Tag Archives: jurisprudence

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.

A Few Words on Authority

 

Introduction[1]

In their book, Law and Justice in Community, Barden and Murphy discuss in some detail the topic of legal authority.[2] According to them, we can speak of legal authority in two senses:

First, a ruler is said to be in ‘authority’ over his subject in that the ruler is entitled to command his subject who, reciprocally, is obliged to obey. […] Secondly, a person is said to be an ‘authority’ in as much as he is expert in a domain and worthy of belief, although not infallible. The source of authority of this type is expertise, truthfulness or, in moral affairs, wisdom.[3]

Authority in the second sense, i.e. expertise, plays an important role in contemporary positivist legal theories, especially the one presented by Joseph Raz. At the conference in Reykjavik, held in March 2011 and dedicated to the publication of Barden’s and Murphy’s book, discussions took place on the soundness of Raz’s authority concept. In my talk at the conference and in this short paper I argue against it.

The obstacle

As Hart famously showed, the earlier positivist theories of Austin and Bentham, describing laws as orders backed by threats, were unable to explain the difference between the law and the orders of a gunman and therefore failed to give a sufficient account of our concept of law. The key to understanding this difference was to adopt what Hart called the internal aspect of rules. The legal theorist has to acknowledge that people do not understand rules simply as a basis for a prediction of hostile reactions, but as a reason for hostility. Legal rules appeal to respect for authority, and create an obligation, while the gunman’s threat appeals to fear, creating no obligation (even though you may be obliged to follow his orders).[4]

HLA Hart, a self-claimed positivist, thus agreed that authority is an element involved in our concept of law. However, the naturalist explanation of authority was denied to him as he claimed that there is a conceptual distinction between law and morality and that the foundation of the legal system, the rule of recognition, did not need to be based on morality. [5] This created a problem for him:

 

…the element of authority involved in law has always been one of the obstacles in the path of any easy explanation of what law is.[6]

However, Hart had not said his final word on the element of authority. As will be discussed below, he later gave a more detailed (and better) account of authority. Later on, his former apprentice, Joseph Raz, added to the positivist explanation of authority.

I argue that in spite of later attempts by Hart and Raz to give a satisfying account of law’s authority, for a positivist the element still presents an ‘obstacle in the path of any easy explanation of what law is’.

As discussed earlier, serious flaw in the positivist theories of Bentham and Austin, describing the law as commands backed by threats, was their inability to explain the difference between obeying legal rules, on the one hand, and the orders of a gunman, on the other. When realizing how people understand rules as not just a basis for a prediction of hostile reactions, but a reason for hostility, one can see that legal rules appeal to respect for authority, and create an obligation, while the gunman’s threat appeals to fear, creating no obligation. However, the question remains: why do people understand rules in this way? Why do they view legal rules differently than orders from a gunman? Hart did acknowledge that the ‘coercive power of law presupposes its accepted authority’.[7] But to him, that did not mean that law needed to be accepted as morally binding.[8]

This may be the case for the ordinary citizen, who may never give a serious thought to why he sees laws as reasons to act. But this can hardly apply to the officials, enforcing the law. It is hard to imagine a legal system, let alone a stable one, where the officials adopt the internal point of view, seeing the rules as reasons for action and hostility, without grounding this perspective on any moral reason whatsoever. Not to mention the situation where the officials have strong moral reasons not to adopt such a view. If the only reason for adopting the view is social pressure (or fear) we are simply back in the gunman situation.

Hart therefore used the conception of authority to articulate an important difference between a legal system and the power of the gunman. But at the same time, it made his theory vulnerable to the argument that by correcting some of the mistakes made by earlier theorists he had in fact abandoned the positivists’ distinction between law and morality. He was therefore quite right to acknowledge the concept of authority as an obstacle to an easy positivist explanation of what law is.

Unsuccessful Attempts to Remove the Obstacle

Since the publication of The Concept of Law, theorists have given the concept of legal authority a closer attention and attempted to clarify its role in legal theory. Here, two of these attempts will be briefly discussed; Hart’s own modification of the concept and, more importantly, the one made by Joseph Raz.

Hart introduced a developed account of legal authority in his ‘Commands and Authoritative Legal Reasons’, which was written under influences from Joseph Raz.[9] There, Hart defines authoritative legal reason as such:

[T]hat is a consideration […] which is recognized by at least the Courts of an effective legal system as constituting a reason for action of a special kind. This kind of reason I call ‘content independent and peremptory’.[10]

A reason, according to Hart, is peremptory when it cuts off the hearer’s deliberations for acting and thus replaces all other reasons. A reason is content independent if it presents a reason for action ‘independently of the nature or character of the actions to be done’.[11]

Hart uses the third chapter of the article to resist the argument that the ‘Courts of an effective legal system’ could only have moral reasons for their actions, which, as mentioned earlier, would have meant that he had abandoned the positivist view on the relationship between morality and law.[12] He believed that the requirement that the courts see legal rules as authoritative could be satisfied by motives ‘which have nothing to do with the belief in the moral legitimacy of the authority whose enactments they identify and apply as law’.[13] For an example of this, he mentions compliance on the basis that the judges had sworn on taking office to continue the established practice.

This later account of legal authority adds much to what had been said in The Concept of Law and gives a fuller picture of the foundations of the legal system in Hart’s theory. However, some difficulties remain.

First, the notion of legal rules functioning as peremptory reasons clearly does not describe their actual function in modern legal systems. People do not surrender their judgments by letting legal rules cut off their deliberations on whether or not they should perform the acts required by the rules. A rational person, with a ‘standing recognition’ of legal authority, may well reflect on whether or not she should follow a given legal provision or not. If she ultimately decides not to break the law she has obviously shown the utmost respect for legal authority, even though the deliberation did take place.[14]

Secondly, Hart not only insists that the officials of the legal system do not need to view the rule of recognition as morally binding but goes further (than Raz) and maintains that they do not even have to pretend to view the law as binding in this way. As Hart himself acknowledged, this is somewhat troubling given his own account of the function of authoritative legal rules:

I am vividly aware that to many it will seem paradoxical, or even a sign of confusion, that at the end of a chapter, a central theme of which is the great importance for the understanding of law of the idea of authoritative reasons for action, I should argue that judicial statements of the subject’s legal duties need have nothing directly to do with the subject’s reasons for action.[15]

Hart undeniably strengthened his theory with his new account of legal authority. But this later effort was not enough to remove the obstacle. We therefore turn to the theorist who has probably given more thought to the concept of legal authority than anyone else.[16]

According to Joseph Raz, all legal systems claim legitimate authority and a system that cannot possess such authority cannot be a legal system.[17] His conception of authority is grounded on three theses: the dependence thesis, the normal justification thesis and the pre-emption thesis.

According to the dependence thesis ‘all authoritative directives should be based on reasons whish already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directive’.[18] According to the normal justification thesis:

[The] normal way to establish that a person has authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.[19]

Scott J. Shapiro summarizes Raz’s pre-emption thesis as follows: ‘When authorities require performance of an action, their directives are not merely added to the balance of reasons, but they also exclude these reasons and take their place.’[20]

These different aspects of Raz’s authority concept will not be pursued further, but some of them will be discussed (and criticized) in more detail later in this paper. It is necessary though to emphasise the importance of the dependence thesis and the normal justification thesis as constituting the service conception of authority. This means that authorities provide service to their subjects by mediating ‘between people and the right reasons which apply to them’.[21]

Raz maintains that authorities can fulfil their roles as mediators between people and reasons, only if their decision can be identified by means ‘other than the considerations the weight and outcome of which it was meant to settle’.[22] It is this feature of Raz’s authority concept that leads to his rejection of the incorporation thesis adopted by so called inclusive positivists. In other words, Raz rejects the idea that a legal rule can by referring to a moral norm incorporate it into the legal system. According to this, a legal rule which refers to a moral standard, e.g. ‘due process’ or ‘degrading treatment’, merely gives power to the courts to legislate on the subject. His conclusion is that the ‘sources thesis’ (claiming that legal validity can only be established by reference to the conventionally identified sources of law) should be preferred over the incorporation thesis.

Raz’s strong focus on the concept of authority can therefore be explained by the twofold role it plays in his theory. Not only is it the basis of his theory as a positivist arguing against competing theories, but it is also meant to defend his exclusive positivism against the line of positivist theories which allow for non-source-based laws to be entailed by the source-based law. However, as thoughtful and sophisticated his conception of authority is, many aspects of it raise serious questions and doubts.

As noted earlier, Raz maintains that all legal systems claim legitimate authority and a system that cannot possess such authority cannot be a legal system. Dworkin points out that this might suggest that no system can be regarded as a legal system unless it fulfils all the requirements of having legitimate authority, among them the moral requirements that Raz himself recognizes.[23] This, however, would make his exclusive positivist theory untenable.

Raz understands this difficulty, because he is careful to declare that being “capable” of legitimate authority requires meeting all the non-moral conditions of that status but not require meeting any of the moral ones. He says that this distinction is “natural,” though he does not explain why.[24]

Dworkin has a point here. Raz seems to be adjusting his concept of authority to his own theory of exclusive positivism. This is troubling, because the concept of authority forms the basis of Raz’s theory of law, not vice versa.

Secondly, Raz’s authority concept seems somewhat ‘eccentric’.[25] Take for example the normal justification thesis, the core of the service conception. According to the thesis, legal authority is agent specific. It depends on the service the directives provide each individual with, which of course varies between people of different skills and expertise. This may well hold as an academic account of the concept of authority but it hardly provides us with the ‘normal’ way to establish legal authority in real life. We normally talk about governments or legal acts having authority in much more general terms.[26] It sounds strange for example to say that no general answer can be given whether or not the legislator had authority to ban smoking in public places and that the answer simply depends on whether we are asking the question on behalf of Peter or Paul.

It is not only the aspect of agent-specificity that disturbs our normal notion of legal authority. Most citizens of modern democracies probably accept the state’s authority in many cases even though they are not being served in the Razian sense. Indeed, Raz himself acknowledges that his concept leads to the conclusion that even the states that are ‘reasonably just’, often exceed the sphere of legitimate authority.[27] Again, this does not constitute a logical problem for Raz, but it shows that his concept is somewhat distant to our general notions of legal authority.

Thirdly, Himma, although being partly mistaken in his criticism, has marked a different kind of problem with Raz’s authority concept. Himma claims that the normal justification thesis implies that legitimate authority is unlimited.[28] Read in isolation the thesis certainly gives the impression that as long as the legal authorities know better then you and can provide you with their service, their authority is legitimate. This would leave no aspects of one’s life out of their reach. However, this criticism is misdirected because Raz specifically presents an ‘exception’ to the normal justification: ‘this general rule has an important exception. It consists of all those matters regarding which it is more important to act independently than to succeed in doing the best’.[29]

The exception may save Raz from the otherwise devastating effect of Himma’s criticism. But at the same time it waters down the normal justification thesis. Read together with the exception the thesis could be accepted by almost all theorists concerned about legitimacy of state authority. The libertarians and the anarchists would simply say that in almost all aspects of life it is ‘more important to act independently than to succeed in doing the best’ while the communists and fascists would argue that the exception creates a very limited sphere of protection from legitimate state authority.[30] In other words: the exception strips the concept of most of its practical usefulness.

Finally, Raz’s authority concept seems to ignore procedural aspects of authority. Most would agree that a democratic legal regime, allowing its subjects to influence governmental policies and accepting the voters’ decision every four years, enjoys greater legitimate authority than a dictatorship even though the latter might on balance take wiser decisions for its subjects.[31] But the normal justification thesis does not explain this difference. On the contrary, it seems to award the dictatorship in the example greater authority as it provides its subjects with better service than its democratic counterpart.

To summarize: Joseph Raz set out to describe ‘the core notion of authority’, a concept ‘deeply embedded in the philosophical and political traditions of our culture’.[32] Raz fails to do exactly that by presenting a conception of authority which is strictly agentdependent, ignores the importance of procedure (democracy), and seems to be specially designed to serve the ends of external positivism.

 

Conclusion

One of the main advantages of Hart’s theory, presented in The Concept of Law, is that it not only describes in general terms important features of legal systems but does so in a relatively simple way. Hart was right however to note that for a positivist like him, trying to describe ‘what the law is’, the element of authority presented an obstacle. An obstacle certainly not sufficiently dealt with in the book itself. Later attempts to remove the obstacle by clarifying the concept have not come without a cost. First, the more sophisticated the explanation of authority has become, the more distant it has become to our general usage and notion of the concept. Second, although many theorists may accept Raz’s account of the element of authority, few would describe his explanation as simple.[33] And the more complicated it gets, the farther we move from the path of an ‘easy explanation of what law is’.

Bibliography

Austin J., The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (Hackett Publishing Company, Inc., Indianapolis 1954)

Barden G. and Murphy T., Law and Justice in Community (OUP, Oxford 2010)

Dworkin R. M., Law‘s Empire (Harvard University Press, Cambridge, Massachusetts 1986)

–          Justice in Robes (Harvard University Press, Cambridge, Massachusetts 2006)

Finnis J., ‘Natural Law: The Classical Tradition’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence & Philosophy of Law (OUP, Oxford 2002)

 Hart H. L. A., The Concept of Law (2nd edn OUP, Oxford 1994)

–          ‘Commands and Authoritative Legal Reasons’ in Essays on Bentham:  Studies in Jurisprudence and Political Theory (Clarendon Press, Oxford 1982)

Scott Hershovitz, ‘Legitimacy, Democracy and Razian Authority’, (2003) 9 Legal Theory

Himma K. E., ‘Just ´Cause You’re Smarter than Me Doesn’t Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis’ (2007) 27 OJLS, 121

Raz J., The Morality of Freedom (Clarendon Press, Oxford 1986)

–          ‘Introduction’ in Joseph Raz (ed), Authority (New York University Press, New York 1990)

–          Ethics in the Public Domain: Essays in the Morality of Law and Politics (OUP, Oxford 1995)

Shapiro Scott J., ‘Authority’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence & Philosophy of Law (OUP, Oxford 2002)

Tucker A., ‘Beyond the Normal Justification Thesis: Jurisdiction in the Service Conception of Authority’, <http://www.trinitinture.com/documents/tucker.pdf> accessed 28 July 2011


[1] This paper is based on my talk at a conference held in Reykjavik 4 March 2011 on the occasion of the publication of Garrett Barden’s and Timothy Murphy’s book Law and Justice in Community. It is based on an earlier article of mine, ‘Are Law and Justice Intrinsically Related? – A Sketch of an Answer’, which was published in Rannsóknir í Félagsvísindum X, Lagadeild (Félagsvísindastofnun Háskóla Íslands 2009). I want to thank Daníel Isebarn Ágústsson, Eirik Sördal, Finnur Þór Vilhjálmsson, Hafsteinn Dan Kristjánsson, Maita Chan-Gonzaga, and Tómas Hrafn Sveinsson for discussions on the ideas presented in the paper.

[2] Garrett Barden and Timothy Murphy, Law and Justice in Community (OUP, Oxford 2010), esp. chapter 11.

[3] Ibid, pp. 232-233.

[4] HLA Hart, The Concept of Law (2nd edn OUP, Oxford 1994), pp. 6, 20 and 90.

[5] HLA Hart, ‘Commands and Authoritative Legal Reasons’ in Essays on Bentham:  Studies in Jurisprudence and Political Theory (Clarendon Press, Oxford 1982), pp. 243 and 265. For a naturalist’s account of legal authority, see John M. Finnis: ‘Natural Law: The Classical Tradition’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence & Philosophy of Law (OUP, Oxford 2002). For my own thoughts on the natural law explanation of authority: Hafsteinn Þór Hauksson, ‘Are Law and Justice Intrinsically Related? – A Sketch of an Answer’. 

[6] HLA Hart, The Concept of Law, p. 20.

[7] Ibid, p. 203.

[8] Ibid, p. 203.

[9] HLA Hart, ‘Commands and Authoritative Legal Reasons’ in Essays on Bentham: Studies in Jurisprudence and Political Theory, p. 244.

[10] Ibid, p. 243.

[11] Ibid, p. 254.

[12] Ibid, p. 262.

[13] Ibid, p. 265.

[14] Joseph Raz, The Morality of Freedom (Clarendon Press, Oxford 1986) 39. The phrase ‘standing recognition’ is from Hart himself. HLA Hart, ‘Commands and Authoritative Legal Reasons’ in Essays on Bentham:  Studies in Jurisprudence and Political Theory, p. 256.

[15] HLA Hart, ‘Commands and Authoritative Legal Reasons’ in Essays on Bentham: Studies in Jurisprudence and Political Theory, p. 267.

[16] Ibid, p. 265.

[17] Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (OUP, Oxford 1995), p. 215.

[18] Joseph Raz, Morality of Law (OUP, Oxford 1986), p. 47.

[19] Joseph Raz, Morality of Law (OUP, Oxford 1986), p. 53.

[20] Scott J. Shapiro, ‘Authority’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence & Philosophy of Law (OUP, Oxford 2002), p. 404.

[21] Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics , p. 214.

[22] Ibid, p. 219.

[23] Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics, p. 199.

[24] Ronald Dworkin, Justice in Robes (Harvard University Press, Cambridge, Massachusetts 2006) p. 202.

[25] Ibid, p. 201.

Adam Tucker, ‘Beyond the Normal Justification Thesis: Jurisdiction in the Service Conception of Authority’, <http://www.trinitinture.com/documents/tucker.pdf>, p. 5. Tucker’s article is a draft prepared for Oxford’s Jurisprudence Discussion Group which met with the author in November 2007. I had the privilege of participating in the discussions and was given permission by the author to cite the article.

[27] Joseph Raz, Morality of Law, p. 70.

[28] Kenneth Einar Himma, ‘Just ´Cause You’re Smarter than Me Doesn’t Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis’ (2007) 27 OJLS 121, p. 144.

[29] Joseph Raz, ‘Introduction’ in Joseph Raz (ed), Authority (New York University Press, New York 1990), p. 13; Tucker, ‘Beyond the Normal Justification Thesis‘, pp.15-16.

[30] Tucker downplays the importance of this point in his article. See, Adam Tucker, ‘Beyond the Normal Justification Thesis’, p. 17. I, however, believe it is of great importance. The value and extent of personal autonomy lies at the heart of the differences between competing political theories.

[31] See Himma’s imaginary example of the two states, Coercia and Consentia. Kenneth Einar Himma, ‘Just ´Cause You’re Smarter than Me Doesn’t Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis’, pp. 142-144.

[32] Joseph Raz, The Morality of Freedom, pp. 63-64.

[33] Ronald Dworkin, Law’s Empire (Harvard University Press, Cambridge, Massachusetts 1986), p. 199; Scott Hershovitz, ‘Legitimacy, Democracy and Razian Authority’, (2003) 9 Legal Theory pp. 201, 206.

Equality: A Principle of Human Interaction

 

In the preface to Law and Justice in Community the authors say:

This work is a study in jurisprudence that considers the proper function of law to be the promotion of a context in which, without impeding one another, we can lead our lives together in peace and justice.[1]

In this vision of the proper function of law the authors capture the core purpose of a legal system, as a tool to support a good and just society, for example by promoting the common good and defining social order. The law evolves in a moral context which instructs that “to act reasonably and responsibly is the demand intrinsic to our moral experience as humans.”[2] Natural justice or intrinsic moral behavior, such as to consider the interests of others, is cultivated and expressed in “the living or communal law” of a society.

Humans, the authors insist, are social animals and live by necessity in communities[3] and the ways of doing things in the community, customs, practices, expectations, develop in time into jural relationships—the “living law”—normative principles generally approved of by the community. Thus, they deduct, law in fact existed in all human communities before it ever was expressed in a formal way. Law is thus a product of evolution and in no way that of any social contract.[4] Rights and duties are not based on a consensus, they are entitlements that must be mutually valued for a society to survive, discoverable objects of justice. The authors adopt a classical theory of rights, maintaining that rights “are a function of justice understood as the giving to each what is due.”[5] However, they denounce a subjective understanding of rights, thus a right only exists if it can be defined as an entitlement that has been accepted or acknowledged in the society.[6] Until it has been recognized it is only an as yet unsubstantiated claim.

So far I have more or less been in agreement with the authors, here I have to pause however, because they explicitly note that this view of the nature of rights applies to all rights, not just positive legal rights, or rights to a tangible object. It also applies to “natural rights” and “human rights” like those rights listed in the Universal Declaration of Human Rights: in so far as the respective society of a proposed right-holder has not recognized the Declaration or the entitlement as such, there is no right to speak of.[7] 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.

But I am not going to dwell on criticisms; rather I want to propose a vision of the initial status and interaction in human community and its consequences. The concept of “living law” as presented by the authors is plausible, but it does not, it seems to me, suffice to promote “a context in which, without impeding one another, we can lead our lives together in peace and justice.”[8] This is so because the darker elements of human nature or simply the differences in physical and mental strength are bound to have had an influence on the development and acceptance of the “living law”. That is to say, if this development is left to chance and no conscious measures are taken to guard a natural balance, an error in society’s harmony may result.

Humanity

Before proceeding I must reflect on a few theses about human nature.

Many scholars have tried to define what exactly being human implies and its moral implications. Some want, for example, to describe the concept from the perspective of an inner self or consciousness, others emphasise psychological qualities such as memory and mind. Thomas Nagel stresses the transcendental nature when he says: “People can come to feel, when they are part of something bigger, that it is part of them too.”[9] Nagel sees the capacity of insight—to transcend oneself in thought—as the cause of our feeling that life is absurd, which, in turn, he holds is “the most human thing about us”.[10] He acknowledges the circularity of referring to such arguments but adds: “We adhere to them because of the way we are put together; what seems to us important or serious or valuable would not seem so if we were differently constituted.”[11] Nagel captures here, I think, the essence of the human nature, the mystery of the conscious mind as it is expressed through imagination and desire.

Another distinctive capacity human beings share is rationality. The Stoics compared rationality with a creature which forms and controls the individual it resides in as if it has a will of its own, but is at the same time like a bird in a cage, bound within the human individual.[12] In other words it needs to be cultivated and nourished and tamed so it may control the impulses to less virtuous actions rooted in our natural drive of self-preservation.

The degree to which human beings have this capacity or use it is irrelevant in this context, as well as the fact that it may be partly or completely lost on some, because this does not change the overall picture of how human beings are constituted. It is a characteristic of human beings that they are capable of virtue and rationality; and in this sense all men are equal, or as Johnny Christensen puts it:

Parity of natural potentiality is implied by the very definition of man. Therefore there can be no natural differences between Greek and Barbarian, man and woman, noble and commoner, free man and slave.[13]

And finally I would like to refer to Bernard Williams, who argues in his essay “The Idea of Equality”[14] that it is neither trivial nor a platitude to say that men’s common humanity constitutes their equality. Any difference in the way men are treated must be justified, he says, and this is seen by many to imply “an essential element of morality itself”.[15]

Human needs

Now, a reflection on the needs of the human being. Aristotle said that man needs certain living conditions to flourish and to perfect his human nature—learning virtue and good manners.

Thus, the human being needs relations with other human beings; but moreover she needs to experience autonomy in respect to her options and status,[16] this must be so because of her sense of the individual self, sense of well-being and sorrow, sense of right and wrong, etc. It is this somewhat mysterious characteristic of the human being that calls for a society in which equal consideration and respect are essential elements. In such a society fundamental rights, as we call them, are intended to protect those values of a human life that we see as essential to the sense of existence and the autonomy of everyone: and for these we constantly struggle.

In ancient Greece, where the law was based, in part at least, on convention or the “living law”, philosophers saw the role of motherhood as a reason to doubt the full humanity of females[17] and ever since this has significantly contributed to their subjugation. Women have been, as Kymlicka says, “associated with the merely animal functions of domestic labour, whereas men achieve truly human lives by choosing activities according to cultural goals, not natural instincts”.[18] When a certain group of people has been displaced in society for any reason, such as has for example been the case with black people and women, it is clear that their fundamental equal status has been violated, and their human status has not been respected. Today we call this discrimination; something must have gone wrong in the development of law and that implies the “living law” has not sufficed to secure a good and just society in the absence of guiding principles.

What we know about the inner life of human beings is sufficient to provide us with a compelling reason for acting at least in one certain fashion, and that is to treat all human beings with equal consideration and respect. To act otherwise amounts to abusing the common needs of all human beings. Barden and Murphy might want to qualify that assertion by saying that we must not discriminate unjustly.[19] They also criticize Ronald Dworkin’s thesis about a right to equality of concern and respect[20] by reference to their down to earth relativistic view of the law.[21] Their relativism nevertheless misses an important point about the nature of fundamental rights. In line with Dworkin I would now like to further suggest that equality is the fundamental principle of human interaction, and that any thesis that does not embody it is therefore fundamentally flawed.

Hypothesis: a platform of equality—a principle of human interaction 

In this final section of my paper, I want to propose an argument. In substance it holds 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”.[22] I will venture a strong approach to a principle of equal consideration and respect as a rationale for any fundamental rights human beings may have.[23] On this understanding, the conception of equality is prior and primary to, as well as being in a causal relationship with, the existence of the values we call fundamental rights of human beings; not the other way around. This is so, because when we have defined the characteristic elements of human nature, as above, and reflected on them, we can agree, I think, that there can be no justification at hand for discrimination in respect to those elements.

Follow me now in a little thought experiment. Imagine a platform, like a huge derrick or an outdoor stage, or the starting square in a game. On this platform we have all the human beings there are. Maybe this is at the very beginning of human existence, it does not make a difference. They are landed there in their capacity as human beings; before the game starts; before they begin to fend for themselves in the state of nature or in society. I like to call this position the Platform of Equality.

We may be looking from high above, so we cannot see the details. We only see human beings and as such they are all the same. In fact one may talk louder than another, one may be physically stronger than another, one may be equipped with a better tool to reason. Because of such differences we sometimes say that men are approximately equal,[24] but the important question is: do these differences entitle them to a head start in the game, or in life in fact? I think we can agree that they do not, so let’s imagine that the human beings on the Platform have not yet themselves realized these differences. They are qua human beings all in equal need of the basic necessities that bring a flourishing human life. There at the Platform there is no ruler, and as yet no rules. It is here that the “living law” begins to develop, and the important question is by what norms it will be guided. Will it be by the understanding and respect for mutual human needs, or will this understanding—an essential condition for a peaceful society in which everyone may flourish—be lost on many when they have started to fend for themselves and individual strengths prevail, thus unduly influencing the development of the “living law”?

The point being stressed here is simply that human nature requires that everyone is equally ensured the opportunity to be in control of those matters in her or his life that are the most important for human living. On this understanding, it is not just having the same fundamental rights that constitutes the parity of human beings, but that human beings more importantly have these rights because they are equal in a fundamental and natural sense; it is the sameness that inspired the Stoic’s teachings of brotherhood or solidarity.

We can imagine that we draw a circle around each and every individual on which those items most important for human living are located. They may then be seen like electrons circling an atom, bound to its core by an invisible force. And they cannot be removed without consequences: the disruption of the individual as an autonomous entity. If we make a list of these needs and values we will obviously find security of life, liberty, food and shelter—and most likely other elements and values which today are acknowledged in human rights clauses and conventions. But in spite of the fact that all humans are fundamentally the same in regard to these basic elements, they are still different in their individuality and strength, and that fact makes it essential to recognize and find a way to protect their equality in respect to these fundamental elements, as humans diverge from the Platform of Equality.

From the Platform of Equality we continue to build a society, applying a theory of the development of laws or some contract theory of fairness; but a primary premise must always be that the citizens already have those properties—we can call them rights—equally allocated, and that those cannot be obliterated or curtailed by our actions, customs or the rules we set. On those terms a society evolves from the grounds of that which is essential for the development and wellbeing of everyone who lives in it. That is the idea of the Platform of Equality; building society on the conception of fundamental equality. From there other interactions may develop.

If society is a necessity for humans, as the authors hold, that must only be true in so far as the individuals are not harmed by it. Who has a need (perhaps mere survival aside) for being in a group where he is ill-treated or subjected to the domination of another, or subjected to lifelong poverty, or not treated with equal concern and respect to other members of the group? To stay with an analogy from physics, interaction is meant to transfer energy, not destroy it.

If we take equality of humans in this sense seriously it leads us to an awareness of the necessity of protecting certain fundamental rights and to provide certain conditions based on respect for the values these protect. In the case where these are not acknowledged as valid entitlements action is needed to correct the situation. Government power, official institutions and private enterprises must follow suit, and experience shows we cannot leave this entirely to development. These principles should always have been clear, but they have not been, or not opted on. We have realized that things are not right, and tried to define how they should be by using the hypothetical methods of natural or positive law, social contract theories or the concept of the living law; but, I believe our documented failure lies, among other things, in never defining properly what went wrong, the situation at the very beginning, at the Platform of Equality and the development of society from there on. We have failed to recognize how the principle of equal consideration and respect is derived from our very nature. And the necessity of protecting certain fundamental rights and living conditions come from that fact, not the other way around.

It is of course complicated to turn around in the real world where we have obviously started down a terribly wrong path, a long, long time ago, but to think it over and realize the mistake may be taking the first step to rectification. Hopefully we have not created a web of rules so entangled that we cannot disentangle it for the cause of a just society. That seems necessary if the law is ever to fulfil its proper function of promoting “a context in which, without impeding one another, we can lead our lives together in peace and justice.”[25]

 


[1] Garret Barden and Tim Murphy, Law and Justice in Community, Oxford University Press Inc, New York, 2010, p. vx.

[2] Ibid. p. 9

[3] Ibid, p. 20.

[4] Ibid. pp. 20-22.

[5] Ibid. p. 16, cf. pp. 206, 210.

[6] Ibid. p. xiv, pp.205-212.

[7] Ibid. p. xiv.

[8] Ibid. p. vx

[9] Nagel, T., Mortal Questions, Cambridge University Press 1979, p. 16.

[10] Ibid. p. 23.

[11] Ibid. pp. 17-18.

[12] Christensen, J., Equality of Man and Stoic Social Thought, Comm. Hum. Litt. 75 (1984), pp. 45-54, at pp. 45-6.

[13] Ibid. p. 46.

[14] Williams, B.A.O., The Idea of Equality in Justice and Equality, Bedau, H.A., (ed.), Prentice Hall, New Jersey 1971, pp. 116-137, at pp. 116-117.

[15] Ibid. p. 117.

[16] It is this sense of life we mean when we talk about human beings flourishing as the beings they are. A good society provides such conditions. Good society is governed by good laws, said Aristotle, but will be destroyed by bad. The laws are to proscribe and guard those elements that entice welfare and happiness. And in so far as the law is good, one who infringes it does injustice. Aristotle discusses these matters in his Ethica Nicomachea and Politica, e.g. NE I 4 1095a.

[17] Aristotle, De Generatione Animalium, Book IV, 767b, cf. 775a.

[18] Kymlicka, W., Contemporary Political Philosophy: An Introduction, Oxford University Press, Oxford 1990, p. 255.

[19] Barden and Murphy, p. 210. The principle to treat everyone with equal concern and respect they argue “demands […] that one not discriminate unjustly between people.”

[20]  Barden and Murphy quote Dworkin: “We may therefore say that justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.” Dworkin R., Taking Rights Seriously, Cambridge, Mass: Harvard University Press, 1977, p. 182.

[21] Barden and Murphy, pp. 209-210.

[22] Barden and Murphy, p. vx.

[23] In my approach I have in particular been influenced by two conceptions. One is Ronald Dworkin‘s thesis that governments ought to treat people ‘as equals‘ and not merely ‘equally’. His theory of equality is complex but importantly he seems to see equality as a fundamental value and liberty and equality as inseparable. See e.g., Dworkin, R., “Liberalism”, in Public and Private Morality, Stuart Hampshire (ed.), Cambridge University Press, Cambridge 1978, p. 113ff, at p. 125; and Taking Rights Seriously, Harvard University Press, Cambridge, Massachusetts 1977, p. 227.The other is the ‘respect principle’ Tom Regan spells out in his The Case for Animal Rights, University of California Press, Berkeley 1984, pp. 326-327.

[24] Hart, H.L.A., The Concept of Law, Clarendon Press, Oxford, second edition, paperback, 1998, p. 195.

[25] Barden and Murphy, p. vx.

 

Law and Justice in Community: The Significance of the Living Law

 

I. Introduction

Law and Justice in Community addresses the perennial issues of jurisprudence: the nature of law, obligation, authority, legitimacy, morality, natural law, etc. These are the issues that have most concerned Anglo-American jurisprudence over the past 50 years: Hart, Dworkin, Finnis and Raz (to name but a few) have all focused on these issues. But Law and Justice in Community lies in a different intellectual tradition. It draws principally on the ideas of Aristotle and Aquinas, combined with an account of justice honed through a consideration of Roman law. This leads to some novel insights. In particular, the book provides an account of law that privileges the ongoing role of custom (or the living law) in opposition to what the authors characterise as positive or state law. The authors’ elision of positive and state law is less than helpful, for present purposes. Legal positivists would tend to include custom or the living law within the scope of “positive law”, on the basis that it can be objectively identified by reference to social fact without recourse to value. The real point of comparison lies between the living law and the law that comes about where one has a state, a municipal legal system. In this article, I propose to explore what the authors take to be the living law and to assess its descriptive and normative significance. I shall do this by comparing Barden and Murphy’s work with the work of HLA Hart who privileged the role of state law in his Concept of Law. 

 

II. Barden and Murphy’s concept of the living law

II.1 Images of the living law

At the start of their book, Barden and Murphy refer to a common understanding of law as involving state law. Examples of this are constitutional law, enacted legislation, judge-made law and perhaps at least some elements of international law. However, this is not the understanding of law that Barden and Murphy adopt. By “law,” they mean “those judgments and choices that in recurrent kinds of circumstances are generally accepted and approved in a particular community.” (LJC, 3) They use a number of interchangeable words for this phenomenon: “living law,” “communal moral law,” “communal law,” “custom,” “moral tradition.” (LJC, 3-4) The living law is originally unwritten; it is generally accepted as what constitutes the community. Interestingly, Barden and Murphy describe the living law also as the set of communally accepted norms that express how, in certain types of situation, members of the community are obliged to act. (LJC, 4) They recognise that in communities some norms will be treated as being of greater importance. Failure to act in accordance with some norms will occasion significant disapprobation; disregard of others might meet only with mild disdain. (LJC, 4) Nevertheless, it appears that all such norms are part of the law, in the sense in which Barden and Murphy use that term.

In Chapter 2, Barden and Murphy explore the origins of the living law. In this regard, they are primarily concerned to reject the idea of society as an organisation, contract-based or the result of a conscious decision. Instead, they argue that society is a spontaneous order. They note that Aristotle, Aquinas and Hobbes all considered that humans needed to live in community. Again, they present a picture of the living law emerging as the views in a community of how things should be done. They identify customs, practices, well known and accepted procedures, and mutual expectations that establish the jural relationships particular to any community. (LJC, 22) This notion of jural relationships is crucial. As well as the observable, empirical reality, there is a jural reality. At this point in the book, it is unclear whether these obligations are merely obligations from the perspective of the community or true obligations, ie moral obligations that do truly apply to us. Setting aside the moral status of these obligations, Barden and Murphy emphasise that the obligations are legal in their sense of the term, and only extra-legal in a narrower state-law sense. The basis for jural relationships is positive: “those judgments and choices that in recurrent types of circumstances are generally accepted and approved of in a particular society” (LJC, 22), but it may be that some true moral obligation accompanies this. This arises because a civil society is maintained when those within it act well; it is undermined when those within it act badly. The honest man will choose not to steal because he respects the owner’s interest. It therefore appears that there is an inbuilt bias, at the very least, to true obligation (in Barden and Murphy’s usage, values that should prompt reasonable people to view themselves as under an obligation) because the living law that provides obligations for the community would start to fall apart if those obligations did not, by and large, tend towards truly just outcomes that allowed people to live together.

Barden and Murphy then explore the function of law: it an original unchosen but given social order, the further development or decline of which depends upon the choices of those who live within it. The maintenance of good order is the common good. Both the living law and positive law contribute to this. The common good is not an aim but a framework. (LJC, 30) They return to the notion of a jural order as a network or bundle of entitlements, some derived from the living law and some from the positive law. The jural order is chosen to the extent that each member of the community chooses to act in a way that respects others’ rights. In Roman law, it was recognised that every society was governed partly by laws which were peculiarly its own (ius civile) and partly by laws which were common to all mankind (ius gentium). The ius gentium is discovered as common, not invented. Some laws are fundamental in that they are essential to communal life: were people not to act for the most part in accord with them, Barden and Murphy say, jural order and the social order could not survive. All societies need laws against random and indiscriminate killing and rules of ownership. Further conventions are needed to give effect to detailed rules (this is ius civile), but they cannot undermine the ius gentium. (LJC, 31-32)

Barden and Murphy conclude chapter 2 with a useful synopsis of the picture being presented:

In sum, then, we suggest that communal living is natural to humans and that within the community the living law and the positive or state law share the function of sustaining a peaceful order. Any jural order requires a common core of some fundamental human customs and practices. That is the ius gentium of Roman law. Generally speaking, other more detailed customs and laws select and enjoin one way of acting rather than another when there are several, often disputed, possibilities. These conventions include detailed rules of law – the rules of the ius civile – and differ from jurisdiction to jurisdiction. But the detailed rules cannot coherently undermine or conflict with the fundamental customs and practices, which express an understanding of common and necessary social practices without which any society would disintegrate. (LJC, at 39)

 

II.2 The interaction between the living law and state law

Barden and Murphy return to the distinction between state law and the living law in chapter 2. They emphasise that state law includes the formulation or expression of living law. The formulation expresses an understanding of some, but not all, social practices. However, as state law presupposes a state and will partially set out the relationships between people and the state, it cannot be solely an expression of the living law that pre-existed the state. (LJC, 24)

Barden and Murphy note that others accept some role for custom (as a source of the content of much of positive law, for instance), but Barden and Murphy want to emphasise a greater role. Judicial decisions that adopt customs do not supersede customs: the customs remain customs. The living law generates the positive law on an ongoing dialectical basis. They also suggest, relying on Porter, that state law will have no purchase on a community unless it reflects custom in some way.[1] Furthermore, various customary rules are necessary to allow the positive law to function – customary rules concerning institutions, interpretation, etc.  (LJC, 25-26) Barden and Murphy also say that a human society could exist without positive law (LJC, 34). However, it could only be a small community, and close-knit.

Barden and Murphy’s consideration of the interaction of state law and the living law reveals a number of important features. First, the living law is chronologically antecedent to state law. One can have communities that are not states, although they must be small and close-knit. All communities must have the living law, because the living law is simply that set of more or less shared, more or less specified norms that govern community interaction. However, only states need state law. Second, one chooses neither one’s community nor one’s state. Communities and states neither come into existence nor continue in existence by reason of deliberate choice, but instead evolve as a way of solving the problems of living together in community. Third, the non-chosen character of states can be obscured by the way in which modern states present their origins as being a result of a foundational act of law-making. However, even when one examines a complicated, modern, municipal legal system, it becomes clear that the supposed self-sufficiency of state law is actually underpinned by a whole range of living law concerning both the method of appropriate interpretation and, crucially, the basis for ultimately identifying state law as law at all. In this way, living law is not just chronologically antecedent to state law, but is also normatively antecedent to state law. Fourth, it is clear that state law can, in substance, supplement and alter the living law. However, Barden and Murphy suggest that state law must reflect the living law of the community if it is to have purchase within the community. This suggests that there are limits to how far the state can go in stipulating norms that differ from those at which the community has arrived naturally.

 

II.3 The justice of the living law

Barden and Murphy define justice, in formal Roman law terms, as the giving to each what is her due. They identify a number of different aspects of the living law that bear on its justice.  Barden and Murphy speak of living law as expressing the approved and expected ways of acting; the living law is an expression of what is held to be just. Viewed in this way, no particular justice attaches to the living law. Those whose practices have led to the evolution of a living law believe it to be just (otherwise, their practices would be perverse), but this is no guarantee that a living law is just: the members of the community may be mistaken about justice.

However, Barden and Murphy identify the “key element” of the living law as follows:

the tendency of this law to cultivate a moral context within which others’ interests are to be considered and the related idea that this moral context is itself an expression of what is naturally just. (LJC, 27)

Viewed in this way, the living law is not simply a set of propositions about justice; it is a context that requires the consideration of the interests’ of others and, by extension, which is itself an expression of what is naturally just. Barden and Murphy equate this with golden rule in the Judeo-Christian tradition and with Cicero’s notion of justice as a communal virtue. They argue that the fundamental moral choice is between taking account of others’ interests and allowing one’s own interests absolute primacy. The reasonable conclusion to the question of how we should live is that in our decisions and actions we should take account of others. Because the living law is the context in which we do this, it has an in-built bias towards justice. It requires us at least to ask the right question (how can we live together?) increasing the possibility that we might reach the right answer.

But asking the right question does not guarantee the right answer. Barden and Murphy accept that living law is not necessarily just. They express this point in slightly different ways at different points of the text. The following extract, from the end of chapter 3, is probably the strongest formulation of the point:

Because moral traditions are necessary in human society, and because without them we could not live together, it is easy to be tempted to imagine such traditions as in all respects good or just, but this is not the case. The inevitable moral tension between taking only one’s own and taking others’ interest into account cannot but exist in human societies and therefore in its living law. The living law in a community is what is in that community taken to be just. A custom is no more than an accepted practice: to say that something is a custom is not to assign a moral value to it.

            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 support and enhance their power over others. (LJC, 62-63)

They give a few examples of this: slavery, refusal of suffrage, ostracism of unmarried mothers and their children, discrimination.

One can thus make three observations about the living law. It is an expression of what a community takes to be just. Because communities, like humans, are fallible, the living law may in fact be unjust. However, because the living law is not a set of stipulated propositions but rather a set of evolved solutions to the challenge of living together, there is a likelihood that the living law will be just.

This dual nature of the living law, in general tending towards justice but potentially unjust in any of its particulars, re-emerges much later in the book:

The communal or living law – like language – is a context within which people communicate with one another more or less well, more or less ambiguously, more or less controversially. It expresses the communal values upon which in practice depends the survival of the order within which people can live together and pursue their several goals in peace. In principle, therefore, it commends actions that realize those values and forbids those that tend to undermine them. The source of many of the particular provisions of the communal law is the evolving practices of those who live together; the practices that become, for a variety of sometimes antagonistic reasons, sufficiently acceptable to survive; and not alone communally acceptable but communally required…. We argued that the living law or communal moral law tends, generally speaking, to cultivate a moral context within which others’ interests are to be considered and this moral context is itself an expression of what is just. When others’ interests are considered, and not merely one’s own, the tendency is to give to others what is their due. The desire to live peaceably brings with it the requirement of neighbourliness: each person realizes, albeit to a greater or lesser degree, that in order for his interests to be considered by others, in order for him to get what is his due in the community, he must reciprocate and respect and consider others’ interests. We argue in favour of the judgment, which we take to be prevalent, that we should take account of others. We think of it as a reasonable conclusion to the question as to how we should live, and suggests that the unreasonableness of the opposite conclusion – that we should take no account of others – is discovered naturally by humans living together. The principle that one should act taking others into account becomes, more or less explicitly, communally accepted as part of the living law. (LJC, 177)

However, Barden and Murphy immediately accept that this general principle is limited; one cannot take for granted that these moral traditions are in all respects just. It will inevitably be corrupted by individual and group bias.

 

III. Hart’s concept of a municipal legal system

III.I The focus of Hart’s inquiry

It is clear from the outset of Hart’s book that he is focused on the law of a municipal legal system – state law, to use Barden and Murphy’s term. In the first chapter of his book, Hart addresses the difficulties in attempting to define law. He rejects the existence of “primitive law” as a reason for the difficulty. The fact that primitive law lacks a legislature and a system of centrally enforced sanctions means that it is a deviation from the standard case of a modern legal system which has such features. This is why we hesitate to apply the word “law” to primitive law. In contrast, for Barden and Murphy it is primitive law (custom) which is the standard case, both chronologically and normatively antecedent to state law.

This use of standard case methodology comes to the fore when Hart presents his union of primary and secondary rules. This performs two functions in his book:

If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist…. The union of primary and secondary rules is at the centre of a legal system; but it is not the whole, and as we move away from the centre we shall have to accommodate, in ways indicated in later chapters, elements of a different character. (CL, 98-99)

The union of primary and secondary rules thus performs two functions: it is both the heart of a legal system and an analytical tool with which to address the borderline cases. The import of this, however, is that the modern legal system is used as the analytical tool for the understanding of all other manifestations of law. The result is that other manifestations of law will appear peripheral and less true to the real nature of law than does the municipal legal system. Hart’s focus is therefore very different from that of Barden and Murphy. He observes the same features as do Barden and Murphy, but in a different way.

 

III.2 Hart’s account of the living law

In Concept of Law, Hart offers an account of custom and social rules that is, in many respects, very similar to Barden and Murphy’s account of the living law. (CL, 55-57) Hart’s starting point is a comparison between habits and social rules. He notes that both depend on a general convergence of behaviour. However, for a social rule to exist, general convergence or even identity of behaviour is not enough. Deviations from the regular course must generally be regarded as lapses or faults open to criticism. Threatened deviations meet with pressure for conformity. Moreover, not only is such criticism made, but deviation from the standard is generally accepted as a good reason for making the criticism. There need not be uniform convergence. Finally, social rules have an internal aspect, whereby those who comply with them feel, in some sense, under an obligation to do so. Somewhat later in the book, Hart distinguishes between social rules which impose duties and obligations, and those which do not. (CL, 85-88). In Hart’s view, this particular type of social rule is distinguished by three features: (a) the general demand for conformity is insistent and the social pressure brought to bear on those who deviate or threaten to deviate is great; (b) the rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life; (c) the conduct required by these rules may conflict with what the person who owes the duty may wish to do. It is instructive to quote some passages from Concept of Law to illustrate the similarity of language with Barden and Murphy, as well as some points of difference:

Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. Such rules may be wholly customary in origin: there may be no centrally organized system of punishments for breach of the rules; the social pressure may take only the form of a general diffused hostile or critical reaction which may stop short of physical sanctions. It may be limited to verbal manifestations of disapproval or of appeals to the individuals’ respect for the rule violated; it may depend heavily on the operation of feelings of shame, remorse, and guilt. When the pressure is of this last-mentioned kind we may be inclined to classify the rules as part of the morality of the social group and the obligation under the rules as moral obligation. Conversely, when physical sanctions are prominent or usual among the forms of pressure, even though these are neither closely defined nor administered by officials but are left to the community at large, we shall be inclined to classify the rules as a primitive or rudimentary form of law. (CL, 86)

It seems to me that Hart perceived the same social phenomenon as Barden and Murphy, although they would disagree over the appellation. The last sentence of the above quotation tends to show Hart associating the idea of law with the idea of a legal system embodied in a state of some kind. It is the primitive legal system that has socially administered sanctions rather than a caste of officials. Less concerted enforcement mechanisms do not count as law at all. In contrast, Barden and Murphy would see the living law just as much at work in the latter scenario. This is an important difference in appellation, however, as it leads to a very different explanatory emphasis when drawing the parameters of the concept of law.

There are several other points of comparison between Hart and Barden and Murphy. Consider Hart’s view that all legal systems necessarily contain certain types of rules:

Reflection on some very obvious generalizations – indeed truisms – concerning human nature and the world in which men live, show that as long as these hold good, there are certain rules of conduct which any social organization must contain if it is to be viable. Such rules do in fact constitute a common element in the law and conventional morality of all societies which have progressed to the point where these are distinguished as different forms of social control. With them are found, both in laws and morals, much that is peculiar to a particular society and much that may seem arbitrary or a mere matter of choice. Such universally recognized principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims, may be considered the minimum content of Natural Law, in contrast with the more grandiose and more challengeable constructions which have been proffered under that name. (CL, 192-193. Emphasis original.)

This is closely equivalent to Barden and Murphy’s account of the ius gentium and the ius civile. Hart identifies his minimum content of natural law both at a metaphysical level (while certain truisms hold good, societies must maintain certain rules of conduct in order to be viable) and at an observation level (such rules do in fact constitute a common element in the law and conventional morality of all societies). The latter approach is also the way in which Barden and Murphy identify the ius gentium: the discovery of laws that are in fact common.

As noted above, Barden and Murphy commented that there could be a society without positive law, but it would have to be small and close-knit, and “one where the degree and force of approval and disapproval – approbation and disapprobation, scorn and derision, and so on – would have to be significant indeed.” (LJC, 34) This has close parallels with Hart’s account of a society with only primary rules. Hart imagines a society without a legislature, courts, or officials of any kind. He 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 standard modes of behaviour in terms of which we have characterized rules of obligation.” (CL, 91) He rejects the appellation “custom” as it may wrongly imply that customary rules are very old and supported with less social pressure than other rules. Anticipating Barden and Murphy, he says, “It is plain that only a small community closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment, could live successfully by such a regime of unofficial rules.” (CL, 92)

 

III.3 Hart’s account of state law

Hart, of course, characterised the emergence of a legal system as the elaboration of secondary rules to remedy the defects of uncertainty, stasis and inefficiency of enforcement that attend a society bound only by primary rules of obligation. Rules of recognition and adjudication allow for resolution of disputes as to what the law is – there is no longer any need for communal agreement. Rules of change allow for the deliberate alteration of rules; rules can be changed suddenly to address changes in the world – there is no longer any need to wait for custom to evolve. Rules of enforcement grant to a particular entity the task of ensuring compliance with the law – there is no longer any need for the community to perform this task collectively. Irrespective of the empirical basis for the evolution that Hart describes, one can quickly see the distinction that is being drawn between a slow-moving, consensual community and a faster-moving, possibly of necessity authoritarian, state. Without secondary rules, one can have law of a primitive type. With secondary rules, one can have a legal system. Hart views the rules of recognition as introducing, in embryonic form, the idea of a legal system: the rules are not just a discrete unconnected set but are, in a simple way, unified. (CL, 95) Consider what Hart says about rules of authoritative determination:

Again these rules, like the other secondary rules, define a group of important legal concepts: in this case the concepts of judge or court, jurisdiction and judgment. (CL, 97)

Contrast these comments with Barden and Murphy’s account of the state-function:

Legislation introduces sovereign and subject, legislative authority and power, and so there emerges within the social order a new element: the state or state-function. (LJC, 178)

Secondary rules are rules about rules: they govern how rules are made, changed, identified as rules of the system and enforced. With the idea that rules govern rules, there comes into being a disembodied entity, known as the state. The legal subject is no longer the only agent operating within a realm of practices that are taken to define obligations. There are two new agents: the authoritative law-giver and the authoritative law-interpreter. What the authoritative law-giver says now has salience not only for the legal subject but also for the authoritative law-interpreter. The law-interpreter is, in principle at any rate, just as bound by the stipulations of the authoritative law-giver. The law-enforcer’s job is to give effect to what the law-giver has determined. Both the legal subject and the law-interpreter need to know what the laws are. This signals the arrival of the autonomy of law: the content of laws now has an existence independent of community practice, opening up a standing possibility for conflict between what the law requires and what the community thinks to be just.

It is unhelpful to question whether it is the state that creates the secondary rules or the secondary rules that create the state. What we can say is that the state is constituted by, or consists of, secondary rules. As with custom, Hart and Barden and Murphy have similar things to say about state law. The significant difference, however, between Hart’s account and that of Barden and Murphy concerns the explanatory emphasis to be placed on the secondary rules of state law.

IV. Comparison of the two concepts of law

 

IV.1 The advantages of Barden and Murphy’s concept of law

Barden and Murphy’s approach foregrounds an account of law’s purpose. The living law is presented not as a data set but as an endeavour. The living law is simply those set of practices that emerge when a people try to live together in community, and that come to be seen as binding. These practices are, in general, oriented towards justice but may, in any of their particulars, be unjust. However, their whole purpose is to facilitate people in living together. This enriches our understanding of all law, including state law. We can view the customary rules of recognition that underpin the coherence of state law as also serving the general purpose of helping people to live together in community.

In contrast, Hart’s view of law’s purpose is more difficult to ascertain. Finnis suggests that Hart considers that the purpose of law is to provide rules for the guidance of officials and citizens and that the purpose of a legal system is to remedy the defects of a pre-legal regime consisting solely of primary rules.[2] Finnis also characterises Hart as saying that the law must have a minimum content of natural law in order to ensure the survival of society and to give its members practical reason for compliance with the law. However, this relates solely to the purposes of particular laws, rather than the overall purpose of law. This is underscored by the manner in which Hart treats the minimum content almost as an afterthought, a modest concession to natural law theory rather than something elucidating the core nature of law. Gardner suggests that Hart’s account of law is non-purposive, in the sense that it is is not law’s purpose that distinguishes it from other normative systems. Nevertheless, Gardner (perhaps endorsing Hart) appears to view guidance as a good candidate for the purpose of law.[3] Hart does offer an account of the purpose of secondary rules. As noted above, these are portrayed as coming into existence in order to remedy the defects inherent in a community governed by customary rules. Whether this ever happened in the chronological way suggested by Hart does not really matter: the account still works as an explanation of the purpose of secondary rules. However, this does not amount to an account of the purpose of law itself. If secondary rules emerge to resolve defects in a primitive system of primary rules, it must be the case that the primitive system was not adequately performing its function: this raises the question of the function of law. Insofar as Hart attempts to answer this question, it is that law’s purpose is to guide behaviour. But this is a very thin account of law’s purpose. Why should law seek to guide behaviour? What purpose is achieved by guidance? Barden and Murphy’s account of the living law offers an answer to this question, an answer that is consistent with Hart’s account of law: the purpose of law is to allow people to live together in community – this is why it seeks to guide.

Ultimately, Barden and Murphy’s more purposive approach provides a deeper understanding of law. Where Hart was prepared to observe merely that “Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great” (CL, 86), Barden and Murphy offer an account of why the general demand for conformity is insistent. They identify Hart’s social rules (their living law) as an attempt by the community to live together and to live together justly. In this comparison, I am reminded of Fuller’s criticism of Hart for treating law as a social fact, a mere datum projecting itself into human existence rather than a purposive endeavour.[4] Fuller made this criticism in an effort to show how his desiderata of the rule of law (mostly relating to the secondary rule issues of promulgation, application and enforcement) were part of the concept of law. It seems to me that, if we place Barden and Murphy alongside Hart, they are making the same complaint but along a different vector. Hart has noticed the living law but, treating it as a datum of human experience rather than a purposive endeavour, he has misunderstood its significance. He has treated it as a primitive fore-runner of the core case of a legal system rather than as something that has ongoing relevance and helps to explicate the purpose of law as a whole. In doing so, he has not merely misunderstood the living law, but has also failed to identify a basic purpose for the municipal legal system.

 

IV.2 The disadvantages of Barden and Murphy’s concept of law

The disadvantages of Barden and Murphy’s account in a way mirror the disadvantages of Hart’s account. By giving descriptive priority to the living law, they have failed to pay enough attention to state law despite the fact that they accept that such state law is prevalent. I can identify only one point at which Barden and Murphy give detailed consideration to a secondary rule. They comment that “all legislation must have some content requiring that, in specified circumstances, something specific should be done, or that certain situations should be jurally understood in a specified way.” (LJC, 185)  This identifies a crucial feature of state law, namely that disputes are to be resolved by reference to legally stipulated norms and not by (direct) reference to the community’s evolving sense of justice. It is in this way that state law may require a resolution that offends the living law.

As noted above, the emergence of secondary rules marks the emergence of state agents: the authoritative law-giver and the authoritative law-interpreter. Thereby emerges a concept of law’s autonomy, with a need to ascertain what the law means and what are the implications of the law for conscientious citizens and officials. This situation is considerably more complex than that which pertains in a system of purely living law. In a community governed by living law, the only difficulty was posed by the potential divergence of the personal sense of justice and the community’s sense of justice. Given the need for a high level of consensus for the living law to emerge, such divergence would be unlikely although of course possible. However, in a community governed by both living law and state law, there are far more questions. Not only can there be divergence between the personal and the communal sense of justice, either (or both) of those could itself diverge from the law’s sense of justice. The law, although it can be quickly changed, cannot be seamlessly updated to respond to situations that have already occurred. This raises all sorts of questions about the obligations that attach to the legal subject: must the legal subject act in accordance with the law, the community’s sense of justice, or her own sense of justice? The questions for the legal agents are even more difficult. If the autonomy of law is to mean anything, it surely must mean that law-interpreters must apply the law. Accordingly, even if the legal subject can disobey the unjust law, is the law-interpreter at large to disapply it? This requires us to draw a series of distinctions between law and the community’s sense of justice and, in turn, between different people’s obligations in respect of the law. In my view, Barden and Murphy fail to focus on these questions because they fail to focus sufficiently on state law, the relevance of secondary rules and the autonomy of law.

This can be illustrated by reference to a story that Barden and Murphy relate to illustrate their account of law’s authority. Their analysis of authority is complicated and lies beyond the scope of the current paper. For present purposes, I relate Barden and Murphy’s account of the story not to provide answers to the questions about law’s authority, but to draw attention to the questions about law’s authority that Barden and Murphy do not pose. Barden and Murphy relate from Irish Brehon law the story of Cormac Mac Airt’s judgment on trespassing sheep. A woman’s sheep had broken into the queen’s garden and eaten the leaves off the plants. The High King, Mac Con, had ruled that the woman’s sheep be forfeit. Cormac pointed out that the judgment should have been one shearing for another: the queen had lost one season’s leaves; the woman should lose one season’s fleeces. When Mac Con heard of this judgment, he immediately realised that he was guilty of injustice and handed over the kingship of Tara to Cormac. (LJC, 234-235) Discussing this story, Barden and Murphy note that there are a number of material facts and jural facts. The material facts are that the sheep broke into the garden and ate the leaves. The jural facts are that the woman owned the sheep, the queen owned the garden (and leaves); the woman was responsible for the sheep; the sheep ought not to have broken into the garden. It is also settled that the High King is the person who should adjudicate.

Barden and Murphy place heavy emphasis on the fact that Mac Con, on hearing of and agreeing with Cormac’s judgment, hands over the kingship. This, say Barden and Murphy, illustrates “implicitly yet clearly … an important jurisprudential notion of the relationship between the just judgment and the authority of the judge.” But this is ambiguous. Mac Con agreed that he should not be a judge, but there is no suggestion that his authority was undermined prior to his handing over the kingship. Nor are we told whether Cormac’s judgment was considered authoritative prior to his assuming the kingship. If the judgment that the woman hand over the sheep stood, the most that the story establishes is that just judgment is a desirable, but not necessary, characteristic in an authority. If the judgment did not stand, it follows that the judgment must be correct in order to be authoritative. Whatever the answer, this is the question that needs to be posed in order to start to unpack the issue of law’s authority in the context of state law. For present purposes, it suffices to note that Barden and Murphy appear to have missed a whole set of questions that would arise in the context of state law, a legal system of secondary rules, and law’s autonomy. In such a situation, it is not simply a question of reaching the just judgment, but a question of identifying the correct, legal judgment. This may not be just. The role of the High King judge was not simply to identify what was just, but also to identify what was the law. Even if there were no law on the point beforehand, the High King judge’s determination would have made the law and should (presumptively at least) be enforced even if later shown to be wrong. That Barden and Murphy fail to address these questions suggests that the lens of the living law may have obscured as much about state law as it revealed.

 

IV.3     Synthesis

Both Hart and Barden and Murphy recognise state law and the living law, although their terminology slightly differs. The difference lies in their choice of perspective. Hart chooses to view all law through the lens of state law. Barden and Murphy choose to view all law through the lens of the living law. As a corrective to the perspective dominant in jurisprudence, Barden and Murphy’s contribution is welcome. It provides a richer, purposive account of the nature of law. However, both accounts suffer from the same defect. For Hart, the lens of state law became an unwarranted focus on state law at the expense of the living law. For Barden and Murphy, the lens of the living law became an unwarranted focus on the living law, at the expense of state law. The appropriate response is to take the two approaches together. The perspectives offered by both Hart and Barden and Murphy then provide us with a richer and deeper understanding of both law and the modern legal system.

 



[1] J Porter, “Custom, Ordinance and Natural Right in Gratian’s Decretum” in A Perrau-Saussine and JB Murphy (eds), The Nature of Customary Law: Legal, Historical and Philosophical Perspectives (Cambridge, 2007) 79, at 100.

[2] John Finnis, Natural Law and Natural Rights (Clarendon Press, 1980), at 7.

[3] John Gardner, “Laws Aims in Law’s Empire” in Scott Hershowitz ed, Exploring Law’s Empire: the Jurisprudence of Ronald Dworkin (Oxford, 2006) 207, at 207-9.

[4] Lon L Fuller, The Morality of Law (2nd ed, Yale University Press, 1969), at 95-151.

 

 

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.

On Law and Justice in Community

 

 

I would especially like to thank Ágúst Þór Árnason of the University of Akureyri and his team for their tireless work and leadership. I hope that our faculties will continue to cooperate for the strengthening of academic scholarship in Iceland and in the international arena.

The lectures today have provided a wide variety of insights into the original thinking manifested in Professors Barden‘s and Murphy‘s work. We have discussed the concept of law in the Icelandic Commonwealth, the place of law in community in legal theory and law, justice and the trading order. An argument has been made for the legimitate authority of the living law and the value of theory for adjudication as well as a description of law as saga. It has indeed been intellectually engaging and refreshing to hear the different influences Garrett´s and Timothy´s book provide on the learned participants in today’s festivities.

The debate on the concept of law is on-going. Who knows, perhaps Law and Justice in Community will prove to be a seminal event in the history of legal theory!