Tag Archives: justice

Protecting Sacred Sites Is a Matter of Justice. Philosophical Remarks for Our Research Group

Any research group devoted to “sacred sites” presupposes, among other things, the recognition of sacredness, holiness, sanctity, inviolability, et similia, i.e., the logical and dialogical admissibility of spiritual and/or religious value, which is one among the many forms that value can have. Think, say, of ethical value (e.g., “war is wrong”), aesthetic value (e.g., “war is horrible”), existential value (e.g., “war dehumanises its victims”), sentimental value (e.g., “this watch is a memento of my son, fallen on the battlefield”), ecological value (e.g., “we must prevent a radioactive catastrophe, which would render this region barren for millennia”), biological value (e.g., “prolonged exposure to radioactivity causes terrible tumours”), etc. Economic value is one of them, e.g., “it is time to invest in the shares of arms manufacturers amid surging demand for new anti-tank equipment in Eastern Europe”. (At the time of writing, Russian armed forces are in the process of attacking Ukraine.)

Nevertheless, under today’s prevailing socio-cultural conditions, economic value tends to be the only type of value that is publicly recognised, institutionally endorsed and forcefully promoted on an almost daily basis, as signalled by the all-pervasive notions of: “growth” qua ultimate end of administrative agency at its highest levels; “net worth” as the defining key-feature of each person, even on some dating websites; “success” and “loss” as something to be measured by and within “the market”; “usefulness” as a matter of either “employability” or “profitability”; “happiness” as reflected in the disposable income by which one can buy the newest technological gadgets or the most applauded Veblen goods of the day (e.g., Russian oligarchs’ mega-yachts and Anglo-American billionaires’ space-rocket trips). I could cite countless examples and manifestations of this phenomenon, which is certainly a major feature of “Western” civilisation at large, in the sense of ‘liberal’ or ‘capitalist’ (cynicism, monasticism, socialism, anarchism and communism are also “Western” creations; hence the need for my clarification concerning “Western”).

Equally, I could cite several instances of awareness and criticism of this axiological monism. To be concise, I shall mention only one, i.e., the Catholic British humourist G.K. Chesterton, who quipped on this point:

In all normal civilisations the trader existed and must exist. But in all normal civilisations the trader was the exception; certainly, he was never the rule; and most certainly he was never the ruler. The predominance which he has gained in the modern world is the cause of all the disasters of the modern world.” (“Reflections on a Rotten Apple.” In The Well and the Shallows, 163–170. San Francisco: Ignatius Press, 2006/1935, 168).

The debates and the discussions that I have witnessed as a participant in our pan-Arctic research group on explicitly stated “sacred sites” are a token of such a line of criticism, as well as a further exemplification and manifestation of this modern socio-cultural “predominance”, as Chesterton would dub it. That is, our debates and discussions have invariably revealed the unbalanced pre-eminence of economic value over other values—religious and/or spiritual one included, if not in primis. As a matter of fact, the “sacred sites” at issue in our group’s research have been repeatedly described as being in danger because of activities such as mining, tourism, salmon farming, railroad construction, hydroelectric power production, and the like. Without a single exception, the threat to these sacred sites has emerged in each and every case as the offshoot of some for-profit endeavour guided by the “money-value sequence” that contemporary life-value onto-axiology (LVOA) identifies and juxtaposes to the “life-value sequence” (for a thorough exposition and explanation of LVOA, see John McMurtry (ed.), Philosophy and World Problems, Paris & Oxford: EOLSS/UNESCO, 2011).

A money-value sequence is an economic transaction, or set thereof, whereby pecuniary value is invested so as to generate returns of the same kind. All of this being done whether or while other domains of value are also affected and/or depleted in the processes of surveying, extraction, transformation, transportation, consumption and/or disposal that are required for the eventual maximisation of the initial pecuniary—i.e., money-based and money-measured—investment. Unless there occur controlling recognitions, considerations and impositions of values that are other than the economic one (e.g., human rights and public health), then these transactions are allowed to go on unabated and unimpeded, if not even facilitated and promoted, because they are believed to be good as well as just. (LVOA takes very good care of providing the fundamental criteria allowing us to distinguish between ‘good’ and ‘bad’; hence, I refer the reader to it and, as cited, to McMurtry’s work for UNESCO.)

As far as justice is concerned, this sort of positive belief comes about because, basically, it is generally presumed that if someone has something to sell, and someone else has something to buy, and the two of them can agree on a price to be paid for this mutual exchange or commutation, then they should go ahead with their plans and do it. Why not? This intuitive logic is at the very core of the contractual model of human relations that is presupposed by our socio-economic order, much of its constitutional-legal architecture, the social sciences (especially economics), and even our culture at large. Once again, I could mention countless examples and manifestations of this contractual approach to human affairs, as well as several instances of criticism of the same. However, for brevity’s sake, I shall merely refer to an older entry in Nordicum-Mediterraneum.

This entry is the 2016 reasoned synopsis of Wirtschaftsethik, or Economic Ethics, a book penned in the 1990s by the Swiss philosopher and theologian Arthur Fridolin Utz. Utz was one of the few fin-de-siècle Dominican commentators who noted explicitly how that same “Western” civilisation that glorifies “the trader”, as Chesterton would write, does also tend and try incessantly to reduce all human relations to contractual relations. Put differently, Utz highlighted how the Western liberal-capitalist mindset conceives of all justice as commutative justice, which is that one type of particular justice applicable to exchanges between a person and another (e.g., Peter and Paul), or an economic entity and another (e.g., Eimskip and the Coca-Cola corporation). In this transactional way, as Roman law and the medieval Canonists had long enshrined in our culture, each person is rendered that which is due to him/her (“suum cuique tribuere”, as per Justinian’s Institutiones 1.1.3–4).

However, as the medieval Canonists and Utz were well aware of, justice possesses more facets than the commutative one alone. And it is to such facets that I devote my remaining philosophical remarks, for which I make use of a very old work of art. Should you ever visit the beautiful Public Palace of Siena, in Italy, you will find therein Ambrogio Lorenzetti’s (1290–1348) fresco entitled “The Allegory of Good Government” (or “Governance”; 1338–1339; fig.1). Much more concisely than any written text, Lorenzetti’s fresco captures visually the diverse facets of justice.

FIG.1 Ambrogio Lorenzetti, Allegoria del buon governo


To begin with, the fresco depicts justice (“iustitia”) in the shape of an enthroned mighty woman (left third, top two-thirds), who is crowned and inspired by an angelic, suitably winged, representation of Divine Wisdom. Leaving aside the thorny issue of whether and how we can tap into such a blessed wisdom, the depiction of such a ‘special relationship’ means that justice ought to be the ruler in a community wishing to be good or, to cast the same idea in other words, rulers are legitimate if and only if they are just. Should they be unjust, then the citizens would have good reasons to question the same rulers’ continued staying in power. (It may be worth recalling the age-old theme of “tyrannicide”, which the Scholastic political thinkers inspiring Lorenzetti’s artistry were debating back then as a matter of rational and natural jurisprudence, not of confessional belief.).

The enthroned female personification of justice is general justice (aka “legal” or “social”, depending on specific authors; Utz himself opted for “social”). General justice is the justice that each citizen owes to the community at large, i.e., the legitimate institutions, both tangible and intangible, upon which the community relies for its own existence, functioning and self-maintenance. For illustration’s sake, we may list: accepting the rule of law and its attendant laws; speaking the common tongue in a way that is consistent with the prevailing rules of grammar; a certain level of personal probity (e.g., being honest and trustworthy) and/or moral integrity (e.g., aiming at virtuous conduct rather than vicious behaviour); a commitment to the spirit of the laws and not just their letter; keeping one’s own petty interests separate from the general law-making processes and aims; the willingness to defend the country if attacked; the availability of each citizen to offer assistance in case of natural disasters; respecting other people’s spiritual beliefs; and accepting a modicum of taxation qua precondition for associated living. (As Justice Oliver Wendell Holmes Jr. famously stated in a 1927 dissenting opinion: “Taxes are what we pay for civilized society”.)

Out of general justice, as visible in the fresco, emanate two distinct forms of particular justice. These being the smaller angelic personifications set under the inscriptions “distributiva” and “comutativa”, and standing on the dishes of the scale held by general justice (scales being a traditional Western symbol of fairness, impartiality and/or equity). The former angelic personification is busy crowning a person and, yes, beheading another. It represents the justice that is owed by the community at large to each citizen, depending on how the citizen has behaved, i.e., such as deserving positive recognition (e.g., a new professional title, a public commendation, a tax exemption) or punitive retribution (e.g., a fine, a suspension, incarceration). The latter angelic personification is that form of particular justice that economists and business leaders have generally been assuming, as it was intimated, to be the only extant form of justice, i.e., uncoerced contractual agreement between two parties. It is the justice that one person owes to another. (In the fresco, incidentally, commutative justice is depicted as two merchants receiving fair measuring tools, by means of which they are to conduct fair businesses—or so are they expected and encouraged to do. If they do not, then the other ‘angelic’ particular justice may come into play with its sharp sword…)

Another message is implied yet blatant, as per the personifications’ mutual proportions; general justice being much bigger than either particular justice. Essentially, general justice takes priority over particular justice, which emanates from, and depends upon, the former, whether as distributive or commutative. Particular justice, in other words, cannot be given if general justice is absent. For instance, if the laws at play are skewed, biased or unfair, then the punishments and rewards will be distributed to the wrong recipients and/or in the wrong way, e.g., the crooked rich who can afford shrewd lawyers can go scot-free, while the innocent destitute are wrongfully imprisoned. Similarly, general justice failing or being absent, the market exchanges will not be truly equitable, genuinely consensual and/or effectively uncoerced; e.g., a starving parent will accept any job as long as it can help him/her to put bread on his/her table for him/her and his/her starving family. (Medieval thinkers, who knew one thing or two about hunger and famines, duly developed the doctrine of the “just price”, which we cannot discuss here but only mention.)

The reasons for the failure or absence of general justice may be found elsewhere in the fresco. Justice, in fact, appears once more in Lorenzetti’s allegory: at the right end of it, to be precise, and on the same vertical level as general justice. Once again, “iustitia” is depicted as a female personification and, this time, it is a cardinal virtue alongside five others: peace, fortitude, prudence, magnanimity and temperance. These being rather nice-to-have traits of character that any and every half-decent citizen ought to cultivate in his/her life, no matter how imperfectly and/or haphazardly. A good society is a society where people strive to be amicable, dependable, considerate, forgiving, clearheaded and fair. They may not always succeed, for we are all imperfect, but at least they should try to succeed, to some serious extent. (Medieval Christianity knew very well that we are all capable of sin, if and when we are tempted, whether we are kings or peasants; but it was also generally believed that we would normally try to resist temptation and, not unfrequently, succeed in this attempt. We may, must and can be good in our lives, more often than not, if we will it in the first place.)

Justice, then, is a personal virtue too; i.e., it is an important trait of character. In the fresco, justice and her sister-virtues are sitting beside a male personification of the ruling institutions of the community (the only tall, big and white-bearded character in the allegory). The meaning of the compositional order being that these virtues ought to be possessed, or at least be actively cultivated, by all those persons who are entrusted with the governing of the polity. Without personal virtues, in fact, no institutional arrangement is safe. Bad individuals can betray good principles, corrupt good laws, ruin well-designed administrations, and pervert sensible institutions. The body politic is bound to be as good as the people assigned to its care.

To sum up, we can then state that there are four “justices”:

(1) Justice as a virtue or positive trait of character (i.e., ultimately intra-personal);

(2) Commutative justice as fair trade (i.e., inter-personal par excellence);

(3) Distributive justice qua receiving deserved praise and/or penalties under the laws of the community (i.e., directed from society towards each person); and

(4) General justice, which (2) and (3) presuppose, i.e., the civic loyalty that each citizen must have vis-à-vis his/her community, its public institutions, and the common good that they are mandated to pursue. (As was stated, this prior and pivotal justice is directed from each person towards the whole social body.)

Acknowledging the presence and significance of the many values whereby the members of our society and its assorted institutions lead their lives is also part of general justice, which ultimately determines the spheres, the entities and the agencies whereby economic commutations can lawfully take place, i.e., in light of these diverse values (e.g., by prohibiting slavery, facilitating surrogate motherhood, banning carcinogenic man-made chemicals and/or permitting prostitution). How each society makes these ultimate determinations is a very complex matter that I cannot tackle here—and that I can resolve nowhere, to be frank, for it is just too complex. Lorenzetti, for his part, thought that Divine Wisdom itself could lend us a hand. (Given the sorry mess that we all seem to be mired in, I pray to God that Lorenzetti’s optimism be warranted…)

Logically, the recognition that something may be sacred and therefore deserving of protection from outright commodification (i.e., reduction to economic value alone) stands, even if a specific individual may not attribute any such value to it. Indeed, it may still stand, logically, even if only a minority of people believe that such a protection ought to be so extended. For example, the specific individual at issue could be an atheist living among religious persons, who do not want to turn churches into more ‘efficient’ granaries and/or ‘profitable’ museums. Or s/he could be a single-minded pragmatic businessman facing a small elite of cultured and vocal persons, who wish to fund ‘costly’ opera and ballet via the tax-funded public purse because of their immense cultural significance and inherent aesthetic exquisiteness. (Sometimes, something and/or someone has got to give, but making changes and sacrifices complicated to achieve means facilitating compromises, moderation and gradualism. Protection is a conservative endeavour, not a revolutionary one, at least prima facie.)

The same realisation and implications stand also when and if there may be some or even many individuals who are willing to pay a very hefty price, so as to have access to this protected ‘something’ and/or turn it ipso facto into something efficient and/or profitable. Under this respect, we should then notice that, inside our prosaic price-tagging market logic whereby scarcity pushes up prices, the ‘things’ that we shelter from an otherwise almost-universal condition of thorough commodification are bound to become, potentially, the most profitable of all. Like rhinoceros’ horns, uncontaminated woodlands, non-processed meals, habitable sites safe from the unfolding climate crisis and Iceland’s pristine glaciers, their being harder-and-harder to get by works actually against their preservation. Protecting a sacred site, in a global order infused with liberal or capitalist institutions, means in fact turning the site into a totally new and untapped ‘opportunity’, which is yet to be squeezed dry of all the profits that it could generate, whether for a short period of time or for a longer one. (Let’s not forget that the history of liberalism goes hand-in-hand with the history of conquering ‘new markets’, i.e., non-commodified geo-cultural spaces, including in the originally ‘virgin’ Arctic regions.)

Unless, however, we make the sacred sites so incredibly valuable that they turn out to be “priceless” or “beyond comparison”, i.e., irreducible to economic value alone. Cultural, legal and political means can all be unleashed, and variously combined, so as to obtain such a result, which must then be defended from successive assaults by the money-value forces that are or that will be. (Given human volatility, today’s businessmen may be tomorrow’s conservationists; and vice versa.) Whatever we do, if we wish to protect that which is sacred, we must let it escape from the grasp of the pecuniary market logic.

This is the case because this entire market logic is based on an all-flattening axiological presumption allowing for very different realities, i.e., the so-called “goods” of standard economics (e.g., bread, cigars, assault rifles, plots of rainforest), to be compared with one another and attributed prices according to how much demand they command (needless to say, the more money an economic agent has got, the more demand s/he commands). An impoverished population’s sacred site can thus be transformed into a billionaire’s golf course because the latter commands more demand than the former. As passé as it may sound, value boundaries and axiological hierarchies must be established and defended, lest the ancient sin of simony finds an eerie modern reflection in highway billboards, stock-exchange indexes and YouTube commercials.

Ulrike Müßig – Reason and Fairness

Ulrike Müßig (borne Seif), professor at the University of Passau, is one of the leading legal historians in Europe which an be seen and read in her recent book Reason and Fairness. Throughout Europe, the exercise of justice rests on judicial independence by impartiality. In Reason and Fairness Ulrike Müßig reveals the links of ordinary judicial competences and procedural rationality, together with the complementarity of procedural and substantive justice, as the foundation for the ‘rule of law’ in court constitution, far earlier than the advent of liberal constitutionalism.



  1. Research Issues (pp. 1-11)

Ulrike Müßig’s “Reason and Fairness” deals with the history of judicial competences and especially the functionality of ordinary competences. Judicial competence is rooted in the European idea that law creates order. Thomas Aquinas was the first to forge religious truths into rational arguments. His summa theologiae is said to have laid the foundations for a logos-based Roman Catholicism and the rationale of the medieval canon law. As a result, a legal approach to fairness developed, achieving greater prominence at various turning points in history. However, recent German history has challenged this approach by demonstrating the disjuncture between the letter of the law and its spirit. As such, the “Radbruch Formula”, stating that extremely unjust law is not law, Gustav Radbruch introduced the concept of law being defined by a triad of justice, utility, and certainty.

The monograph covers an extensive time span from medieval canon law to the European Convention on Human Rights (12th -21st  Century), which comprise vastly different judicial positions stemming from their respective legal traditions; yet the theme of judicial justice abounds through the centuries. The medieval canon law’s complementarity of procedural and substantive justness as a legal emanation of the antique suum cuique (to each his own) links back to the Aristotelian demand that equals be treated equally. Today, it states the core element of European procedural laws as well as the initial wording of the Institutes of Justinian: “Justice is the persistent and constant will to give each one his right”.

  1. State of the Arts and Methodological Challenges (pp. 11-27)

Oftentimes, courts are considered mere institutions in a national constitutional structure. Publications based on this understanding are limited to a comparison from an institutional national perspective. The author, however, highlights that in view of European history, since European states and especially their legal systems have not developed autonomously, a transnational comparison is necessary. She therefore asserts an urgent need for “a new comparative understanding of judiciary as constituted power (…).”, necessitating the implementation of a transdisciplinary study on the interface of history, law and legal history. In line with Ludwig Wittgenstein’s notion of language marking the “frontier of its user’s world”; institutions and guarantees must therefor be analysed in abstract manner rather than on the basis of their wording.

  1. Methods (pp. 27-29)

The monograph follows the methodological principle of historic functionality. Thus, institutions and guarantees are not analysed individually but rather compared with respect to conflict situations or concrete problems. This approach is based on the premise that institutions should not be created in isolation, but should serve to provide solutions to concrete problems.


  1. Geographical and Temporal Scope (pp. 30-33)

The subjects of investigation are the three countries of origin (England, France and Germany) of the Romanistic, the Anglo-Saxon and the German legal family, representing the European Union’s different legal systems.

  1. Structure and Sources (pp. 33-37)

First, an outline of the history of the legal systems in England, France and Germany as well as the influence of the Church promotes an understanding of the basis of the European legal system. The presentation of the English and French legal systems then characterizes the contemporary European legal system, which is finally related to the European Council and the Convention on Human Rights.

Part 1: Legal History

  1. Church (pp. 41-66)

The papal monarchy was the first absolute monarchy in the twelfth and thirteenth centuries, providing a considerable impetus in legal development, especially with regard to procedural law. In this respect, the judicial jurisdiction was the focus of the medieval canonists. Thus, a judgment passed in disregard of the jurisdiction of the courts was ineffective. Hence, jurisdiction as a procedural principle was the first procedural rule in which nullity as a legal consequence was expressly provided for by law. Over the course of time, it was extended to all procedural rules. Moreover, medieval canon law was the first to distinguish between procedural and substantive justice complementing one another. Canon law can thus be seen as the forerunner of procedural law. The Pope promoted a centralized development of law and the accompanying unification of substantive law. In this context, emphasis was increasingly placed on learned judges who were endowed with the power of self-decision, laying the groundwork for a centralized jurisdiction.

  1. France (pp. 67-119)

Since the thirteenth century, the French king’s attempts to eliminate estate influence on judicial administration was a constant element in the development of the French judiciary. However, this was opposed by the protective rationale of estate and constitutional formulations, which coincided in the autonomy of the legal judge and the commissioner. During the fifteenth, sixteenth, and seventeenth century and the parliamentary complaints of the eighteenth century, the notion of the juge naturel increasingly confronted the special commissions and the extraordinary courts until it was clarified in the provisions of the organizational statute in 1790. With the constitutionalized reinvention of the royal judicial sovereignty and the reimposition of the monarchical principle in the Charte Constitutionnelle (1814), the juge naturel was guaranteed by the ban of commissions and extraordinary courts. Disregarding the revolutionary abolition of the feudal privileges, these constitutional guarantees remained unchanged until 1848. Republican ideals of equality (“everybody has the right to the same procedure before the same judge in the same trial”) contradicted the estate-based hierarchy of ordinary competences. All the same, the constitutions’ wordings, legitimized by national or popular sovereignty, did not reflect any changes in the meaning of the idea of the natural judge or the legally assigned judge. In 1848, explicit constitutional guarantees of the legally competent judge disappeared in the constitutions. Neither the Second Empire nor the Third, Fourth and Fifth Republic had specific provision for the legal competence of the judge.

  1. England (pp. 120-176)

Granting justice had been the central duty of medieval ruling. The instumentalization of justice and the judicial concentration in the crown were core factors in the early success of centralization within the English monarchy. The crown held major influence on the outcome of trials in the Star Chamber and interfered even more evidently in the extraordinary Court of High Commission. The control of these prerogative courts by means of extraordinary appeals (prerogative writs) channelled common-law opposition. The prerogative courts were criticized for passing arbitrary judgements and for adhering to royal proclamations as their extra-legal basis beyond common law and statute law. Edward Coke, a common-law judge, justified the precedence of common law over the monarchical prerogative by emphasizing the difference between “natural reason” of human beings (including the monarch) and “artificial reason” of common law judges. His argumentation demonstrates that legal professionalization was a vehicle for the independence of courts. This led to the supremacy of law, in which royal power was subject to law, and in turn demands of the abolition of extraordinary courts, which was enforced by Parliament in 1641. In English legal history, the supremacy of law assured the continuing existence of the ordinary jurisdiction through adherence to the law, whereby royal prerogative became exceptional. Other than in the rulings of the Court of Chancery (equity court), the monarch was banned from exercising judicial power and interfering with common law courts. In 1689, the Bill of Rights affirmed the legal bindings of monarchical power by common law, the idea being that the strictness of common law would guarantee material independence of the common law courts. Personal independene of the judges was later assured in the Act of Settlement. After the Glorious Revolution and the overthrow of James II, the concept of parliamentary sovereignity predominantly led to Parliament´s self-conception as the Highest Court of Justice. Hence, Parliament claimed the supreme power of interpretation of laws. Nevertheless, it did not aim to abolish royal prerogative but rather served to mediate between royal prerogative and the subject’s rights guaranteed under common law.

  1. Germany (pp. 177-281)

In contrast to France and England, in Germany imperial power could never establish effective jurisdictional centralization, continuously contending with emerging territorial jurisdictions. This conflict between territories and the empire was decisive in the origins of the German juge naturel. The Peace of Westphalia in 1648 consolidated territorial judicial sovereignty. More and more permanent administrative institutions (like the Privy Council, the Financial Chambers, the Church Council, the Council of War and the manorial court) and a centralized chamber system were introduced, aiming at statal unification. The general state theory of the eighteenth century limited judicial matters to disputes between subjects. In the transition from power dictum criticism to the enlightened absolutist state of statutory law, the sovereign was still the bearer of undivided judicial sovereignty and highest judge, but the supremacy of reason-based normative telos could override his ruling will. So, in the Enlightened Absolutism, a reason-based normative telos emerged. After Napoleon, the goal was to form a new “empire” led by a hereditary monarch who cooperated with the people’s representatives and respected laws. Instead, the great powers, including the “German” states of Austria and Prussia, created the “German Confederation”, following the more traditional, restorative aim to guarantee peace, tranquillity and stability. Under the rule of the “Metternich system” the introduction of constitutions and modernization of their states was prohibited. The 1849 constitution of St. Paul’s Curch changed this political thinking, introducing the idea of a civil society and a liberal state under the rule of law with the guarantee of legally competent judges. The constitution thus laid out a constitutional monarchy with a parliamentary orientation and was therefore particularly progressive. However, the appointed monarch Friedrich Wilhelm IV. was an anticonstitutionalist and prevented the constitution from coming into force. Yet, it served as a role model for the Weimar Constitution and the foundation of the federal republic of Germany. In essence, it guaranteed every individual access to the competent judge and court. The competent judge was at the same time considered to be the just judge. However, the reservation of the law also included the primacy of the legislature over the executive, which made a separation of powers necessary. This was maintained in particular by the independence of the judges. As a reaction to National Socialism, which manipulated the law as well as the courts, internal requirements were imposed on judges and the organisation of the courts. Thus, both the judicial outer and inner sphere is now protected against manipulation in order to reflect and offset Germany’s past.

Part 2: Country Reports: The Contemporary French and British Court System


  1. Core Patterns of Ordinary Judiciary, Representative throughout the European Union (pp. 285-311)

The core factors in the similar development of the EU member states’ constitutions despite their different origins and contexts are recognizable in different constitutional regulations such as the competences and legalities of the courts. The commonalities transcend geopolitical, geographical and temporal boarders. While the “Old” Constitutions, characterized by a pre-twentieth-century liberal tradition, shaped the concept of the legally competent judge as a constitutional guarantee, the Mid-twentieth-century constitutions replaced an authoritarian or imperial rule with a new, liberal-democratic structure and “fundamental rights” which are subject to the courts. These mut again be distinguished from the post-Cold War constitutions of Eastern European Member States. The distinction between these contemporary European constitutions clarifies the diversity of historical differences throughout the Union. Conversely, it demonstrates a pan-European commitment to certain common principles. In order to analyse the contemporary British and French court systems, it is necessary to differentiate between the protective rationale in the court external and internal sphere.

  1. Protective Rationale of Ordinary Competence: the Court External Sphere (pp. 312-379)

The court’s protective rationale views the court as an organizational unit which is functionally ensured by internal and external judicial independence. In Britain, the fundamental understanding of court organization differentiates between the common law courts (e.g. High Court of Justice) with all-encompassing competence and the courts created by statute (e.g. specific County Courts), whose competence is limited and fixed by statutes. In contrast to continental EU constitutional principles, besides not being codified neither the principle of the rule of law nor the sovereignty of Parliament are a reservation to one another. The small senior judiciary and the interrelation with the bar constitute the two core pillars to the independence of every judge. Numerous precedents demonstrate the court’s outstanding personal and functional independence from the government’s wishes and sensitivities. In the absence of a written constitution, there is no guarantee against Parliament’s intrusion into the judiciary as common law primary legislation cannot be challenged in court, while Parliament maintains the right to reverse a judicial decision by legislation. Yet, disengagement of judicial and political power was achieved by the convention of the UK Supreme Court in 2009 as a separation from the House of Lords, as judges had to decide an increasing number of cases with political implications. The Supreme Court now has the power to overrule laws that violate European Union law or the Convention on Human Rights, which previously fell under the House of Lord’s prerogative. However, this power of intervention is only to be exercised in rare cases of general public interest so as not to undermine the sovereignty of democratically legitimised Parliament.

In France, by comparison, the right to a legally competent judge is a consequence of the general principle of equality before the law, without an explicit mention in the constitution. It prohibits the executive and legislative power from establishing a court on an ad hoc basis for a specific legal issue, but does not prevent the creation of a special jurisdiction for legal field with a different subject matter. For the executive the binding character of this unwritten constitutional guarantee is effected by the statutory reservation as expression of the rule of law. The court organization in France is subdivided into the ordinary jurisdiction and administrative jurisdiction. The judicial review of statutes is realized by the Constitutional Council, which is not designed as a supreme court, hierarchically superior to the other courts and without any individual access. As a common European tradition, extraordinary courts derived from executive powers are rejected unless there is a statute for its creation and the executive acts within its margin of discretion.

  1. Protective Rationale of Objective, General Standards: the Court Internal Sphere (pp. 380-417)

In the court’s internal sphere, the guarantee of the legally competent judge contains the protection against an ad hoc staffing of the adjudicating body and against an ad hoc allocation of pending cases to the adjudicating bodies. The staffing and business distribution has to be predictable and pre-determined by objective, general standards. In the United Kingdom, the participating judges are not determined according to general rules, but specificly chosen by senior judges according to the principle of unitary judicial power rather than a subdivision into separate adjudicating bodies. For instance, the splitting of the High Court into three divisions conflicts with the concept of each judge being an adjucating body bestowed with the entire competence of the High Court. The ad hoc character of business distribution serves the effective use of personal subject knowledge and the strengths of individual judges in a certain case. This corresponds with the procedural governance of the judge and his special position of trust in the Enghlish trial. Inner court preliminary fixations would be deemed complicated rather than guarantors of justice.

On the contrary, in the contemporary French judicial system the internal protective content of the legally competent judge is derived from the general principle of equality. Both the adjudicating body and its business plan are precomposed and determined by statute. Thus, ad hoc creation of an adjucating body with judges chosen solely for certain cases is avoided. The composition of the bench is determined one year in advance by the court president upon the recommendation of the general assembly of judges, maintaining certain extent of flexibility in the judges’ application. The business distribution is organized in a rational, objective and precise manner in order to elimate any risk of arbitrary manipulation. In Germany, this basic law is codified in Art. 101 Section 1 Sentence 2 of the constitution. The statute is applied extensively as it is subject to constitutional protection, which is above all influenced by Germany’s unique historical experience. Therefore, in all European states the court’s internal sphere of the principle of the legally comptent judge is violated if inner court decisions are based on arbitrary considerations.


Part 3: The Historic Comparison as Line of Arguments for the European Convention

  1. Legal History ‘in front of Court’ (pp. 421-471)

An analysis of ECHR case law from a legal-historical perspective provides insight to the meaning of a court “established by law” under Art. 6 of the European Convention of Human Rights. As explained in the preamble of the Convention, key common constitutional traditions of the legally competent judge raised as a conflict-orientated protective rationale can be used as interpretive guidelines. This interpretation of the rule of law contributed to the direct access of individuals to court and furthermore led to the binding and compulsory character of ECHR judgments. Being established by “law” in the sense of Art. 6 ECHR requires authorization either by the constitution or by statutory law. Within the context of the ECHR, the term “tribunals” encompasses four characteristics. First, they are set up by virtue of statutory or equivalent law, meaning that the court itself – but also the rules concerning the court and the ruling of the judges – have to be based on law. Secondly, they exercise judicial functions independently under the exclusive legal commitment to adhere to the law, guaranteeing impartiality. Moreover, tribunals have to be subject to appellate jurisdiction and they have to be sovereign institutions for the administration of justice.

Regarding the court’s external sphere, the guarantee to be heard by “a tribunal established by law” prohibits court appointments by discretion of the executive power and bans extraordinary courts. Again, this emphasises the right of a fair trial and judicial impartiality. The traditional understanding of the Convention bodies is that there is no protective rationale in the court’s internal sphere as the aspects of the composition of adjudicating bodies and inner court interferences were assigned to the conventional categories of judicial impartiality and fair trial. This changed in 2000, when the verdict in Buscarini/San Marino established the recognition of the court’s internal sphere under Art. 6 ECHR.

  1. Legal History as Mentor of Present and Future (pp. 472-500)

In 2014, the European Court of Justice (ECJ) decided that EU member states could be signatories to the ECHR (European Convention of Human Rights), but not the European Union as a whole. Together with the difficulties arising due to harmonized and uniform European law, this underlines the need for a convincing interpretation of the common European court traditions. In view of the fact that Union law is rooted in the legal systems of the member states it is not surprising that the common constitutional tradition correspond to the settled case law of the court (ECJ). The interpretation of Art. 6 Section 1 ECHR confirms the common European constitutional tradition of the predominance of the law. It is based on the tradition to avoid arbitrary interferences into the legally competent court and establishing legal competence and legitimacy by law. Whilst there is no common European tradition in respect to the internal protective dimension of Art. 6 ECHR, its necessity is undermined by the historical development of French, German and English law and was explicitly acknowledged by the ECHR (European Court of Human Rights) as a part of the guarantee of ”the tribunal established by law”. The legally competent judge has been of high importance throughout European legal history and remains an important issue which becomes apparent within the ECHR.

Conclusion (pp. 500-533)

Besides the personal and substantial independence of judges especially the functional independence is a core element of the obedience of judges only to the law. Müßig resumes that throughout the book the development can be seen that the judge´s fairness and impartiality has been freed from extra-legal influence. The rise of the self-adjudicating judge in the medieval clerical courts undermines the significance of ordinary competences. The origin in medieval canon law is remarkable due to the fact that in those days common belief was that law derived its obligation from above. It becomes clear that the heart of the European idea of judicial justice is that certainty can be created by law based on logical rationales. Another aspect in the history of ordinary competences and its impact on Europe´s founding stories is the determination to rationalise the administration of justice and to improve access to courts. The French means of acknowledging the right to the natural judge within the pantheon of human rights had an impact on the constitutionalization of the French legal system. Moreover, the struggle between law and prerogative also occurred in the English court system of the seventeenth century. This was when Edward Coke developed the idea of the supremacy of law, leading to the independence of common law courts. Furthermore, the impact of academic intellectualization has been an aspect in the history of ordinary competences. The German triumph of legal professionalism had its peak in the “Begriffsjurisprudenz”, which set the German path for constitutional positivism. Also Nazi manipulation of the courts had a noticeable impact on the German court organization. Recently the European Union is questioned in light of Brexit. The alleged incompatibility of British judicial independence with the answerability to the ECHR and CFR stands at odds with the European consensus on the idea of justice shown in this book. Müßig comes to the conclusion that legal differences (e.g. in procedures or the precise distinction of legal competence) are just local methods of working towards the application of justice. In the end the ordinary judge functions as the symbol of justice.

As the reader can see in this short review, this sophisticated book is a joy for anyone even the least bit interested in Europes’s legal culture and landmarks. It is a fresh overview of the history of law in Europe, dealing with both civil and common law, from Roman times through to its codification – a stimulating, lucid, and imaginative read. The book belongs definitely on your shelf and in your lap.

Asger Sørensen, Capitalism, Alienation and Critique: Studies in Economy and Dialectics (Leiden: Brill, 2019)

The compilation of texts under the title Capitalism, Alienation and Critique: Studies in Economy and Dialectics is Volume one of a trilogy named Dialectics, Deontology and Democracy by Asger Sørensen. The collection is a child of its time: ambivalently modest and dashing when stating its aim, it scratches the surface of vital questions about human prospects impregnated in a global capitalist system and goes in-depth at others in the same class of issues, offering both less and more than what one might expect under certain headings.

The volume includes seven main Chapters divided in two parts (i.e. Economy and Dialectics) and throughout comes back to the initial argument that dialectics, deontology and democracy are “obligatory and necessary ways of relating to social reality” (p.11). Notwithstanding that ‘necessity’ arguments invoke primarily the necessity of immediate syllogistic precision, the exploration is generally done without being oblivious to the need to question various claims on ‘validity’ or to think of (social) science as a political practice. The included name index with bibliography and a separate subject index could well serve students stepping into the world of the Critical Theory of the Frankfurt School, getting inspired by the Hegelian dialectical nuances of Aufhebung, or discovering briefly Durkheim’s sociological conception of value as a way to situate persistent to this day realities, in which liberal politics ‘liberate’ the economic decision-making from moral reasoning.

An Interlude considers the potency of the classical Critical Theory and its current relevance, whereas the work concludes with a Postscript where the critique of political economy is continued from the first part and refreshingly deepened. This last and closing section in fact abounds with solid critique of several layers of capitalist ideology and is perhaps what one might prefer to read precisely in the first part dedicated to Economics, rather than an analysis of George Bataille’s quasi-political and neo-gnostic flow-of-energy concept on general economy in a macro- and micro- perspective.

The second part dedicated to Dialectics has a low start. Its beginning chapter dedicates only few lines to summarizing Aristotle’s contribution to the topic. The point is not that there is no mention of Topika or Analitika protera or that relevant works from Aristotle’s deeply political anthropoeia philosophia are, as if, footnoted (and briefly abstracted in other chapters), but that in the volume’s Introduction, the author summarizes this Chapter as the one where “dialectics is presented in a very classical philosophical way, i.e. taking it all the way from Plato and Aristotle to Hegel and Marx […]” (p.14). A careful reader (or simply a radical one in the sense of going back to the original ancient text in the spirit of the Hegelian Bildung tradition) can arrive to Aristotle’s dialectics either through his logic and the understanding of dialectic premises, or his Metaphysics and the theory of ousia. At least, this is what one would expect from a classical philosophical treatment.

Hence, the reader gets the impression that Aristotle somehow falls under the ‘et al.’ category, which the author uses throughout the entire volume. No matter how playfully or only practically intended, the ‘et al.’ practice is at points inadmissible for arguments’ sake, opening up with no need a dismissive context which inadvertently goes against the author’s own hailing of credible normative frameworks and emancipatory politics. At times the usage is outright obdurate as in “[…] and the discovery of Auschwitz et al. […]” (p.49). In any case, even if the promised classical treatment is missing as a simple consequence of preference or choice of focus, we should be mindful that these themselves might be due to a long tradition of ‘readings’ of Aristotle which sometimes impoverish dizzyingly (Kant), adapt fecundly (Hegel) or appropriate catachrestically (Heidegger) Aristotle’s potent theoretical system and dialectic approach.

In this sense, by being too eager to ‘move on’ in his argumentation at points too quickly, Sørensen risks being not radical enough in the most necessary sense, the political one. Leaving unmined treasures of insights and knots that could have been brought to light is evidenced also when the dynamic of lotteries, gambling halls, internet scams and casinos is put under the umbrella of ‘ideology of hope’ (p.290), without mining one’s own or contextual anthropological assumptions as crucial for giving a consistently critical perspective. The work itself, for instance, is seen as seeking to contribute to the establishment “of credible normative frameworks enabling us to comprehend conceptually, and hopefully also to cope with, the current human predicament, while remaining painfully aware that such an ambition may in fact be overly presumptuous” (p.20). Perhaps claiming an aim only to give it up rhetorically in the same assertion might be attractive to a certain readership, but some might see the claimed scope as complacent and missing any substantial ethico-political challenge. Moreover, even though Sørensen is afraid that Honneth’s critique might be politically impotent “due to its very radicality” (p.12), the reader might wonder what in particular is radical in reducing Critical Theory to social philosophy, given also the well-presented argument on Honneth’s approach in light of the classical critical project (p.67-82).

Imprecision, inaccuracies, and possible contradictions are thus somewhat burdensome, even though the volume is not lacking in solid demonstrations; among else, into how the ever-growing mathematization of political economy is covering up its deeply ideological violence, which leaves out the problem of social (and political) justice. Nonetheless, the claim that an apolitical relation to social reality fails to recognize the value of all intermediary institutions, since it subscribes to the idea of a single individual facing the absolute (p.122), is potentially ideological itself if left unpacked, despite one’s otherwise evident dedication to the critical project. The fact that Durkheim’s or our current intermediary institutions would condition an answer to relevant questions, or aim to eliminate the challenging ethico-political questions altogether, does not cancel or salvage us from the human condition and facing ‘the absolute’ whose historical trajectory, from God to State to Market, is only a potent soil to plough into critically.

The collection is therefore a good reminder of a struggle. A struggle of weakened States embedded in the new practices of imperialism and fragmented by the cynical ideology of global capitalism, which relies on the displaced likelihood that once something happens, it can be quickly renormalized as already having been possible. Examples abound, but think of a recent one: the imposition of a European State onto a non-European one to change its name even in its relation to all other states, against the clear will of the only sovereign (i.e., the people) and through an openly illegal and anti-constitutional process, but such that the first (politically) demarcates the (ethnic) identity of the ‘Other’ by claiming exclusivity over cultural history and even symbols. It is such political violence par excellence that defines our current world, alongside the direct one and the one that counts several millions of people as nothing, for they are neither consumers nor employees. But, if we do not see that all three orders of violence sit in the lap of greed, force and ‘this is mine’ ideology so typical of capitalism, we have understood nothing of its nature.

Hence, if our aim is effective change of the conditions currently guiding people’s lives, the grand problem might not even be how do we system-wise sustain such change and reach those that are most in need of justice and equality. Badiou has already addressed this question elsewhere. Rather, are we aware that an ‘all-inclusive’ proletarization is already underway? Such that we are all (beyond the classical image of proletarians) potentially stripped of our substance? We could, at least potentially, imagine a rich rather than a meagre symbolic life offered to newborns brought to a world of biogenetic manipulation (geared, likely, out of any democratic oversight) and threatening ecological breakdown, coupled exponentially with freedom reconfigured as being able to follow one’s whims: yet lo and behold, our political problem is deeply ethical. It reconfigures for each of us the quintessential question of what do you believe in and hope for, and how do you live in the name of it.

There was a reason why Marx was concerned with raising the awareness of the working class and the need for unity in making a change that will indeed not be in the interest of the few only, and why education is such a potent ‘game-changer’, or why for that matter Hegel was obsessed with Bildung in line with the tradition of the classical Athenian polis, and his view that critique presupposes alienation. Potentially excluded from our very substance, each-of-us a Homo Sacer might be the only proper conceptual start.

On Justice. Equal Rights (jafnrétti), Equal Position (jafnræði) and Equality (jöfnuður)

The first subject of my very first discussions with Mike in September 1973 was “what is philosophy?” That discussion is still going on. Occasionally we discuss other subjects, like today’s subject, which is “what is morality?” What I find fascinating in discussing with Mike is that he concentrates on understanding what I am trying to say and quite often helps me to formulate my owns thoughts better than I have been able to do by myself.  I am certain he will do the same today.

Now if I had all day to discuss with Mike I would turn to the first subject of our discussion, namely what is philosophy. I would start by reminding him that for me philosophy is an attempt to see and to present everything as being part of a totality of ideas which englobe reality. The question then arises about the status and nature of the ideas themselves. This is for me the philosophical question. Mike would then point out that we would need good examples of ideas if our discussion were to take off and bring some fruits. I would say, well, mention an example you would like to discuss. And that is what he did and I am very pleased that Mike should propose the idea of morality as the philosophical topic of this conference in his honor. What is the status and the nature of this idea compared to other basic ideas which make reality intelligible for us?

In this short paper I will try to explain some thoughts concerning what I take to be the basic aspect of morality, namely justice. These thoughts are expressed in the subtitle of my paper where I put Icelandic words in bracket (this paper was originally planned to be in Icelandic). These three words refer to the main aspects of the concept of justice when we apply it to what I believe to be the three basic dimensions of human society, namely the spiritual or cultural, the political or public, and the economic or technical dimension.

The main topic of our discussion today being morality, the question is of course how to define it. When I gave my first lecture on ethics in Icelandic many years ago I fell upon a division that I have used ever since to present morality as the subject matter of ethical studies. Morality is composed of a specific set of values, of virtues, and of rules – of values that make life worth living, of virtues that increase the quality of our relationships, of rules that guard the basic values and guide us to the road of virtues. Then I set out in my Icelandic writings on ethics to explain these values, virtues and rules that together make the internal structure of morality as such, according to my view. In so far as we recognize ourselves as moral beings we attempt to respect the basic values, to develop the virtues and to follow the rules of morality as such. We may fail, and if we recognize our moral failure it is because we have a genuine and common understanding of morality, although it may be very limited and even superficial. Just as we have a certain understanding of language, of economics, of mathematics, of the Earth, and of the forces that may be found in the universe. And this common understanding is expressed in words that refer to ideas concerning some aspects of reality as object of our thoughts.

In the world of history and human society (or simply in the reality of our experience) there is an infinity of moralities, each human group, each family, each individual developing his or her imperfect morality. In daily life people are constantly telling stories about the morality of other people, about their actions, behaviour, their values, their vices and so on. The reason for this is that we are preoccupied with morality all the time – our own and that of others. We want our relationships, our families, our societies to improve – we want values and virtues to flourish in the human world, and our children to be guided by sound moral rules.

Perhaps the main question that common sense people all over the world are facing is simply how the morality of mankind could develop for the benefit of all nations, all human beings, and finally for the good of life itself on Earth. This is the practical question that motivates the philosophical one about the status and nature of morality.

Let us first look at the question about the status of morality. Is morality an independent part of society and thus intelligible by itself or does it depend upon other aspects of reality, say the economic or political domain? In practice, we are always relating morality to the other domains of society, but at the same time I think we would like to see morality function more as an independent structure. In academic circles we have in a similar way theories about morality as being fundamental to human society and other theories that explain it as a result of the play of other forces.

I mention this not in order to enter that debate but to draw attention to some facts concerning the status of morality in reality. We are animals struggling for survival. What distinguishes us most clearly from other animals seems to be the capacity to understand better than they what is harmful to life and how we can in general change our life conditions for the better. This capacity clearly depends upon our ideas of what gives value to our lives and relationships. Truth, justice, love, friendship, freedom, beauty, knowledge, art, science and even sport are among these things that we value. And, of course, worldly values like money, power and fame are of importance along with food and wine, sex and shelter, clothes and cars. Life itself is valuable in so far as it makes it possible for us to take part in the values expressed by the ideas I just enumerated. A life deprived of some of these values may not be worth living at all. And good health may also be a condition for enjoying many of these values. In so far as we understand these values our efforts become intentionally oriented toward improving our life-conditions and especially our relationships where the most important values, like justice, love and freedom are at stake.

This, I take it, is the origin of morality and of ethical thinking. It is directly related to the fact that we realize that our life-conditions and relationships can be improved – that we have to concentrate on developing good relations for the benefit of ourselves and other living beings. Of course, we act like this only in so far as it is in our power to do so. Because we also realize that we are not the inventors of life and that life is disappearing all the time, death being what every living being has to face sooner or later.

So the practical moral question is simply this: What can we do to improve life and our life-conditions in the light of what we understand as the basic values, virtues, and rules at stake in our relationships? The theoretical moral question is simply: What are these basic values, virtues and rules that we take to be essential for the improvement of our lives and life-conditions?

The practical moral question is always asked within a specific context where there are other values, virtues and rules than the moral ones. There may be technical, scientific, aesthetic, even religious, political, and economic values, virtues and rules involved that we cannot overlook. Our moral thinking never develops in a social or natural vacuum. All these other values, virtues and rules are also important in life; and without them it would not even make sense to talk about moral values, virtues and rules.

Now the question must be asked – and that is Mike’s question today – how morality stands in relation to all the other value domains of our reality. I take the idea of justice to be the best guide to deal with this question. In all our possible relationships – be they economic, political, educational or whatever – justice is the most important value.

What does this mean? For me the meaning of justice is to be explained in two interconnected ways. First, justice means that whatever relationship we are developing among ourselves or with other beings, that relationship should be for the benefit of all parties involved. Second, justice means that everybody is to get what he or she deserves. In both cases what is required is respect for the beings we are relating to and for the beings we are ourselves.

In practice, we concentrate on the second aspect of justice, namely that people get what they deserve, because we take it for granted that the relationship itself is in the interest of all parties. It is usually when one or many of those involved do not respect the interests of the others that the question of justice arises. But – as Plato rightly pointed out – justice is not only about the decisions and behaviour of individuals, but about the harmony of the various forces that are at work in our souls and societies. His powerful theory of justice is precisely about these forces and how they must work together in harmony if we are to succeed in our search for the good life. Corruption and wrongdoings happen when these different forces are not kept within their natural boundaries, but take on forms that are destructive of our relationships and harmful to our life-conditions.

What are these forces? And how can they be kept within their limits? Now you are all familiar with Plato’s theory. The soul is composed of a rational part, a feeling or emotional part, and the appetitive part. In a similar way society is also made of three parts: the ruling class that makes the law, the protective class that executes and defends the laws, and the economic class that provides the material necessities of life. In these three dimensions of the soul and of society there are different forces – first, the intellectual, spiritual or ideological ones – second, the political, controlling or dominant ones – and third, the economic, physical or technical forces.

These three forces obey different logics or laws that should guide and limit each other. Plato is preoccupied with the soul – not the material conditions of our life. And his main interest was the development of reason that makes us discover truth, justice, beauty and other ideas that make reality understandable for us to a certain extent. Reason should rule in the world.

This means that the intellectual dimension should guide the political dimension. And the political domain should give guidance and limits to the economic and technological forces at work in our societies.  But none of these spheres or domains should introduce its standards or criteria into the others and push out the standards or criteria that belong to the other domains. When that happens corruption is inevitable with all the injustice and wrong-doings that it leads to.

To take an example, if the standard of economic profitability is made the fundamental criteria for decision-making in the political realm, we would soon ruin the public healthcare system as well as the educational system. The juridical system with the police force and the courts is also likely to suffer great damage. And if intellectual achievements and scientific theories are to be evaluated on the basis of the economic profitability, basic research in several fields is likely to disappear. The examples can be multiplied just by looking at what has happened in Icelandic society and the world in general for the last decades.

These examples remind us that the world seems to have developed in exactly the opposite way to what Plato thought it should do. Why has that happened and how are we to change the course of history in the direction of the Platonic idea of justice?

Since I have only a short time to answer these questions I will move directly to what I take to be the central issues. The intellectual and the political domains have been subordinated to the logic of the economic appetite of the human soul. The forces that produce economic and material goods have taken over the world – pushing other forces aside or using them for economic purposes, not for their inherent or proper goals. Politics and science are not fulfilling the role they should perform in order to bring justice into human affairs.

Now all this is familiar to you. The question is how justice and morality can become effective in the world today. And I see Mike’s question and reflections as being an attempt to deal with this issue in philosophical terms. The rest of my paper is a contribution to this attempt by using three Icelandic words to provide a kind of interpretation of the idea of justice as it was introduced by Plato.

My hypothesis is that justice is to be understood differently depending on the three different dimensions of human society and the relationships that are involved in each of these dimension. (Although Plato is the first to explain the basic characteristics of these dimensions, I think he may not have provided the understanding that we need in order to develop them properly. But I will not be concerned here with that scholarly issue.)

More precisely, when our relationships are developing in what I called the intellectual or cultural dimension, justice is the equal respect we should pay to people as thinking beings in so far as they refer to arguments, reasons, laws, and whatever authorities that help us determine the truth or validity of our beliefs in general. This is what we call in Icelandic “jafnrétti” – equality as beings with a soul capable of discovering the truth and who are all in the same position in respect to the law, God or whatever higher authorities.

When our relationship is developing in what I called the political dimension, justice is the respect we owe to people as having equal power in decision-making concerning our common good. This is what we call “jafnræði” in Icelandic – equality as members of the same community and having in that respect the same position with regard to our common interests or common good.

When our relationship is developing in what I called the economic dimension, justice is the respect we owe to people as living beings with basic needs, desires and capacities. This is what we call “jöfnuður” in Icelandic – equality as living beings depending upon other living beings for assisting us in meeting our needs, satisfying our desires, and developing our capacities as human beings.

Let me illustrate these different logics of justice by taking examples of three institutions: The university, the city, and the family.

In the university “jafnrétti” (or “equal rights”) is the basic meaning of justice. It means that everybody is to be respected as a being capable of knowledge and understanding and has an equal right to express him- or herself concerning the ideas or the arguments at stake. Teachers and students are equals in that respect. But the academic community is also a hierarchical society: Full professors, associate professors, assistant professors, doctoral students, masters students, and undergraduate students indicate a society full of “ójafnræði” or “unequal position” and “ójöfnuður” or “unequal access” to the goods of life.

In the city “jafnræði” or “equal position” is the basic meaning of justice. It means that we are all as equal citizens concerning the city as our common good enabling us to organize our lives together. But that does not imply that we all have “equal right” to take part in the discussion as we do in academic circles where we are seeking understanding and truth. A political debate is not an academic discussion. One of the greatest weaknesses of our communities is that we have not been able to organize political debates in a way that is really democratic as we do in the academia. And although the city provides “equal access” to certain goods of life, like the road system and schools, the city as a decision-making body is not concerned with “jöfnuður” or “equal access”, but with “jafnræði” or “equal position” of its citizens.

In the family, by contrast, “jöfnuður” or “equal access” is the basic meaning of justice. It means that all family members should be assisted in developing their own life and thus getting the goods they need for their survival and growth. But families are not essentially preoccupied with  “jafnrétti” (“equal rights”) or “jafnræði” (“equal position”). They concentrate on providing shelter for us as living beings and are promoting the individual life as the ultimate value.

Now the main lesson that is to be drawn from this analysis is that justice requires different standards and criteria depending on the context within which our relationship is being developed. And this means that we need to recognize and develop different types of discussions or debates when we are dealing with moral issues within the various situations of our relations. That is why ethical studies and ethical teaching are of fundamental importance, if we are to improve our morality and fight against injustice – that is to say against ójafnrétti, ójafnræði and ójöfnuður – that is to be found in all communities. The task is to identify in the light of the different meanings of justice, the various moral issues or problems we may be facing.

To take again the same examples, in the academia “unequal position”, “ójafnræði”, of the people involved may in fact influence the discussion; and “unequal access” to the goods of life may also in several ways harm the academic community. In the city, the “equal right” to express arguments or what one takes to be true is to be respected in so far as understanding and knowledge of the issues that are debated in the political sphere is needed. And the main issues that are debated do in fact concern “equal or unequal access” to the goods of life that we share in our community. But that does not change the fact that “jafnræði”, the “equal position” of the citizens, is to be respected if we are going to make “just decisions”, i.e. decisions which we take together in matters that concern the public good. In the family, although “equal access” to the goods of life is fundamental, “equal right” and “equal position” are also to be taken into account if the family is to develop as the original moral institution of our relationships.

I would like to end this paper with an hypothesis on why human society has not developed in the way Plato thought it should do to enhance justice, i.e. a proper harmony between the dimensions and forces that are at play in our communities. The hypothesis is that justice has been more or less identified with what I have called “equal access” to what they need to live. This implies that life itself has been emphasized as the ultimate value since all other goods are seen as enriching our individual lives.  This also implies that we look at family relations as basic to all other communities or societies. We may even dream of the whole community – or even all mankind – as being a sort of one family.

I believe this is a serious mistake that has to be rectified. The family has always been basically an economic unity providing the goods of life to its members as individual living beings. Business companies and political parties – these two prominent institutions of modern societies – have in fact been formed as extensions of familial relationships. And today there are close ties worldwide between the business sector and the political parties. In contrast, schools, courts, several NGO or associations who have been created in order to defend some public goods, are not conceived on this familial model. And these institutions created for the public good do usually not have any ties with the political parties, which do usually not show any interest in these institutions. (I know this from decades of experience!)

In my view something wrong is going on in our societies. The question is how we, who are engaged by public authorities to do philosophy, can provide some assistance to the intellectual, political and economic revolution that should be underway. I am convinced that conceptual clarity and conceptual depth is the condition sine qua non for a successful contribution of philosophers to the public debate. I am also convinced that philosophy should concentrate on presenting to the world new versions of the ideas that have been guiding mankind since it started to think. Among them are truth and justice – despite all the lies and wrongdoings we are as humanity guilty of committing.

Perhaps our big mistake is an intellectual one. Philosophers like Hobbes and Hume, Schelling and Nietzsche could be accused of it; and of course several others. But not Hegel nor Sartre. The mistake is to take Life itself as a fundamental value. Life as such has no value in itself except as an experiment for its future development.  For individual beings it may easily become an evil thing they could better be without. Of course, it may matter to go on living, but other things may matter more. Friends for example, as Aristotle told us, and truth and justice are things without which life has become a hell for millions of people and not worth living. Indeed the connection between justice and truth is a key question for discussion. For our late friend, Þorsteinn Gylfason, justice meant fundamentally the access to truth. Perhaps he was right. But we still have to find out.

Helle Prosdam and Thomas Elholm (eds.), Dialogues on Justice: European Perspectives on Law and Humanities (Berlin: de Gruyter, 2012)

Each chapter yields fresh insights into the relationship between law, literature, and justice. It is not possible to deal with each chapter satisfactorily, but it is possible to discuss some of them briefly.


The themes open with Greta Olson’s arresting analysis of the deficiencies with the manner in which law and literature is being pursued. The argument is a reprint of the article to be found in the 2010 volume of Law and Literature, but includes a post-script wherein Olson notes further developments on her thinking since the original article was published.  


Mattias Kumm’s chapter on thick constitutional patriotism includes a call for a conceptualization of European history in a manner that provides an exegesis about the roots of European political development. It would focus on human rights, democracy, and the rule of law, but understands that such a history is “to a significant extent the history of the fight against these ideals, their hypocritical abuse, or their complacent misunderstanding.” Kumm’s project is a refreshingly ambitious one and, to the author’s credit, he puts forward a template for how such a project might be developed in the field of legal history, with a thematic focus on the time frames between 1789 and 1919, 1919 to 1992, and the post-1992 legal sphere. There is much to be said for such a project, but it is not clear that the disparate national tendencies of the European continent allows such a history to be told convincingly. The temptation to focus solely on those parts of the history which conform to our current values may be insuperable. Kumm falls victim to this difficulty when dealing with the US Declaration of Independence, which he describes as follows:


A further characteristic [of the revolutionary tenets of the French Declaration of the Rights of Man and the Citizen and the US Declaration of Independence] is the absence of both God and religion (or any other perfectionist ideal) as a point of ultimate reference for legal and political life. Many will find it plausible that the ultimate roots of these rights lie in the fact that God has created persons in a certain way, and that rights are instrumental to human flourishing… But, when the authors of the Declaration of Independence declared the foundational principles of Political Liberalism as self-evident, it created the possibility of thinking of Political Liberalism as the focal point of a consensus that, for the purposes of organizing public life, avoided deeper questions of theological foundations and ultimate purpose.


This is an ahistorical treatment of the Declaration of Independence which appeals to the “Supreme Judge of the World”, “divine Providence”, “the Laws of Nature and of Nature’s God” and, in the extract that Kumm directly refers to, man’s “Creator”. This was not a document that avoided deeper questions of ultimate purpose; it repeatedly referred to these questions. Moreover, the problem recurs if we read Kumm’s point in a more restrictive fashion; the US Declaration of Independence, insofar only as it referred to man being created equal, created the possibility for the future expression of political liberalism. This overlooks those elements of the document which do not conform to this reading, and makes the analysis of the document contingent on subsequent developments where it was used in a manner conducive to the development of the ideal of political liberalism.


The French Declaration of the Rights of Man, in contrast, can be read in the manner that Kumm proposes for the US Declaration, and suggests that such a project could enjoy some success. Kumm is to be applauded for his ambitious project, but the treatment of such material promises to be an arduous task.


Sven Erik Larsen’s chapter on the interrelationship between forgiveness and law is a masterly typology of forgiveness which ranges across examples as diverse as the return of Korean NGOs after capture by the Taliban and the removal of Inuit children from Greenland to Denmark. The typology is comprehensive and compelling.


Mia Rendix’s chapter on the return of the Icelandic sagas notes the distinction between the legal and political processes that characterized the relationship between Denmark and Iceland on the issue. Denmark’s perfect claim to legal title was undermined by statements such as Alexander Jóhannesson’s that the sagas were “like flesh of our flesh and blood of our blood”. Rendix’s analysis spans the legal and cultural spheres, and the local and universal art spheres, with commendable results. I disagree with Rendix’s conclusion that the current digitization projects can undercut the national insistence on exclusive rights. It seems to me that such projects will act as a supplement to national initiatives; the educational and cultural significance of an object in physical form should not be underestimated.


The volume as a whole marks a considerable addition to the field of law and literature and should be celebrated as such. The work will appeal to academic and general readers alike.


Federico Sollazzo, Totalitarismo, democrazia, etica pubblica. Scritti di filosofia morale, filosofia politica, etica (Rome: Aracne, 2011)

In the first part, Sollazzo tracks recent evolutions in the theoretical and historical understanding of social and political control of human collectivities, such as: (1) “totalitarianism” (17) in the work of Vaclav Havel and his mentor Jan Patocka; (2) “system” (20) in that by Herbert Marcuse; (3) “terror” (25) in Max Horkheimer’s; (4) “stereotyped reasoning” (28) in Theodor Adorno’s; (5) “rationality deficit” (28) in Juergen Habermas’; (6) “empire” (30) in Michael Hardt’s and Antonio Negri’s (30); (7) and “culture” according to Pier Paolo Pasolini (34). This initial section is followed by an exposition of the philosophical anthropology of three great minds of the 20th century, namely Arnold Gehlen, Helmuth Plessner and Max Scheler. A common theme is retrieved in their thought about human nature and the human condition, that is, the uniqueness of humankind’s inextricable admixture of biological and psychical elements, which allow the human being to be part of nature as well as to transcend it through its “peculiar” (43) intellectual—for the first two authors—and spiritual—for the third—abilities. The ensuing chapter stresses the crucial role played by the species-wide biological and emotional make-up in providing a valid ground for the establishment of credibly universal philosophical anthropology and ethics. Remarkable is the attention paid to the notion of vital “needs” (47) as a stark and straightforward reminder of our common humanity. The field of ethics is further explored in a chapter devoted to communitarianism as a representative reaction to utilitarian individualism, which fails to acknowledge the deeply interpersonal preconditions for any meaningful human existence.


In the second part, Sollazzo explores the issue of totalitarianism with special reference to the seminal work of Hannah Arendt and her ability to perceive the totalitarian threat of numb conformism in modern mass cultures, and not just in the key examples of totalitarian regimes, namely Hitler’s Germany and Stalin’s Soviet Union. This line of analysis is deepened by means of a discussion of the notion of “bio-power” (84) and of different conceptions of totalitarianism beyond Arendt’s one, such as Marcuse’s, Horkeimer’s and Neumann’s. Sollazzo then returns to Arendt’s work and her study of the anonymous, grey “model citizen” (108) of modern societies, who is incapable of challenging the received views of her socio-political community and participates dutifully in whatever life-destructive systemic horror such received views may entail. This study is followed by a reflection on genuine democracy as Alexis de Tocqueville and Arendt would have it, so that model citizens be not as incapable of Socratic critical reflection as previously discussed. Considerations on democracy are furthered by a presentation of Karl Popper’s ideal of democracy as open society and his profound distrust for any “utopian engineering” (135) that may prevent tolerant coexistence of different worldviews in peaceful conversation with one another. Adorno, Norberto Bobbio and Zagrebelsky are then utiklised to criticise Popper’s seemingly wilful blindness to the darker areas of actual democratic communities, such as techno-scientific “chains” (150) to free human agency, dehumanising “mass conformism” (150), economic “commodification” (150) of human relations—including political ones—and “political apathy” (153). Zagrebelsky’s work is also utilised to assess the issues of social justice and human rights in allegedly democratic societies, whose enduring and entrenched inequalities fail regularly large sectors of the population.


The third part of the book opens with a survey of the so-called “rehabilitation of practical reason” in the German-speaking philosophical world of the 1960s and 1970s, especially with reference to Hans-Georg Gadamer and Habermas. The threat to social cohesion and human well-being emerging from pseudo-rational individualism is presented and then addressed in a chapter on leading libertarian thinkers, such as Robert Nozick and Friedrich Hayek. Bobbio and John Rawls are introduced and presented as attempts to rectify from within the liberal tradition the many weaknesses and blind spots of several libertarian stances. Communitarianism is addressed subsequently as an attempt to rectify them too, though this time from without the liberal tradition. Ferdinand Toennies, Charles Taylor and Alasdair MacIntyre are the pivotal references in this context. Amartya Sen is used eventually to propose a tolerant, pluralist form of communitarianism that describes cultural identities as inherently diverse, “always in fieri” (212) and analogous to an ever-shifting mosaic requiring the person’s free consent and critical self-reflection. The theme of a species-wide ground for life-enhancing social and political self-organisation is brought back in a chapter devoted to Hans Jonas and his call for human ethical responsibility vis-à-vis the planetary environment, which human ingenuity and techno-scientific advances are threatening as never before in human history. The final chapter outlines the understanding of human alterity in the works by Emmanuel Lévinas, Paul Ricoeur and Jacques Derrida.


The book is most erudite and shows how well-versed the author is in the works and terminology of the many thinkers that he cites and presents to the reader. Still, after reading the book, it is not clear what the author wished to accomplish with it, apart from charting a number of interesting issues and related reflections by famous thinkers. In short, the book has no clear thesis to offer. Also, the critical assessment of the thinkers tackled in the book varies considerably, thus a few thinkers are duly presented and equally criticised for what Sollazzo argues to be their theoretical weaknesses (e.g. Jonas), whilst others are just outlined and never criticised (e.g. Havel) or timidly rebuked in a few footnotes (e.g. Arendt). By this lack of critical evenness and courage, Sollazzo comes across as sharing claims by some of the thinkers that he refers to (e.g. Arendt’s negative assessment of the modern political emphasis upon human biological necessity) that do not sit well with those of other thinkers that he includes in his book (e.g. Jonas’ call for immediate global ethical responsibility in the face of the modern techno-scientific threat to the continuation of biological life on Earth). Analogously, it is not clear whether some rare yet conspicuously superficial analyses, such as the one that he provides about human rights (159-65), should be ascribed to him or to the thinkers that he makes use of therein. Specifically, as human rights are concerned, they are reduced to the 1948 Declaration of Human Rights, which is claimed to be “universal, modern and Western” (163), as though there had never been thereafter any advancement, such as the actually binding sister covenants on civil and political rights on the one hand, and economic social and cultural rights on the other; or the pronunciations of the related United Nations’ human rights committes. Finally, the book would have benefitted from an analytical index and a bibliography.


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.

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.


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.



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!