qua human is to given what is due to him or her qua human. What that is is not yet known but is the work of justice to discover. However, there are situations in which one does not treat other simply qua human; in those situations humans are in very many important and relevant respects unequal and in those respects one ought to treat them unequally. There is, for example, a crucial difference between one accused of a crime, one acquitted of a crime and one convicted of a crime. To claim that the one accused, the one acquitted and the one convicted are to be thought of as in all respects equal and all three to be treated in the same way is unreasonable unless one holds that the manifest differences between them are irrelevant. Many manifest difference are, of course, in some circumstances irrelevant: to the judge on a refugee tribunal, “It is irrelevant whether the claimant is a man rather than a woman; whether he has brown hair; whether he is highly educated; whether he speaks the language of the state where he seeks refuge; and so on indefinitely” (LJC ,Ch.6.6. 159). Two manifestly different applicants to a refugee tribunal are taken to be relevantly equal and to be distinguished only on the grounds of fulfilling or not fulfilling the criteria of the Refugee Convention. But citizens, non-citizen residents, temporarily visiting workers, asylum seekers and tourists are usually treated differently because it is usually held – rightly or wrongly – that to discriminate between them on that set of criteria is just. The rights of citizens and non-citizen residents are not identical precisely because when they are being considered according to that difference they are not then being considered simply qua human.

Whatever one’s position on the matter of procured abortion, much debate has turned on whether a foetus at one stage of development is relevantly equal to one at a later stage and from a new born infant. The differences between them at the different stages cannot reasonably be denied; the question is whether or not those differences are sufficient for abortion to be morally good at one stage and morally bad at another. In the Twelve Tables, the first law on the fourth table requires that “A notably deformed child shall be killed instantly”. Clearly, the makers of that law considered the manifest difference between a well-formed and “a notably deformed child” to be a relevant criterion, and that the two kinds of children were relevantly unequal. In many modern states the manifest inequality between a foetus at one stage and one at another is taken to be a criterion permitting abortion at the earlier stage; none of those states, I think, accepts deformity as a criterion for infanticide. The more basic principle is, therefore, the ancient principle of justice: “treating equals equally and unequals unequally render to each what is due”. What constitutes relevant equality and inequality, what is due both in the general case and in the particular circumstances, remains to be settled and is the fundamental business of moral and jural argument. It was not the business of LJC whose two authors, Tim Murphy and I, could differ on such questions. From what is said of the argument about abortion and infanticide in this paragraph, nothing about my personal position on either question can be inferred.

H thinks the position taken in LJC to be a “down to earth relativistic view”. I think it is not; if I am wrong, the book is deeply and irretrievably incoherent. It would be relativistic if, and only if, it included the proposition that there could be no true moral conclusion, a proposition that is most explicitly argued against at pp. 175 -6 but which runs throughout. What is said, on the one hand, is that people have had, have and will continue, for various reasons, to have different and incompatible views, and, on the other hand, that the conclusions that humans reach can be no more than the best available in the light of present understanding and evidence; some are more tentative than others; and so physicists know that their present conclusions are not “absolutely certainly true”. As Victor Hugo wrote “La science est l’asymptote de la verité, elle approche toujours, elle ne touché jamais” The evidence for very everyday common sense judgements is often much stronger. No one now reading this essay can reasonably doubt that it is written in English; someone who knew no English whatsoever would simply not know.

The proposition that NN and AA are entitled to be treated equally rests on the underlying presupposition that the situation in which they are to be treated equally is one in which any differences – inequalities – between them are irrelevant and to be ignored. The evidence for the proposition that equals are to be treated equally is the discovered inability of human intelligence to distinguish between A and A, sometimes referred to as the principle of identity. The principle itself – not its theoretical discovery – is a natural and unavoidable characteristic of the human mind. To hold that men and women are to be treated equally is not to hold that men and women are in all respects equal, which manifestly they are not, but that the inequalities (or ‘natural differences’) between them are to be ignored in the some situations.[2] It is, of course, true and acknowledged in LJC , that unjust distinctions on foot of those inequalities have been, still are, and will continue to be made. That differences do not always justify distinctions is a very ancient discovery, for example, the discovery that in a court case the differences between the poor and the rich are not to count. The earliest written expressions of that discovery with which Westerners are familiar are in the Torah (Ex. 23.6; Dt.16.19); when or where it was discovered is unknown but before the rule was written it was already known in practice that it was just to conduct adjudication in that way. The inequality between the litigants was explicitly recognized but in that situation no account was to be taken of it. There are, however, situations in which some inequalities are relevant: e.g., who is entitled to the franchise and who is not depends on what are held to be relevant inequalities – the age at which a person is entitled to the franchise differs from jurisdiction to jurisdiction; but no one suggests that children of three years ought to be enfranchised. Foreigners entitled to residence in a state differ from citizens and whether or not they should be entitled to vote may be disputed. No-one I suspect finds it unacceptable to make those and similar distinctions. The adage – which does not settle how they are to be treated – “equals are to be treated equally, and unequals unequally” may be more clearly, if more pedantically, expressed: “those who are relevantly equal are to be treated equally; those who are relevantly unequal are to be treated unequally”. The question turns on determining who, and in general what kinds of people, and in what kinds of circumstance are relevantly equal or unequal, and about that there will be dispute. And what is the just equal or unequal treatment remains to be discovered.

Women and men are undeniably unequal in very many ways. The question is to determine in which situations some of their inequalities are to be taken into account and in which some or all of their inequalities are to be ignored. Neither H nor I think that the differences between women and men or between landowners and tenants is relevant to granting the franchise but, as everyone knows, that was not always, and even recently, the prevailing view throughout Europe. Did women in the Canton of St Gallen have the right to vote in 1956? The general rule governing the franchise is that in any particular state in which the franchise exists, if only a defined type or kind of person has the right to vote, then only if NN is that type or kind of person is NN entitled to vote. If two men dispute over the ownership of a piece of land, they are to be treated equally in that, for example, their political standing in the society, their physique, or their wealth is not to be taken into account, but when the court, having heard the opposing arguments with equal care, determines that land belongs to NN rather to AA they are no longer to be treated equally so that the land is not to be divided equally between them but be given to NN.[3] What is just is equality and inequality according to a criterion; when people are equal or unequal according to the relevant criterion they are to be treated equally or unequally.

With H, I agree that men and women were once generally thought of as unequal in ways that were mistaken but I find it odd that she quotes Kymlicka apparently approvingly when he writes that ‘women have been “associated with the merely animal functions of domestic labour” ‘. (The internal quotation is from Kymlicka.) Are people – both men and women – who work in the university restaurant engaged in ‘merely animal functions’? Preparing food, which in many cultures in the province of women, is a cardinal difference between humans and other animals, and when we eat we are not engaged in a merely animal function. Is feeding babies at the breast a merely animal function? Is the education of babies and small children, a task that has traditionally fallen to a greater extent to women, a merely animal function? In many hunting and gathering communities, women gathered (and, in many cases, what they gathered provided the main sustenance for the group) and men hunted? Is hunting cultural and gather a merely animal function? Universally, young children learn their language predominantly from women – not necessarily or often only from their mothers – and did they not learn to speak they could not become normal fully developed human adults and human society would not persist beyond one generation. Only if one restricts by arbitrary definition one’s notion of what constitutes a cultural goal to what some men rather than women or other men do, and thinking of every other work as the product of natural instinct is it the case that women’s activities do not achieve cultural goals.

A very good example of women being treated differently from women in ways that would nowadays be generally thought unjust is found in Perelman’s discussion of women’s claim to enter the legal profession as either barristers or solicitors in Belgium between 1889, when it was thought “ too evidently axiomatic to require explicit legislation that the administration of justice was reserved to men” and 1946 when “the reasons given by the Cour de Cassation in 1889 seemed to be so contrary to contemporary opinion that they had become ridiculous.”. [4]

If those who are relevantly equal are to be treated equally and those who are relevantly unequal to be treated unequally, is equality then no more fundamental than inequality? H agrees with Bernard Williams that, as she writes, “Any difference in the way men are treated must be justified …” I think that to be a crucially important and true statement with which I totally concur. I do not understand anything that I have written here or anything found in LJC goes against it. But equality too needs to be justified, for the moral question always is either the particular “What am I to do now?” or the general “What is to be done in this kind of situation?” In the domain of justice those question become “What is now to be rendered to whom? And “In this kind of situation, what is to be rendered to what kind of person?

In our everyday dealings with one another inequalities may be more apparent and the temptation great to take them inappropriately into account when it is to one’s profit to do so, as when another’s interest clashes with my own and I am tempted in bad faith and unquestioningly to prefer mine. The virtue of justice demands more of us; the other is a demand to go beyond ourselves. The admonition that the judge must not treat the poor and the rich differently is necessary, not simply because it is good which it is, but because the temptation to do otherwise may be great. The injunction to treat everyone with equality of concern and respect risks becoming vacuous precisely because it is apparently too exact and tends to evoke no further question. What does it mean to say that dictators guilty of genocide – of which in the last century there have been many – are to be treated with the same concern and respect as their victims or opponents? I cannot think of those who joined the Dutch Nazi Party, the NSB, and assisted the “Green Police” – German Police force that concentrated on rounding up Jews for deportation – with the same respect as I think of those Dutch non-Jews who tried to protect their Jewish compatriots; and I do not think that I should. Even when only thinking about other people, the question as to what is due to whom arises? Thus, the injunction to treat everyone justly at once evokes the question as to what in the particular circumstances is just? I do not for a moment think that Ronald Dworkin thinks otherwise; but the adage does not make that clear.

H contends that an entitlement to a fundamental right does not depend on its acceptance; she is, consequently, reluctant to accept the idea in LJC that a right exists only if it is acknowledged. Again, the disagreement is, I think, at least in part, a matter of how the words are used. The rules governing citizenship vary from state to state and, within the same state, may vary from time to time. In Ireland, by the Constitution of 1937 it was established that a person born in Ireland was entitled to Irish citizenship irrespective of the citizenship of the parents. By the 27th amendment to the Irish Constitution in 2004, that right was abolished, and the right to citizenship now depends on the citizenship of one’s parents – only if at least one parent is a citizen, is the child entitled to citizenship.  Those who voted against the amendment – as I did – may think that it was a great and sad mistake to revoke the former right and that the state is the worse for it. The majority was not of that view. But, however one thinks of the matter, in Ireland to be a citizen because one has been born in Ireland is not a right. It once was, I think that it ought still to be, but it is not. The question as to whether or not something is or is not a right or entitlement is a question about present jural fact; a question about what rights actually exist, not about what rights ought or ought not exist.

If one writer uses the word “right” to mean “an entitlement that ought to exist whether or not it does” while another uses the same word to mean “an entitlement that actually exists in a given jurisdiction” they are only apparently contradicting each other and are in fact writing of different things. I think that when H writes of fundamental rights: “I have to doubt that an entitlement to a fundamental right depends on its acceptance…” she is using the word to mean “an entitlement that ought to b”. She gives as examples of “natural” or “human” rights those set down in the Universal Declaration of Human Rights. It is true that the rights in that document are set down as they might have been enacted in particular states; for examples, in Article 9 it is asserted that “ “No one shall be subjected to arbitrary arrest, detention or exile”; in Article 21 (1) that “Everyone has the right to take part in the government of his country, directly, or through freely chosen representatives.”; in Article 26 (1) “That everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. …”; and in Article 19 (1) “Everyone has the right to freedom of movement and residence within the borders of each state.”

It is also true that René Cassin and others involved in the composition of the Declaration hoped that it would become law in all states. The status of the Declaration and of the rights set down in it have been discussed at length, and the emergence of a Court of Human Rights and other international courts has established rights that were not until then rights. I shall ask only in what senses and to what extent did the rights in the Declaration exist at the time of its composition in 1948.

It is clear that those who composed the Declaration thought that the rights set down in it ought to exist in the kind of state or communities they had in mind. They were not thinking of those hunting and gathering or nomadic-pastoral societies that still existed in which some of the rights in the Declaration would make little or no sense. It does not make good sense to say that in a small hunting and gathering community education shall be free at least in the elementary stages, when what is meant in the Declaration is that the financial cost of a child’s education will not fall directly upon the parents but upon the state that will pay for it through its power of raising taxes or that (Article 24) “Everyone has the right to rest and leisure and periodic holidays with pay.” Such rights not alone do not, but cannot, exist in a hunting and gathering society. The Ngatatjara of Western Australia are not a state but, thinking of them as a society, the right to freedom of movement set out in Article 13(1) quite explicitly does not exist since parts of the land that they think of as theirs are forbidden to men and other parts to women. Such rights are simply not applicable to humans as humans but only to humans living in a certain kind of state and, in some cases, (eg Article 24) only to certain kinds of people, namely, paid employees.

The framers of the Declaration were trying to work out a set of rights that would enable the recovery of societies from the experienced but still hardly imaginable collapse of European civilization. The Second World War the European theatre was of two kinds: an imperial war similar to the First World War and other wars with which Europe had for centuries been familiar but it was also the extraordinary, horrifying and scarcely believable Nazi disease that had revealed, to the European self-satisfied moral sense of itself, an unsuspected or not clearly acknowledged evil at the heart of European civilization. Had that disease not been sufficiently widespread in the prevailing communal morality (the living law) of Germany and the countries that it occupied, Naziism would not have succeeded. The rights expressed in the Declaration had not in fact existed in Nazi Germany or in the states that it had overrun. Consider again Articles 9 and 13 (1): “No one shall be subjected to arbitrary arrest, detention or exile.” and “Everyone has the right to freedom of movement and residence within the borders of each state.” H’s doubt has led me to clarify my thinking. A right may be absent in several ways not only one. It may not exist in a community because it has never occurred to anyone to introduce it – I suspect it has never occurred seriously to anyone to give the right to vote to three year old children or to visitors who happened to be present on election day. It may not exist because, although it has been considered, it has been rejected, as the right to citizenship by birth in the state has been rejected in Ireland. It may not effectively exist because, although it is formally established, it is not honoured, as it is alleged that, during the war in Irak, the right of prisoners not to be tortured (Article 5) was not honoured by the UK, the US, the other states that allowed their aeroplanes carrying prisoners to land on their territory, and, obviously, the states, such as Libya, on whose territory and by whose servants the alleged torture occurred.

 What was the status of the right set down in Article 9 “No one shall be subjected to arbitrary arrest, detention or exile”? It may once have been, but in 1948 was not, a new and surprising thought. There had no doubt been in the past, and still were, states where arbitrary arrest, detention and exile at the whim of the ruler were commonplace and at least acquiesced in by those who could do little about them, but, for centuries, that the ruler’s authority was limited had been accepted in theory in Europe. Europeans had begun to assume, more or less confidently, that they enjoyed that right – it was part of the rule of law. Until Naziism and Stalinist Communism. There had been times when people had not the right to freedom or thought or religion [see Articles 18 and 19 of the Declaration] and to an extent that situation remained as in Francoist Spain. It had at times been forbidden to be Catholic or Protestant or Jewish or Islamic or Atheist … but never, until Naziism, had it been the case that some people were forbidden not only not to be themselves but, quite simply, not to be. There had been massacres and various kinds of killing had been legal but never before had it been law that a particular race was to be eliminated. The Nazi state had removed, from a kind person, not because of what that person thought but because of what that person unchangeably was, the right to exist.  Here, perhaps, is the core of the ambiguity. Dutch Jews that were sent to the transit camp at Westerbork and thence to Auschwitz or other extermination camp were not treated with a concern and respect to which other Dutch citizens had a right; under Dutch law they had the right not to be exterminated; under Nazi law they ought to have had that right but had not. The verbal ambiguity arises because we can, somewhat confusingly, describe that situation in the sentence: “It was not right that the Jews had not that right”. Where Dworkin writes of “a natural right of all men and women to equality of concern and respect …simply as human beings…” I should write that when I deal with human beings simply as human beings I ought to treat them with equal concern and respect – although it is yet to be discovered what that concern and respect requires – and that at that level everyone ought to be so treated and to have that right acknowledged in the law, but when I think of Hitler, Goering, other dictators and their followers I think of them not “simply as human beings” but a men and women who did things for which I cannot respect them. Men and women arraigned before a war crimes tribunal are not simply human beings but are accused of crimes and ought, as accused not simply as human beings, to have the right to be properly judged and to be convicted only if the available evidence is sufficient. But once convicted they are no longer treated as accused; and the rights of the accused and the convicted are different. They remain human beings and what rights they have simply as human beings remain. Two people thought of simply as human beings are equal – just as Q and Z considered simply as letters are equal – and cannot be treated unequally for to treat them unequally is inevitably to introduce a distinguishing criterion.

This question remains: did Jews in Nazi Germany and in the occupied countries have the right to live? That they ought to have had that right is to me and, I suspect, to all readers, correct. But that is not the question. The question is one of fact: did they in fact have that right? The answer to that question is that they did not. They had had it; they no longer had. There is a further question: did many know that Jews ought to have retained that right? Certainly some did and for them a practical question – sometimes called a question of conscience – arose as to what they were to do about it. It was to a situation of that latter kind that Chaim Perelman referred when he wrote in the passage quoted in LJC (fn 53, p.158): “When clearly iniquitous legislation prevents him, for whatever reason, from carrying out his task in accord with his conscience, the judge is morally obliged to resign. He is not merely a calculating machine; and if by his participation he contributes to the functioning of an iniquitous order, he cannot hope to evade his personal responsibility.” That crux applied and applies to each one of us. Suppose another possibility. Suppose, which was not the case, that everyone – other than Jews – had been convinced that it was right to eliminate Jews and that the very idea that Jews might have the same right to live as others simply did not occur to anyone; what then is to be said of a Jew’s right? Not alone do they not then in fact have the right but now it occurs to no-one – except themselves – that they ought to have it. When, because of what they believed, Catholics were killed by Protestants, Protestants by Catholics, Cathars by Christians , Jews by Christians … it seems that few thought those actions wrong; people were thought not to have the right to “freedom of thought, conscience and religion …” (Declaration Article 18 and see Article 10 of the Déclaration des droits de l’homme et du citoyen”).  Those who thought that people ought not to have the right to freedom of thought … were wrong to think so but they did think so, and the right did not exist. Similarly, and this we all too easily forget, convinced Nazis thought that Jews did not have the right to live; they were wrong to think so, but they did think so. The great horror of the Shoah is not only that so many Jews (and others) were exterminated but also that many thought it was good (right) to exterminate them.

Unlike the physical, chemical, biological or zoological world in which we humans live, and the laws of which apply to us for we are animals, the properly human world is jural. It is the product of human feeling, thought and decision emergent on that animal base. It is in principle but never wholly in practice what it ought to be. Not alone are we fallible so that any time some of those things that we think ought to be we later discover ought not to be and, perhaps too, ought not to have been but we are also weakwilled – in an older and outmoded terminology “sinful”. We do what we ought not to do, and fail to do what we ought to do. Perelman’s judge may be “morally obliged to resign” – that is what he thinks that he ought to do – but he may fail, for whatever reason, to do so. A right that ought to exist and that people think ought to exist may not, and one that ought not to exist may prevail. A right that it is thought ought to be but is not, does not exist in practice, but it does nonetheless exist as what is thought ought to exist. It exists as an aspiration or a demand. Whenever anyone is convinced that they ought to do something, that conviction is present in the human world but what ought to be done but is not yet done does not in practice yet exist. There is a critical gap between the judgment that one ought to do something and the decision to do it. In that way, a right that ought to exist does not exist until it is acknowledged. What is demanded but not yet acknowledged is a claim. The seventeen articles in the French Declaration of 1789 were expressed in the indicative mood as rights; they were not yet rights but demands. The rights described in the Universal Declaration of 1948 were rights that its authors thought ought to exist in every state although they knew very well that in many states some at least they did not; it was perfectly evident then, as it still is, that the right expressed in Article 21 (1) “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”, did not, and still does not, exist in many of the member states of the United Nations Organisation. The rebels in the present civil war in Libya intend to establish rights that do not yet exist.

One who holds that a particular arrangement ought to be the case may be mistaken, just as one who holds that a particular factual statement is true may be mistaken. And so, about what ought to be the case there will inevitably be both disagreement, agreement and dispute and in coming to their different conclusions humans may be not alone honestly mistaken, but corrupt.

H early in her paper makes what I found to be an extremely important point about the “living law” which seems to her not to “suffice to promote ‘a context in which …we can lives our lives together in peace and justice. ‘ ” (The internal quotation is from LJC, xv). She is completely correct and completely at one with what is put forward throughout LJC. Neither any living law nor any legislation will produce a perfect human social order because, to paraphrase what she writes, the darker elements at work in humans will influence the order that will always in part be the production of those in power and will almost inevitably illegitimately and to a greater or lesser extent serve their sectional interests: “…the living law is not necessarily right and not necessarily universally shared. No human institution is utterly without bias [that is, without disordered sectional interest] and the living law is not an exception. It is not an unbiased, unchangeable, infallible supervening law but it does express what is, or has been, generally accepted to be good.” (LCJ, 53-4) “No moral tradition will be in all respects good; it will inevitably be corrupted by individual and group bias. Some powerful individuals or groups of individuals will, given time and opportunity, favour traditions that enhance their power over others…” (LJC, 63 ) The “communal law is not necessarily in all respects good, for in every society there are the relatively more or less powerful, and the more powerful can, and do, to a greater or lesser extent impose their biased and selfish interests upon the less powerful. Societies are at all times and inevitably dialectical” (LJC, 261) I should add that development, as distinct from mere alteration, is possible only if the present is imperfect; decline is possible only if it possible to fall away from present true discoveries and present good decisions. If one opinion, one decision, or one state of affairs is a good as any other, neither development nor decline, but only alteration, is possible.

What is crucial is that the living law and customs of a society are not the product initially of legislation, although they may later be taken up in legislation; they are simply the way in which over time and interaction people in a community think that they ought to live; its contents are “those ancient customs that, having being accepted by those who use them resemble written law” (Justinian: Institutes, I.II.9 and cf. Digest 1.3.32 ff) But, as H correctly insists, “it does not, …suffice to promote “a context in which ….we can lead our lives together in peace and justice.” The entire page in which the internal quotation is the final paragraph (LJC, p.xv) is dedicated to the proposition that human societies are intrinsically corruptible and will always be to a greater or lesser extent corrupt. The proper function and goal of law is to promote peace and justice but that goal will never be completely attained; humans remain prone to stupidity, pride, covetousness, anger, gluttony, envy and sloth.

With the proper function of the social order, which is to allow humans to live together in harmony and justice, slavery does not sit well. Slave owners commonly knew that the role of slave was not one that slaves could be expected to enjoy or in which they could fully and freely achieve the human good. And yet slavery existed, by some defended, by others attacked. Already in Aristotle’s time the institution of slavery was controversial. Aristotle notoriously defended it and seems to have thought that at least some men and women were naturally slaves whereas others were naturally masters. (The discussion is more subtle than headline condemnation allows.) The Sophists , Thrasymachus, Antiphon, and Lychophron among others argued against it and are said to be those to whom Aristotle refers when he wrote (Pol. 1253b20ff) that some “consider that the power of the master over the slave is against nature because it is only by convention that one is a slave and another a master, and that by nature there is no difference between them; and so, because it rests on power, the institution of slavery is unjust.” In Justinian’s Institutes (I.III.2 Digest 1.5.4.1) slavery is said to be “an institution of the law of nations (contitutio juris gentium) by which one is out under the dominion of another contrary to nature.” That is one of the very few passage in Roman Law where the ius gentium is distinguished from what is natural. [5](Ulpian’s definition of the ius naturale (Inst. I.II.Preamble) is rarely used and the term is several times identified with the ius gentium.). In the book on friendship in the NE Aristotle wrote that the master cannot be friends with the slave qua slave but qua man he can. [6]

That is an appropriate place to end, for the discussion of slavery shows, I hope, how H’s insistence of the natural equality of humans as humans has urged me to clarify some aspects of the idea of relevant equality and inequality. For that urging I am most grateful.

 

 

Hafsteinn Thór Haukasson: A few words on authority

Hafsteinn Thór’s (HTh) paper discusses Hart and Raz and raises a matter that is central to their work and is discussed but perhaps not concentrated upon in LJC: the distinction between moral and legal obligation. In response to HTh I shall discuss this question: how are the propositions “NN is morally obliged to do X.” and “NN is legally obliged to do X.” related? It is one of the matters in Oran Doyle’s paper and I continue the discussion in the response to that paper.

Here, without argument, I take “law” to mean the command of one entitled to command another who is reciprocally obliged to obey. “Law” is not used exclusively in that way in LJC.

 If NN is commanded by a thief to hand over his money, he is not legally obliged to do so because, by hypothesis, the thief is not entitled to command NN to do so. If NN decides to hand over his money he may later say that he was obliged to do so because he believed that had he not done so he would have be attacked. The thief had threatened him and he had believed the thief. His reason for yielding to the thief’s demand was that he preferred to hand over his money than to endure the pain that the thief had threatened. Was he morally obliged to act in that way? The proper answer is that he was if he thought that, in the circumstances, it was the good thing to do, and was not if he thought that, in the circumstances, it was not the good thing to do. Most fundamentally, one obliges oneself; one is obliged by one’s moral judgment that X is the good thing for one to do in the present circumstances. A general moral

norm that a particular person accepts expresses what that person thinks that it is good to do either always or for the most part in a kind of circumstance, e.g. it is never good to rape someone; for the most part it is good not to deprive someone of his property.

[7]

Hart’s example of the bank robber and my slightly different example of the thief (My example gets over the complication that the bank teller may have instructions to hand over money if threatened.) both make the assumptions that the person demanding money is not alone not entitled to do so but also doing what is wrong. In both cases, the person asked to give the money is asked to give it to someone who is not entitled to have it, and by someone who is not entitled to demand it. The difference between the bank robber who wishes to withdraw money from the bank , and the account holder who wishes to do physically the same thing is that the robber is not entitled to withdraw money whereas the account holder, depending on the state of his account, is.

In the effort to eliminate confusion four cases are worth considering:

 [1] AA is not entitled to command NN but, nonetheless, commands NN to do something that NN ought to do whether or not AA commands him to do it.

[2] AA is in general entitled to command NN but commands NN to do what NN ought not to do.

 [3] AA is in general entitled to command NN, and commands him to do what NN, absent the command, ought nonetheless to do.

[4] AA is in general entitled to command NN and commands him to do what NN, absent the command from AA, is entitled to do or not do.

The question as to why AA is or is not entitled to command NN is set aside for the moment. If it is assumed that if AA is entitled to command NN, then NN is legally and/or morally obliged to obey and that if AA is not entitled to command NN, then NN is not in principle and in the general case obliged to obey. A command as, for example, in [1] below to return a stolen wallet may relate to a specific case or may be the general command that stolen property is to be returned to its owner.

I shall consider each case briefly.

[1] AA is not entitled to command NN but, nonetheless, commands NN to do something that NN ought to do whether or not AA commands him to do it.

AA commands NN return the wallet that NN has stolen from MM. NN ought to return the stolen wallet irrespective of AA’s command. AA is not entitled to command NN. NN returns or does not return the wallet. If he does not return it, he will have failed to do what he ought to have done, what, as the term is used in LJC, “he was morally obliged to do.” If NN thinks that he ought to return the wallet and yet fails to do so, then he has failed to do what he thinks he ought to have done – what he thinks he was morally obliged to do. If he does return the wallet he does what he ought to do; if he returns the wallet and thinks that is what he ought to do, then he does what he thinks he ought – is morally obliged – to do. If NN does return the wallet, we may yet ask why he did so. He may have done so simply because he regretted having stolen it, had become convinced that to have stolen it was wrong, and that now the right thing to do – what he ought now to do, what he is now morally obliged to do – is to return it. He may return the wallet for a very different reason. Although he knows that AA is not entitled to command him, NN may nonetheless return the wallet simply because AA has commanded him and he is afraid of what AA will do if he disobeys. In this case, NN ought to do what AA commands but it is not because AA commands it that he ought to do it, and yet it is because AA commands him that he does it. Although he is “morally obliged” to return the wallet he is not “legally obliged” by AA’s command simply because the relation of commander to commanded (ruler to subject) does not exist between AA and NN.

[2] AA is in general entitled to command NN but he commands him to do what NN ought not to do.

 AA is entitled to command NN, that is, the relation of ruler to subject exists between AA and NN. As I have said above, I do not ask here why that relation exists or whether or not it ought to exist. I prescind from those questions and consider only the case where it does exist, and when both AA and NN accept that it does.

In general, AA is entitled to command NN. NN is, therefore, legally obliged to obey AA. The legal character of the obligation is based on the reciprocal entitlement of ruler and subject. To be legally obliged to do what another commands is simply a way of saying that the person commanding is entitled to command the person to whom the command is given. If AA is entitled to command NN but not entitled to command MM, NN is legally obliged to obey AA’s commands, whereas MM is not. That is what the terms “legally obliged” and “legal obligation” mean.

The question raised in [2] is whether or not AA who is in general entitled to command NN is entitled to command him to do what he ought not do. A presupposition of the question is that it would be possible for AA to command NN to do what he ought not do. Another version of that presupposition is to say that what NN ought to do or not do is not defined by what AA may command him to do. Yet another version is that what NN is morally obliged to do is not defined by what he is legally obliged to do. Legal obligation has nothing to do with the moral character of the action commanded. Unless that is presupposed it will evidently be impossible for AA to command NN to do what NN ought not to do because, by hypothesis, NN ought to do whatsoever AA commands.

The matter, already discussed by Plato in Eutyphro and in Protagoras, became acute in the later middle ages in the dispute between Aquininans and Occamites when it was asked if what God commanded was commanded because good or good because commanded by Him. (LJC, pp. 194-5) On both sides of the debate, it was agreed that God was entitled to command whatever He willed. If a divinely commanded act was good only because commanded then what the person commanded ought to do was defined by what was commanded. The good, that which ought to be done, was identified with what was commanded by God, and could not be known otherwise than in the command. If that is translated from divine to human ruler, then what the ruler commands defines what is good. But even some who thought that God commanded an act because it was good were not wholly free of the sense that, even so, what was good could be known only because God’s command had been revealed; certainly, not to steal was commanded because not to steal was good, but was known to be good because God had commanded it to Moses on Sinai. One knew that one was obliged not to steal because God had revealed it in the Decalogue. The rhetoric of the five books of laws, the Torah, is a rhetoric of command: “These are the commandments that the Lord gave to Moses for the people of Israel on Sinai.”[8] Implicit in the Torah is that their Lord’s command obliges the people and is sufficient reason to obey. The Israelites are legally obliged; there is no further question; either there is no other kind of obligation or legal and moral obligation fuse into one. The story of Abraham who was commanded to sacrifice Isaac, his son, provided powerful support for one side of the debate, and an awkward difficulty for the other. The authority of the Lord, their God is absolute; there are no exceptions. The rhetoric of command in the Torah – with the specific statutes removed – is the rhetoric of a pure legal and moral positivism.[9]

God, as all the mediaeval theologians, although for different reasons, agreed, could not command evil. But in the entire history of European reflection – my ignorance confines me to the European tradition – few have suggested that the human ruler could not command evil. Few have unequivocally suggested that there is no difference between good and evil or that what the ruler commands is by definition, and so necessarily, good. St Augustine is thought to have held that a law that commanded evil was not a law, that a command that enjoined the person commanded to do evil was simply not a command. (I am not convinced that Augustine thought so, but it is a question in interpretation that I am incompetent to answer.) Cicero, Aquinas and others held that an unjust law – one that commanded evildoing – was a corruption of law but still a law: AA who is in general entitled to command NN is not entitled to command him to do evil. AA is not so entitled precisely because NN is, irrespective of the command, obliged not to do evil. When AA commands NN to do evil the more original obligation not to do so over-rides the command.

How, when a command conflicts with that original obligation, are we to speak of obligation? I think it is clearest to say that when AA commands NN to do evil, NN is legally obliged because the command is addressed to him by AA who is in general entitled to command him but not morally obliged to obey.  If AA is entitled to command NN, NN is legally obliged to obey – that means simply , that AA and NN are in the relation sovereign and subject. When AA commands NN to perform an act that is either now morally required independently of the command (viz. not to steal) or is now morally neutral independent of the command (viz. drive on the right rather than on the left side of the road) NN is not only legally but morally obliged to perform that act. When the act commanded is morally repugnant, then NN remains legally obliged but either not morally obliged to perform it simply because it is commanded (he may be morally obliged for some other reason as the bank clerk might well be) or morally obliged not to perform it. To say that NN is legally obliged to do X is to say that the injunction to do X is issued by one entitled to issue it and that it applies to him. To say that NN is morally obliged to do X is simply to say that NN is convinced that X is what he ought to do.

[3] AA is in general entitled to command NN and commands him to do what NN, absent the command, ought nonetheless to do.

If no-one in a particular society thought that, absent any command, X ought to be done, or not done, in Y circumstances, then there would be no obligation on anyone to do or not do X in those circumstances, for no-one is obliged to do what he does not think he ought to do or to refrain from what he does not think ought he ought not to do. If, on the other hand, NN is convinced that he ought to do or not do X, he is obliged to do or not do X, whether or not he is commanded by another, or whether or not it is generally accepted in his community that X ought or ought not be done. That is the meaning of “moral obligation” or “the primacy of conscience”.

Whether or not a particular proposition is true is independent of NN’s judgment – in other words, NN can be mistaken and hold that the proposition, P, is true when it is in fact false, or false when it is in fact true. But if NN is convinced that a proposition is true, then, whether or not it is true, he cannot fail to hold that it is true. Judgments about what ought or not be done – moral judgments or judgments within the moral domain – may be true or false (LJC, passim & esp. pp 175-6). Accordingly, when NN judges that he ought to do X he may be mistaken – in other words, that he is convinced of the truth of his judgment does not make the judgment true – but it is, nonetheless, his present judgment about what he ought to do or not do that binds.

Judgments about what ought to be done are of two kinds: judgments about what ought to be done now in these circumstances, and judgments about what ought to be done in kinds of circumstances. Laws, whether customary or legislated, state what ought to be done in kinds of circumstances; the law being, as Aristotle wrote in his discussion of equity “… universal …[and] takes the general case.” (NE, 1137b10 cf. LJC, p.138). For it to be generally accepted in a particular society that X ought to be done or not done in a particular case, it must be communally known and so becomes the law, customary or legislated, written or unwritten, natural or conventional, of the society. If there are actions that ought to be or ought not to be performed whether or not they are required or forbidden in the prevailing law, there seems to be no reason why at least some of them would not be found in that law. For example, the universal or general norm that promises are to be kept in principle obliges each one of us but that is not a reason for it not to be made explicit in a society’s laws. So, if AA commands NN to keep his promises, NN is legally obliged to do what he is already in principle morally obliged to do; on the other hand, if AA simply does not issue that command to NN, then NN remains in principle morally obliged but is not legally obliged by AA. Still, when we consider that the communally accepted moral norms are communally known moral norms and hence form the communal moral law, it will be possible, and almost inevitable in a complex modern society, that a particular person or set of persons will accept additional other laws. When more formal legislation emerges to complement the then prevailing communal law, it will often both include many of the provisions already present in that law, and add further detailed ordinances at least some of which may well be in tension with the prevailing communal law and practice. With the emergence of an increasing formal jural practice and legislation, the term “law” is often used to refer exclusively to that practice and the term “custom” increasingly used to refer to the prior law, as appears in Justinian’s Institutes and Digest (Inst. I.II.9; Dig.I.3.32). In those passages from Justinian the reference to the role of popular consent – Ex non scripto jus venit, quod usus comprobavit. Nam diuturni mores consensus utentium comprobati legum imitantur (Right that usage has settled comes from what is unwritten. For ancient customs approved by those who have used them are like laws.) – is significant and is fundamental to the account of both unwritten law – custom or living law – and legislation in LJC. That law is accepted is one of the pillars upon which the actual authority of law depends. Hobbes was mistaken to think, if in fact he did so think, that there had been an historical original agreement but he was right to suspect that in the longer period no authority can survive too much disagreement.

[4] The fourth case is when AA is in general entitled to command NN and commands him to do what NN, absent the command, is entitled to do or not do.

Many customs and state legislated ordinances require or forbid actions or establish rights that would otherwise be left to the choice of those to whom the set of customs or ordinances apply. These are often referred to as “conventional laws” and, by Aristotle in NE. 1134b19, as “tò ?è nomikón (variously translated as “conventional”, or “legal”), and roughly correspond to Gaius’ iura gentium. There is no suggestion in Aristotle or Gaius that such laws are randomly made or unintelligent; they are solutions established as reasonable answers to problems peculiar to the particular society at that time. It is utterly crucial to remember that the division into natural and conventional is a post-hoc theoretical distinction. Still, by whatever words one chooses to make a distinction between levels of laws, it is obvious that the detailed maritime rules governing the carrying of lights at night which, equally obviously, could have differed somewhat from what has been settled, are at a different level from the underlying rule that collisions are to be avoided.

The underlying rule that collisions are to be avoided – which I think of as a natural law of the sea so obvious to sailors that it is rarely expressly stated – is supported by the “practice of seafarers” and, in the United Kingdom since the Steam Navigation Act of 1846, by the detailed collision regulations including those concerning Lights to be shown by night and Shapes by day. One regulation requires the carrying of a sternlight: a white light showing at night between sunset and sunrise over an arc of 135° astern.[10] Before either the practice of seafarers or the Navigation Acts had introduced a rule, it was not a rule, and so no-one was legally obliged; it is an intelligent but detailed solution to a recognized problem. The purpose of the light is to show vessels whether another vessel is coming towards or going away from them. Perhaps, it would have been equally good to require the light to be carried on the bow, but what would not have served equally well would have been to permit a vessel to carry the light either on the bow or astern. If it be assumed that the 1846 Act is in the position of AA and masters of vessels in UK waters are in the position of NN, then NN is legally obliged to show a white light astern over the required arc at night. A master in such circumstances is morally obliged to do so because he is morally obliged to try to avoid collisions – thus taking the interest’s of others into account rather than endangering their lives and livelihoods – and morally obliged to follow the rules because a communally known and accepted way of doing so is needed and the rules state what that way is (the informational character of the law) and that it is to be followed (the command character of the law). Associated with the command is a sanction for breach of the rule (the coercive character of the law).

But if, as in the regulation about the carrying and position of lights, AA is entitled to command NN to do what, absent the command, NN would be legally entitled to do or not do, there might seem to be no limit to what AA is entitled to command except that AA is not entitled to command what is evil. HTh deals with this problem in the final pages of his paper when he discusses Himma’s criticism of Raz. That there are, and ought to be, other limits and what those limits are or ought to be, is the matter of the liberal tradition. (LJC, esp. Ch.7.5, pp. 183-8 & fn.29 on p.186) HTh in his footnote 30 remarks that “The value and extent of personal autonomy lies at the heart of the differences between competing political theories.” I agree and would add that it lies also at the heart of political practice; the setting of the limits is an argument within politics understood neither as an academic discipline, nor as a task to be left to politicians but as the responsibility of each of us in our different ways. On one end of the spectrum there are those who tend to the view that the law should prescribe all virtues and prohibit all vices, (which in practice cannot but mean to prescribe everything that is that the influential findvi rtuous and to prohibit all that the influential find vicious) and at the other end of the spectrum are those who hold that freedom or liberty ought to be the basic (or, in the technical language familiar from computing, the default) position from which to begin the argument so that the limitation of liberty not its extension is to be argued for. In LJC the focus is on the common good, that is the order in which people can live together in peace, but what that in its detail and in particular circumstances is must be the topic of perennial argument, or, as Isaiah Berlin wrote, the topic of perennial haggling. I should add only that the common good demands that argument be permitted, and that it occur.[11]

I have set down here some reflection occasioned by my reading of HTh’s paper. I am very grateful to him for his presentation in Reykjavík and for the paper published here.

Oran Doyle: The Significance of the Living Law.

Oran Doyle [O] in his reading of LJC asks several related and very important questions. I shall respond only to two, and leave others, no less important, to another day. The two questions are these: first, are the provisions of the communal or living law – O points out correctly that several terms are used interchangeably: “communal moral law”, “custom”, “moral tradition” – “merely obligations from the perspective of the community or true obligations, ie moral obligations that do truly apply to us?” and, secondly, does the set of customs, the prevailing living communal law, of a society have secondary rules in Hart’s sense of that term?

                                                                     I

First, then, are the rules of the living law, the communal moral law, obligations only from the perspective of the community or obligations that do truly apply to us. O stresses that it is “At this point in the book “ that the answer is unclear; I want to address the question itself because of its great importance. Later in the book it does I think become clear – as O accepts – that the provisions of a society’s living law will not be in all respects good and, therefore, do not impose true moral obligations: “This communal law is not necessarily in all respects good, for in every society there are the relatively more and less powerful and the more powerful can, and do, to a greater or lesser extent, impose their biased and selfish interests upon the less powerful. Societies are at all times, and inevitably dialectical.” (LJC, Conclusion, p. 260) My answer now, and the answer we gave in the book is, therefore, unequivocal: the living law imposes legal obligations on the members of the community but not all those obligations are in O’s sense true moral obligations, and some may be legal obligations that one may be morally obliged not to respect. It is, however, imperative to recognize that obligations that at any time and in any society that are taken to be true cannot but be obligations that are thought to be true, just as factual propositions that are taken to be true are propositions that are thought on the best available evidence to be true. Infallibility is not granted to humans and “ ‘Nothing is more unfair,’ as an English historian has well said, ‘than to judge the men of the past by the ideas of the present.’ “[12] That there are true and false judgments in a recurrent theme in LJC; that space was thought to be absolute in Newtonian physics was an historically understandable, almost inevitable, mistake but a mistake nonetheless; that slavery was once thought to be good, did not make it good.

A presupposition of O’s question is that there are true moral obligations. I, too, make that presupposition and it is one that runs through the book, but, as well as being a presupposition, it is a proposition in support of which some arguments are adduced. Of these the most fundamental is that for humans to live is a value; that they cannot live otherwise than socially,;that they cannot live socially otherwise than in a jural world in which the rules governing how to live in that world are known to them, and, if followed, allow them, more or less well, to live and realize their individual values in communal peace and harmony. Human societies are dialectical; some people – and all at least sometimes – will choose to realize individual values that cannot be realized without overriding the interests of others – the thief who chooses to steal another’s money realizes his individual value to have the money but does so only by overriding the owner’s value to keep what belongs to him. To say that one value is better than another, that, for instance, the owner’s value is better than, and ought to prevail over, the thief’s and that the thief ought to respect it is to say in O’s words, if I understand them correctly, that the law which forbids theft expresses a true moral value and requires behaviour that is a true moral obligation. One who would claim that there are in principle no true moral obligations is committed to the assertion that in principle no value is better or more worthwhile than any other. Because individuals and groups of individuals are biased they become morally myopic and, at some level of bad faith, see their own interests as paramount and to be realized irrespective of others; they will tend, if they are powerful enough to do so, to introduce customs and laws that favour the realization of those interests. They may even manage to convince themselves, at least for a time, and try to convince their subjects that they are “morally right”. The laws that they introduce and defend are imposed upon those that the laws oppress, and a rhetoric is devised to justify the laws. [13] Those to whom the laws apply are legally bound by those laws but not morally bound by them and whether or not to obey them is a different question from the question as to whether or not to obey laws that bind both legally and morally as I argued in the response to HTh’s paper.

For true values actually to exist in a society they must be known, just as for true factual propositions actually to exist in a society they must be known. For true values effectively to exist in communal life they must not only be known but be, sufficiently often, chosen. Thus, if in a society in which no-one knows that it is wrong to steal the true value that theft is wrong does not actually exist in that society; if in a society people know that it is wrong to steal but nonetheless steal whenever it suits them to do so, the true value that theft is wrong does not there effectively exist.

If, on the other hand, there are in principle no true values, no true moral obligations, or if, in one’s analysis, one prescinds from any discussion of true value, then the question that remains concerning a purported law or set of laws is whether or not it is a law or set of laws and, accordingly, legally binding. The question as to whether or not it is morally binding simply does not arise. However, even if there are neither true not false values, a law necessarily includes a value for to enact that X is to be done is to be done is to say that it is valuable to do X. The extermination of Jews was a Nazi value. If there are no true or false values, then that it was a value is all that is to be said about it.

                                         II

In about half an hour the untidy girl, not yet dressed for her evening labours, brought him his chop and potatoes, and Mr Harding begged for a pint of sherry. He was impressed with an idea, which was generally present a few years since, and is not yet generally removed from the minds of men, that to order a dinner at any kind of inn, without also ordering a pint of wine for the benefit of the landlord was a kind of fraud; not punishable, indeed, by law, but not the less abominable on that account.

Anthony Trollope, The Warden, (1855) Ch. XVI.partially

Whatever one’s position on the matter of true moral value, the question as to whether what purports to be a law is in fact a law properly arises. That I take to be the matter of Hart’s distinction between primary and secondary rules. I shall try to develop an answer in the light of what seems to me to be either explicit or implict in LJC.

The clearest discussion of the matter is in footnote 43 on page 257: “A bank clerk illegitimately commanded under threat of serious injury is not morally obliged, that is, not obligted , by the illegitimate command but he may well be morally obligated to hand over the money because he judges that the value of his staying alive or unharmed outweighs the value of giving the money. The crucial point is that he is not obligated by the command. Similarly, one living under a regime de facto in power but illegitimate may for his own reasons consider himself to be obligated to act in accord with, but not obligated by, its illegitimate commands.”

Whenever AA tells NN to do something, that is, whenever AA commands NN, the question as to whether or not AA is entitled to do so arises. And for the command to be recognized by NN as authoritative – that is, as a command properly addressed to NN and issued by one who is recognized by him as entitled to issue it – NN must recognize AA as entitled to command him. The difference, as Lichtenberg’s aphorism has it, between a prince and a lunatic is that other people recognize the prince. (There is an ambiguity there that I hope to go some way towards resolving but what seems clear is that NN must be able to distinguish between a command from an entitled or authoritative source and one from a non-entitled source. The crucial feature of the bank robber is not that he can support his command by threat of force but that, whether he can or not, he is not entitled to command the clerk. If NN does not accept that AA is in principle entitled to command him, then he thinks of AA as the bank clerk thinks of the robber.)

As children grow up they are told to do things by adults who, by giving their instructions, present themselves as entitled to do so. As they grow older the children may begin to distinguish between those adults (for example, their parents), whom they recognize as entitled to command them, and those whom they do not. My grandson when he was about four years of age once said to me when I had instructed him to do something: “You’re not the boss of me. My mum is the boss of me.” I took his response as a perfect example of a rule of recognition. The rule that his mother was entitled to give him instructions was a secondary rule in the light of which her specific instructions were primary rules. Between him and his mother a legal system had been established in which she was lawgiver and he the person to whom the laws were properly addressed. Within that small familial legal system as he understood it, there were no other legitimate lawgivers; within that familial system others, as Aquinas wrote in answer to the question as to whether or not anyone whomsoever could make law, were advisors whose advice did not have the force that law properly should have (non habet vim coactivam; quam debet habere lex, …Sum.Theol. I.II.90.3 ad 2). [14]

Hart sometimes contrasts the secondary rules of recognition, change and adjudication with the primary rules of obligation, which may give the impression that the secondary rules are not rules of obligation, which, in fact, they are. When I am told that parliament is entitled to make provisions that I am legally obliged to accept, what I am told, in effect, is that I am legally obliged to accept the terms of whatever provisions are made by that body and that apply to me. Similarly, if I am told that the law courts are entitled to determine what is just in case of dispute, I am in effect told that I must, in certain circumstances, submit to that institution and accept its determinations. Both primary and secondary rules of a given society may be communicated to someone who is merely enquiring about the society, as might an anthropologist, and to whom neither set of rules applies. If I correctly understand Hart, it seems that with his distinction he has shed considerable light on what a significant part of jurisprudence had for centuries been about. To state that custom is like law, or that the decision of the Emperor has the force of law, is to state a secondary rule, but, before the secondary rule that custom is like law is formally articulated, it is known in intelligent practice that custom is law.

Understood in that way, it would be impossible for there to be a law without secondary rules.

Without secondary rules the bank clerk would have been unable to distinguish between the command of the robber and any other command. If it is true that there must be secondary rules, it is true that they must be more or less explicitly known. To the extent that a command binds because it is a command, it must be that the person bound knows and accepts that the commander is entitled to command and that this particular injunction comes from the source, and for people in any society to know and accept that they are bound whether by the laws of Hammurabi, or the Torah, or Solon …they must know not only the detailed rules of, say, Hammurabi’s code, but also know and accept that they are bound by them. The many detailed statutes and ordinances in Leviticus are primary rules; they are recurrently prefaced by the refrain: “The Lord spoke to Moses saying: speak to the congregation of the people of Israel and say to them: (then follows a statute or set of statutes)” and conclude with the refrain “I am the Lord, your God.” (Lev. 19.1-2 & 4 but found passim). The refrains are secondary rules stating why the statutes and ordinances bind. One of the functions of the secondary rules is to distinguish between commands that are simply sentences in the imperative mood addressed by one person to another and grammatically similar sentences in the category established by the secondary rules.

All societies are, and must be, governed by primary rules that have both an informative and a compelling function. The rule informs in as much as it tells what in a kind of situation is to be done, and compels in as much as the commander or those whose task it is to ensure that the rule is observed will compel those to whom it is addressed to act in that way in that kind of situation or mete out punishment if a person is found guilty of breach. All societies have secondary rules that tell both how the secondary rules are to be distinguished from commands that are no more than sentences in the imperative mood or commands given by parents to children, and why it is that the primary rules bind.

O writes that in LJC it is held that “…the living law is just at much at work” in what Hart thinks of as “[a system] that does not count as law at all”. O is correct. The question arises as to whether the difference between the position in LJC and the position in Hart’s The Concept of Law is more than verbal. O writes that Hart “imagines a society without a legislature, courts or officials of any kind” and “refers (without citation) to studies of primitive communities which depict in detail ‘the life of a society where the only means of social control is that general attitude of the group towards its own standards of behaviour in terms of which we have characterized rules of obligation.’ (CL.91)

I do not think that such communities exist but what is true is that in all communities there are expected standards of behaviour that are controlled to a large extent by “the general attitude of the group” that is, by the group that as a matter of social fact exerts some influence on the person tempted to act otherwise than in the approved manner. The rules of polite behaviour are enforced in that way. The example of the teenager who would in other circumstances prefer to pay his bus fare but decides not to in order to avoid his companions’ ‘scorn and derision’ is not quite the same. (LJC, p. 222) In that story, the teenager had a private preference for paying the bus fare and would in other circumstances have done so but knows that, in the group to which he wants to belong, to do so is disapproved on pain of a sanction that he would avoid. If he decides not to pay the fare, he is acting in accord with the prevailing law of the group, but reluctantly from fear of punishment which might be not only scorn but expulsion from the group – the ancient punishment of exile. What Aquinas wrote applies to him: “just as some are not interiorly disposed to do spontaneously and of their own accord what the law commands, they must be exteriorly constrained to bring about the just result that the law intends. That is what happens when the fear of punishment makes them act in accord with the law, in a servile manner not freely. “ (Sum.Con.Gent. III.128.7) It is likely that many readers will be inclined to say that the teenager would have been right to pay, and was wrong not to pay, the fare. The example is chosen in the hope of that response; the story is intended to show that a purely structural examination of law, sanction, and action is possible. The teenager is a member of a community which has, as do all communities, laws that express the values approved in the community – were the values not expressed they would not be known. A law that commands an action (Bus fares are not to be paid.) expresses a communally held value (It is good that bus fares not be paid.). Obedience to the law brings about that value (The bus fare is not paid.). Within the teenager’s community, that law is a primary rule. But he must know that it is a communal rule; he must be able to distinguish it from other expressions in the imperative mood that are not rules of his community and may, indeed, command precisely the opposite action (Bus fares are to be paid.) The rules that show him how to recognize the rules that apply to him as a member of the community are secondary rules; they may be more or less formally expressed but they must exist, they must be known, and to be known, they must be promulgated. Because over time, within the “same” community – there is no-one now living in Iceland who lived there 170 years ago and yet we talk of the Iceland community changing and not simply of one set of people being replaced by another entirely different set of people – and even when at least some members of the community at the later time were members at an earlier time, communal values change, the laws that express them change and so there is in every community some way, more or less formal, of bringing change about.[15] Disputes arise between people within the community. Someone accuses the teenager of having paid the fare. He claims that did not pay and is not guilty of the offense. In response to this problem there will at once arise a way of trying to ascertain the truth, for if he did not pay his fare it is unjust to sneer at him or to expel for having done so. “And therefore it is of the Law of Nature, That they that are at controversie, submit their Right to the judgement of an Arbitrator.” (Hobbes, Leviathan, 15, 213 [78]; LJC, 145, & fn. 27 ). As are Hobbes’ other “natural laws”, that one is simply the intelligent solution to a problem that is likely to arise. “for there may …arise questions concerning a man’s action; First, whether it were done or not done; Secondly, (if done) whether against the Law, or not against the Law.” (ibid., loc.cit.) Finally, there is the cardinal rule: The values of the community are to be realized and are expressed in The Law and the specific laws that intend their realization are to be obeyed.

The cardinal rule is both ambiguous and contestable: ambiguous because what in any specific case the community is, or can be, uncertain; contestable because there is always at least the possibility, and commonly the reality, of tension between some of the values expressed in the laws and some other values in the community. (Commonly flouted regulations are examples.) And so, the cardinal rule, Kelsen’s Grundnorm, becomes rather this: the values expressed in The Law is to be realized and the specific laws that intend their realization are to be obeyed. Values are always expressed by people, and so two questions arise; first, as to their goodness or badness; secondly, as to the legitimacy of the legislator. Those are not Hart’s question and I shall leave them aside; they are discussed in the eleventh chapter of LJC.

Hart discovered the important distinction between primary rules, that authoritatively guide the actions of those to whom they are addressed, and secondary rules that enable people to distinguish between those primary rules and other commands that may be addressed to them, that inform of them how disputes are to be settled, of the sanctions that may be imposed in case they break the rules, how rules are changed and who is entitled to change them. O suggests that Hart suppose that the existence of secondary rules in a particular social order distinguishes that order, from one from one that lacks secondary rules. What I have suggested here is that both kinds of rule are found in every society, for in every society it will be possible for AA to give a command to NN without being entitled to do so and correspondingly possible for both to know that.

 Hart distinguishes between legal systems on the criterion of the presence or absence of secondary rules; I incline to distinguish them according to the comparative complexity, explicitness and clarity of the prevailing secondary rules, and according to the importance and character of the distinction between relatively insignificant and significant rules. Everyday rules of polite behaviour exist in every society and breach of them incurs often only an everyday sanction such as disapproval but murder and theft, for example, are never dealt with only in that way. It can and does happen that actions that were once dealt with in a formal way no longer are but fall into the category of actions dealt with by more everyday sanctions; few Europeans now remember a time when adultery was a crime in most European jurisdictions, and many find it most odd that it in some non-European jurisdictions it remains one.[16]

A secondary rule that specifies who, or what institution, is entitled to make primary rules, is critical. From the secondary rule that the decision of the Emperor has the force of law follows that a particular decree of the Emperor legally binds those who are in principle legally bound by Roman law. But secondary rules need not be so formally expressed and, indeed, the formal expression of the secondary rule that the Emperor’s enactment was law followed already established and accepted practice. Similarly, the secondary rules that informs the members of a society that primary rules of a particular living law bind them is present in intelligent practice before it is formally expressed. A particular custom is customary law because the members of the community accept it as such even if they have only a hazy idea or none at all as to why some customs oblige and others, more transient, have some social influence but are perhaps merely fashion. Before Hart’s discovery the distinction and its importance was theoretically unnoticed.

So far, so good. As far as the analysis has gone the effort has been to distinguish law from not-law, and there has been no need to distinguish between good and bad law or to distinguish between laws that bind independently of the command and laws that bind only because properly commanded. Nor has there been any need to raise the question as to why someone or some institution who claims to be the legislator is entitled to be. Hart’s analysis is, as he said, sociological, a description of jural fact.

There are two questions: first, is AA the legitimate ruler? Secondly, does AA remain the legitimate ruler if he becomes a tyrant and enacts evil laws? In LJC (257) it is suggested that “The entitlement of legislators to legislate and the entitlement of judges to adjudicate are for the most part accepted, and in that acceptance they are established. That is ‘the social contract’. Legitimacy in the end rests on its being accepted.” In many – but not all – modern states, the legislator is parliament to which actual legislators are elected and adjudication of disputes whether civil or criminal is undertaken by a corps of judges, either elected or appointed, in a system of hierarchically ordered courts. That system is in fact either accepted or acquiesced in, by the vast majority of citizens, and it is on that acceptance or acquiescence that the legitimacy of the parliament and judiciary rests. When acceptance and acquiescence sufficiently diminish, the state tends towards collapse. There are and have been other systems of government and they too may be legitimate: a president for life to be succeeded by the nominated heir is not necessarily illegitimate. In the period of kingship in Europe the reigning king or queen was accepted as the legitimate ruler and there were rules governing the succession, sometimes more or less quietly accepted by those who had much interest in, and were affected by, the matter although many, often the majority, as Machiavelli knew, had often little interest in the storms on Olympus provided that they were left to carry on their lives in relative security. Nowadays the influence of rulers, of whatever kind, on the lives of all members of the society is much greater and correspondingly greater is the interest of the ruled.

Successful invaders, from Europe, North Africa and Asia sought, often very dubious, legitimating reasons that they hoped would sometimes genuinely, more often conveniently, convince those upon whom, in the longer term, the success of their invasion depended. William, Prince of Orange, could not have defeated James to become ruler of the three kingdoms of England, Scotland and Ireland had not he been supported by a sufficiently powerful alliance of domestic nobles. In the end, the right of conquest, or the attainment of power, more or less admittedly, commonly and everywhere, underlay the claim to legitimacy. Castile and Aragon became the legitimate rulers of Andalus when, having defeated the equally legitimate Visigoth rulers who preceded them, they found sufficiently acceptance. The same is true of the Celtic, Roman, Anglo-Saxon, Danish and Norman invasions of England and Wales, the Norse invasions of Western France and the later Norman invasion of Southern Italy and Sicily, the Ottoman Empire, the Manchu invasion of China … But, as civilizations became more advanced, rarely, and more rarely still as different ideas about legitimacy developed, was success given as the sole legitimating reason. Most present states have their origins in force and fraud.

In the tradition of practical politics the question of legitimacy in Europe increasingly concentrated on the legitimacy of the present incumbent often against the claims of a pretender supported by the incumbent’s opponents. Usually the pretender and supporters, who, to succeed, had to rely on force, provided reasons to show that the pretender, rather than the incumbent was the legitimate ruler. Might may well make right but tends to be accompanied by more or less good, more or less spurious, legitimating reasons; ragion di stato. Machiavelli and Giorgione are the great theorists – not necessarily the defenders – of this tradition

The practical dispute was between claimants: which one was the legitimate ruler? Theoretical discussion, as in Plato’s Statesman, was largely about what type of person the ruler ought to be, what knowledge and virtues the ruler ought to have. That there ought to be a ruler was for the most part taken for granted. Aquinas, in a set of questions that one might expect to have little to do with jurisprudence, asks in the first part of the Sum.Theol. (I.96.4) whether or not in the state of innocence – the state in which humans would have lived had not their first ancestors been expelled from the garden of Eden – there would have been one who ruled over others.[17] His answer is the in Eden humans would have been social animals; that social life is impossible unless one person who intends the common good presides, for many intend many things but one intends one thing. In that place he refers to Aristotle who “in the Politics says that when many are ordered to a single goal, one is always found who is principal and governs.” Aquinas’ background context is his own society and so he has in mind a single person as ruler, as, indeed, has Plato in Statesman whereas Aristotle writes of different types of rule (Pol. I.I.1252a10) but all three think of some type of governance as necessary for the wellbeing of the community “for every community is constituted with a view to some good” (Pol.I.I.1252a1). In LJC the good is the communal order in which everyone, each pursuing their own ends can live in peace and harmony and of which the sustaining virtue is justice. It is not a particular end to be achieved as the end to be achieved by group of walkers coming down a mountain in a fog might be to reach home safely or, to take Aquinas’ own example, as the end to be achieved by an army is victory. Those examples do not illustrate the common good of a society; a society is not an organisation with that kind of goal in view, although in extreme cases and temporarily, as when a city is attacked, the defeat of the enemy can become to an extent a goal of that kind.  As I write, in August 2011, there is civil war in Libya; the “common good” of Colonel Gadhaffi’s state – that is, the good shared by its supporters – is its survival; the “common good” of its opponents – the good shared by the rebels – is its overthrow. But the common good of whatever society survives the war is an order within which each person, while caring for the good of others, freely pursues his own goals. A society is an order that ideally is the just interaction between its members; its common good is the order in which that interaction can take place. To have confused and to continue to confuse, both theoretically and practically, these two very different senses of the single term, remains the bugbear of jurisprudence and political philosophy generally.

That order is in part given, and in part continually chosen. It is given in as much as we are animals and live in a given order as chimpanzees, gorillas and other animals do. That order is what Ulpian in his immensely illuminating and sadly neglected insight called the ius naturale. Human social orders are continually chosen by people living in a way that allows others to live; that is how I understand Hjördís’ insistence on the importance of equality. Human social orders will be in part common and in part peculiar to the particular order; the attempt to work out and communicate what is common resembles Gaius’ ius gentium; what is peculiar to a particular order is his ius civile.  Because, and to the extent that, the human order is subject to deliberation and choice, humans ask questions, share answers and make both individual and communal decisions and so continually choose the order within which they live. But they do so in two distinct ways. First, each single person and each smaller group, chooses how to live in the order in which they finds themselves. To the extent that it is an object of choice the human social order is a moral order. Secondly, each knows that order only by being educated into it; we learn our order as we learn our language. We learn the rules of the order before we learn that some are thought “conventional” and some “natural”. The Icelandic child does not learn that “takk fyrir” means “thanks” but how and when to use “takk fyrir” and only later that others make a different sound or word, and say “thanks”,“go raibh maith agat” or “grazie” in the same circumstances. Every language is rule governed and speakers follow those rules but they do not theoretically know them; somewhat similarly every human society is rule governed and its members follow or fail to follow them without necessarily knowing them abstractly and theoretically. A language and a society are orders that allow humans to become fully human.

It is evident that in a non-literate society none of the rules governing the prevailing order are written. It is equally evident that the specifically human rules – i.e. rules at the level of deliberation and choice and not those ‘natural practices’ of which Ulpian wrote – must be communicated whether or not they are properly of the ius gentium or of the ius civile. Certainly a child learns how to behave in part through language: “Give Etty back her toy; it is hers and you may not take it home “ but usually not by being told “Thou shalt not steal”. Thus, a child learns what property is, what it means to own something, how to use such words as “mine”, “yours”, ‘hers”, “his”, “ours”, “theirs”, and that it is wrong to steal. The child learns, sometimes in words, sometimes as a result of a parent’s response, that breach of the rule not to steal, if discovered, brings about disapproval and perhaps some further punishment.

The injuction against theft is only one of the many primary rules that the child learns. The secondary rule is the authoritative context within which the child learns them. That authoritative context is the relation between child and parents or other significant adults and which, in part, is the human transformation of the similar relation between parent and infant chimpanzee or gorilla. As the child grows that authoritative context is further transformed as the child learns how to think of the relation between him and his parents. He learns to feel about himself as one bound to obey parents and some other adults. He learns that and other primary rules as authoritative commands and gradually takes himself to be subject and the adult to be sovereign. As the child grows up he discovers in his practical intelligent everyday living that adults, too, are subject to a law that is sovereign. Only later, if ever, does he learn, and think explicitly think of, the rule as requiring reasonable behaviour. That the law binds, what the law enjoins, how it is known, how breaches are dealt with are secondary rules that are necessarily present and part of the law of every human society.

There is in some societies an explicitly identified lawgiver – not one who is thought only to tell the laws; a lawspeaker – but one from whom the laws are imagined to emanate. That image of the lawgiver dominates the European jurisprudential imagination from at least Plato’s Statesman. In societies where there is no clearly identifiable lawgiver from whom the laws emanate, and in which the prevailing laws are simply unquestionably present and binding, the laws, particularly those thought to be most imortant, are often imagined as mysteriously sovereign and often from a mysterious and superhuman source, as Antigone says in Sophocles: “For neither to-day nor yesterday, but from all eternity, these statutes live and no man knoweth whence they came.” (Antigone I.XIII.2) In Hammurabi and in the Torah, the laws emanate from God. Hávamál, although a compilation of wise sayings rather than laws, is from the high Norse god, Odin. In aboriginal Australia “the law” is from the ancestor human/animals in the original time when animals and humans were one, as they originally had been before the present fractured time; to keep the law is to bring to the present the sustaining power of the origin.

The idea of a legislator and the practice of legislation was already developed when Plato wrote. The tension in Antigone is between the laws that live “from all eternity …and no man knoweth whence they came” and the laws of the Creon, the legitimate lawgiver.  In Leviticus the tension is between the laws given by Yahweh to the people of Israel through Moses – who in the Torah is a lawspeaker only – and the abominable practices of their enemies: “Defile not ye yourselves in any of these things: for in all these the nations are defiled which I cast out before you. … Ye shall therefore keep my statutes and my judgements. “ (Lev. 18. 24 & 26) The tensions are different but in both the idea of an authoritative lawgiver is present.

Plato in Statesman takes the presence of an identifiable lawgiver or legislator for granted but raises explicitly the question of the truth of the laws. Laws expressed as commands are neither true nor false. “A dead man shall not be buried or burned within the city” (Twelve Tables, X,1), understood as an imperative, is neither true nor false but underlying it is the unexpressed proposition: “It is good that a dead man be not buried or burned within the city”. That proposition is either true or false. One possibility is that its truth or falsity cannot be known or can be believed only in authoritative revelation. Plato thought that underlying commands were true or false propositions that could in principle, but with difficulty, be discovered to be true or false. If that is accepted, a new explicit criterion of legitimacy arises: a law based on a true proposition is good; one based on a false proposition is bad. The case of a law that commands what is, absent the command, more or less indifferent – a ‘conventional law’ in one of the senses of the adjective – is correctly understood differently; a conventional law in that sense is one that is a law only because it is enacted. (Aristotle, NE,1134b,18 & Rhet. 1373b, 2ff.)

It is important to notice that a true proposition upon which an expressed law rests is not yet a law for the assertion that “P is true” has this difficulty: if I assert that Archimedes’ law of the lever is true, I do not mean that it became true when I asserted it. But that is ambiguous. Was it true before anyone knew that it was? I think the clearest solution to what may seem to be an aporia is this: before anyone knew that Archimedes’ law was true, it was neither true nor false simply because the law expressed in a mathematical proposition did not yet exist; but it is true that the world was such that it was governed by the law that Archimedes later discovered. Levers were widespread and in common use before their principle or law was discovered.

A “conventional” law, as Aristotle used the term in both the Rhetoric and the Nicomachean Ethics, is one that rests upon a proposition that it would be good to enact that X be done or that Y be done and to do both together would be unwise or, in the limit, impossible. What Aristotle, in those places, calls a “natural” law is one that rests upon the proposition that X is the nature or character of the case, as that in most circumstances contracts are to be honoured.

A good law or set of laws, whether communal or legislated, describes and establishes the good communal order. The presence of the legislator, whether supernatural or human, and the corresponding presence of the person ruled, pervades the European jurisprudential imagination as it pervaded its Middle Eastern influences. So, in Aquinas’ in the third article of his question, “Of the Essence of Law” (ST.Ia.IIae.90.3) thinks of legislation and the issuing of commands given by one entitled to command and backed by force – the vis coactiva; and Hobbes defines law as “…Command …of him, whose Command is addressed to one formerly obliged to obey him. And as for Civill Law, it addeth only the name of the person Commanding, which is Persona Civitas, the Person of the Commonwealth.” (Leviathan, XXVI, 312 [137]) Bentham and Austin retain that image although they tend to omit the idea of the legislator’s entitlement and so, as HTh remarks, “were unable to explain the difference between the law and the orders of a gunman…”. Part of Hart’s task is precisely to explain that difference and so to recover and develop what was at best and inchoate and ill worked out aspect of the tradition.

That image and idea of sovereign and subject is not absent from LJC but concentration on the living law and on the similarity between learning our language and our morals brings another image into sharper focus. Humans live in a physical, chemical, biological, zoological and jural world. To conclude this discussion of the authority of law I want to leave aside the question of the particular legislator’s authority to concentrate on the authority of the jural world.

When we learn our mother tongue we learn a rule governed communication system that allows us speak to one another, to understand ourselves and the non-human world, to become humanly responsible for ourselves, and to develop into the adults that, at the end of our lives, we eventually become. The rules of our language we take for granted. The rules govern but by what authority? In English, for example, the interrogative “Were you here yesterday? and the indicative “You were here yesterday” are formed by inverting pronoun and verb but the indicative “I saw the boat yesterday” and interrogative “Did you see the boat yesterday” are formed the by the addition of the interrogative form of the past tense of the verb ”to do” and a version of the infinitive of the verb “to see”. Only with great difficulty can the historical linguist trace the rise of that locution; the child who learns it is uninterested in that history and is content to know that that is what is done, for the child wants to learn how to speak. The proximate teaching authorities are the parents and other speakers, the remote authority is the language itself. Similarly, the jural world is learnt from those who already live within it; the proximate authorities are those who teach it, the remote authority is the jural world itself. The child, whose mother tongue is Icelandic or Italian and who later learns other languages discovers that the rules of other languages differ from those of his mother tongue while still remaining languages. Similarly, the child may learn in everyday experience, that human jural worlds differ from one another while still remaining jural worlds, Languages differ in many ways but there are, and must be, fundamental rules. No language can fail to distinguish between questions and answers, between affirmative and negative assertions …; similarly, as was argued throughout LJC, no human jural order can survive the lack of some fundamental rules “…dictating Peace, for a means of the conservation of men in multitudes…” (Leviathan, XV,214 [78]). A language allows those who speak it to communicate humanly with one another; a jural order allows those who live within it to do so in peace. The cardinal differences between a language and a jural order, are that no-one in a linguistic community wants to be unable to communicate (the bank robber demanding money wants the clerk to understand the command) whereas in a jural order some are uninterested in whether others live well or badly (the thief or embezzler is uninterested in the plight of the victim) and will either refuse to act in accord with its rules or, if they can, will try tyrannically to impose rules that favour themselves to others’ detriment. When the dominant image of law is legislation enacted by the sovereign to bind the subject, inevitably the question of the sovereign’s authority and so the authority of law itself arises. If that image is replaced by the image of a jural order which, as expressed in rules, describes the order in which people actually live, then the focus of the question of the authority of law changes. When a parent tells the child who asks why that is how to say something (“I have made a cake” not “I have maked a cake”) that that is how we speak, or when a child asks why a toy is to be given back to its owner or why it is wrong to suck soup directly from the plate answers “Because it is his toy and that is what we do” or “that is how we eat” the parent is saying something quite profound. A language is authoritative because people speak it; a jural order is authoritative because people live within it.

As societies increase in size and complexity, as their jural orders becomes increasingly complicated, as legislation becomes increasingly formal and a distinction between actions within and without an adjudicative structure with attendant penalties becomes more institutionalized, as enacted laws become the dominant image of law, as the number of laws enacted increases almost exponentially to rule ordinary living in increasing detail, as laws are thought of almost exclusively as expressions of the commands of sovereign to subject, the question of legitimacy tends to be restricted to a question of the sovereign’s entitlement to issue commands to subjects bound to obey. Law begins to be felt and imagined by those who live within the jural order that it partially describes more as an external imposition than as the expression of an order outside which humans cannot live. Still, the idea that the law expresses or should express “ourselves” remains and becomes critical when a practice accepted and even required in one group offends the ideals of another, as has happened recently in France in the dispute over the wearing of the Muslim veil, or when a liberty is demanded by one section of the community and rejected by another as now in Poland concerning procured abortion or when an action is legally permitted that previously was not as in the recent Maltese decision to allow divorce. Below statute are communal attitudes that delay or hasten change whether that change is development or decline. In LJC the “living law” is, as O rightly says, is largely conterminous with “the moral tradition”. That can mislead in two ways. First, the impression can be given that the moral tradition is static, which it is not. Very many changes in state law over the past two centuries in many countries have been successfully urged by great changes in the moral tradition. Secondly, and this I think is insufficiently clear in LJC, in large and heterogeneous states there is no single moral tradition and so changes in state law have been brought about not by a homogeneous living law or moral tradition but by the one that is for the moment dominant.


[1] If one must choose between what one holds to be equal, and so indistinguishable, alternatives one must resort to an aleatoric method like tossing a coin or drawing a straw.

[2] H quotes (see at her fn 13) Christensen: “…there can be no natural differences between Greek and Barbarian, man and woman, noble and commoner, free man and slave.” In two cases the differences are institutional (noble and commoner, free man and slave) in one (Greek and Barbarian) the differences are in part cultural and historical and in part natural – the dark brown people of southern India naturally differ from the lighter brown people of the north in that one group is a darker colour than the other; in one (man and woman) the differences are natural, as, in some accounts, the difference between free-man and slave was wrongly thought to be.  The problem, not solved by denying them, is how to deal with the differences between man and woman. What is meant by claims that there are no natural differences between the letters A and R is that the differences between them are not differences as between letters and not-letters.  A and R differ from each other but are equally letters within the Roman alphabet. Indian, African Plains and African Forest elephants naturally differ but are equally elephants.

[3]   Cf. Aristotle, NE 1131a10: “ …the just is the equal as all men suppose it to be, even apart from argument.” where he discusses some difficulties surrounding the interpretation of that aphorism. He does so at greater length in Pol. 1282b14 – 1283b 14 where he asks if the best player or the best looking or the tallest or the wealthiest is to be given the best flute;

[4] Perelman, Chaim, “Le probleme des lacunes en droit Essai de synthese” in Droit, Morale et Philosophe, LGDF, Paris 1976, p. 129 – 131.

[5] Strictly speaking ,  I.III.2 in the Institutes contrasts the ius gentium with nature rather than with the ius naturaleServitus autem est constitutio juris gentium, qua quis domino alieno contra naturam subicitur.  (“Slavery is an institution of the law of nations by which one m an is made the property of another, contrary to nature.”)  However, in I.II.2 it is said that “Wars arose and in their train followed captivity and then slavery which is contrary to the law of nature; for by that law everyone is originally born free.” [bella etenim orta sunt et captivitates secutæ et seervitutes, quæ sunt juri  naturali contrariæ (jure enim naturali ab initio omnes homines liberi nascebantur)]  But, to know what is in accord with and what is contrary to nature is to know the ius naturale.

[6] In the NE, VIII, 1161b5, Aristotle wrote that a master cannot be the friend of a slave qua slave but qua man he can. Cf. Pol.I.1255b,10-15.

[7] In the NE, VIII, 1161b5, Aristotle wrote that a master cannot be the friend of a slave qua slave but qua man he can. Cf. Pol.I.1255b,10-15.

[8] It is also a rhetoric of covenant but I leave that aspect of the Torah aside.

[9] See Ralph Weber/Garrett Barden: “Rhetorics of Authority: Leviticus and the Analects Compared”, Asiatische Studien/ Etudes Asiatiques, LXVI.1.2010, Peter Lang, Bern, 173-240

[10] cf. Grime, Robert: Shipping Law, Sweet & Maxwell, London, 1978, p.126

[11] Articles 18 and 19 of the Universal Declaration (1948) and the Déclaration (1789) are related to this demand.

[12] Tuchman, Barbara W.: The March of Folly, Abacus, London, 1985, (orig. 1984) ch.1, 4.

[13] Cf. Garrett Barden, “Rhetorics of Legitimacy”, in eds. Dreier, Faralli & Nersessiants, Law and Politics between Nature and History, CLUEB, Bologna, 1998, 47 – 55.

[14] Aquinas in that place makes clear that when he writes of the legislator he has in mind one who is entitled to make law for the entire society.

[15] The problem of the “same” is not merely one of usage. For example, a constitution established in a state by popular vote in 1900 is, unless amended, commonly held to govern the same state in 2011 when very few if any of the original electors are still living.  That one set of people were held to bind another set was Hume’s and Adam Smith’s clear and fundamental objection to  any kind of original contract. See G.N.Casey, ‘Constitutions of No Authority’ (2010) 14 The Independent Review 325.

[16] As far as I know there remain no European jurisdictions in which adultery is a criminal offence but there are societies in which it is treated as such in a kind of parallel non-state system.

[17] I am indebted to Jean Porter’s valuable Ministers of the Law, Eerdmans, Grand Rapids, 2010 for this reference. Modern readers must remember that Aquinas wrote of the prelapsarian state described in Genesis 2.4-3.24 before “the Lord, God sent him forth from the garden of Eden, to till the ground from which he was taken. He drove out the man; and at the east of the garden of Eden he placed the cherubim, and a sword flaming and turning to guard the way to the tree of life.” (3.23&24) as of an historical event.   To us who no longer think that, the passage remains historically interesting in that it shows that Aquinas held the relation of ruler and ruled to be essential to human society in both the prelapsarian and lapsarian condition.