SIVA-LIZATION

RULES, PRINCIPLES AND POLICIES – CASE STUDIES

Posted in Uncategorized by drsivalaw on February 27, 2010

When judges decide cases, and sometimes make law thereby, what guides their decisions? In many cases there are clear rules for the judges to follow, but what happens when the rules run out? This is a question that has given legal writers a lot to think about, and one of the major jurisprudential debates of the late twentieth century, the Hart-Dworkin debate, concerned the extent to which a legal system can be regarded as a system of rules and how far account must be taken of other non-rule contributions.

Professor HLA Hart in his book The Concept of Law sought to distinguish obedience to a rule from habitual conduct “as a rule” by saying that a rule is essentially normative rather than predictive. The word “rule”, he said, has at least two meanings: it may be used in a descriptive or predictive sense: “as a rule I go to the cinema on Saturdays”, or in a normative sense: “there is a rule against walking on the grass”. He was concerned only with normative rules, though he recognised that some people might obey normative rules as a matter of habit, without consciously thinking of the rule at all.

The idea of obligation depends on the idea of a rule, Hart said. A victim may “be obliged” to hand over his wallet to a mugger if he fears some unpleasant consequence that is likely to occur if he fails to comply, and the effect of which is not trivial in comparison with the effect of complying. We say he is obliged to comply; such a statement refers to his own beliefs and motives and implies that he actually does comply. If he decides to resist the robbery in spite of the robber’s threat (and perhaps suffers the consequence), we certainly do not say that he was obliged to obey the robber’s demand. On the other hand, to say that a person “has an obligation” not to drive faster than 30 mph in a built-up area says nothing about the likelihood or the seriousness of the consequences that might follow non-compliance, nor about whether he actually complies with the obligation or not.

The identification of a normative rule and a corresponding duty or obligation therefore depends on two things, one external and one internal. First, there must be a general habit of conformity with the rule, and this is a matter of observation. This is not to say that there must be total conformity, but no percentage figure can be set down: Hart himself likened it to asking how many hairs a man can have and still be bald. On the other hand, if the “rule” is widely disregarded, it may not really be a rule at all.

Conformity alone is not enough, however: there is general conformity with the eating of turkey on Christmas Day, but this is a descriptive rather than a normative rule. Hart therefore demands a second element, a “critical reflexive attitude”, in that members of the society share in criticising those who deviate from the rule (which may involve self-criticism in some cases) and perhaps in making some demand for conformity. Typically, the critical reflexive attitude is shown in the way parents encourage their children to conform with the rule, using normative vocabulary involving words such as “must”, “ought” or “should”. For example, the practice that men remove their hats in church is something they “ought to do”, and so can fairly be described as a rule.

The use of language is ambiguous, however, and the position of the detached observer must be considered. A meat-eater may say to a vegetarian “you ought not to eat that sausage” without internally accepting that meat-eating is wrong, but by reference to the rules by which he understands the vegetarian to live. Conversely, the vegetarian may say to his friend “you ought not to eat meat”, putting the proposition forward as a moral philosophy but recognising realistically that it is not a rule. Only when the speaker recognises the existence of a social practice and adopts a critical reflexive attitude towards it can it be said that he internally accepts it as a rule.

The acceptance of a rule and the critical reflexive attitude towards it are not synonymous with approval of the rule. A person may commonly disapprove of a particular rule (whether legal, as in the requirement to pay a particular tax, or social, as regards appropriate dress for a particular occasion), and even feel morally able to disobey it, while accepting that it is a rule and that those who break it (including perhaps himself) are open to criticism on that account. Those who internally accept the rule are those who use it as a standard by which to measure their own or others’ behaviour, without necessarily believing that it is a good rule.

Rules and principles

According to Hart, law is essentially a system of rules, identified and prioritised by a “rule of recognition”. When the rules run out, he said, the judge has discretion to decide the case. The most cogent criticisms of this view came from Ronald Dworkin, who said that law contains not only rules but also principles: in “hard cases” where the rules do not cover a particular situation, or give an unacceptable answer, the judge must be guided by principles. Such principles are not external to the legal system and used just for guidance, as Hart would claim: rather, they are an integral part of the system. A judge need not follow principles rigidly – if he did they would be rules – but he must take them into account when exercising his discretion. A judge who departs from principles too often will find many of his decisions reversed on appeal, and to that extent would evidently be making wrong decisions. Certainly the idea of a persuasive precedent (which is clearly not a legal rule) is hard to explain in positivist terms, and gives powerful support to Dworkin’s criticism. The principles that guide the judges’ decisions, said Dworkin, are themselves part of the law. Lawyers and even students think it meaningful to say “The House of Lords reached the wrong decision in such-and-such a case”, even though the decision did not directly break any pre-existing rule.

Every legal problem, according to Dworkin, has just one right answer, and the judge’s task is to discover it. The right answer is the one that is “best” both in terms of its fit with the corpus of decided cases and in terms of its content. For example, suppose a chess player annoys his opponent by smiling at him: the rules of chess prohibit causing unreasonable annoyance to an opponent but say nothing expressly about smiling, and the referee has to make a decision as to whether it is allowed or not. The “right” answer depends on whether chess is more a form of psychological warfare or a purely analytic exercise, and the referee will decide which explanation is more consistent with the history and practice of the game.

The judges, said Dworkin, are engaged in an exercise similar to the writing of a chain novel: a TV soap opera is probably an even better analogy. Each writer has some freedom in respect of his episodes, but must ensure that the characters act in a way consistent with their past behaviour. Subject to producing such a fit, the author may develop the story as he wishes, but some developments may be better from a literary or dramatic point of view than others, and his job is to choose the best. An episode in which all the leading characters were simultaneously killed in a railway accident might well “fit”, but would probably not be regarded as the best way of developing the story for the future! In the same way, each interpretation of the law adds something to the legal story, but the law has an integrity of its own and the judge must ensure that his interpretation forms part of a coherent theory justifying the legal system as a whole.

Dworkin therefore argued that in determining the law a judge is constrained to act in accordance with legal principle, and is not (as Hart suggested) free to use his discretion in any way he chooses. He uses an analogy of a sergeant told to select his five most experienced soldiers, and another of a boxing referee told to award the fight to the more aggressive boxer, and says that although the sergeant and the referee are called upon to exercise their judgment the criteria on which they are to do so are clear, and they certainly do not have the total discretion envisaged by Hart’s theory of law. Judges should not have such wide discretion either: if a judge is free to choose without restraint whether to benefit P at D’s expense or vice versa, the law is reduced to a kind of lottery. What we surely expect a judge to do is to enforce the pre-existing rights of one against the other, and where those rights are not clearly spelled out by the rules of law, we expect him at least to apply certain established legal principles.

Lawson v Serco [2006] UKHL 3
In three conjoined cases, the House of Lords considered the territorial scope of s.94(1) of the Employment Rights Act 1996, which gives employees the right not to be unfairly dismissed. The question in each case, said Lord Hoffmann, was whether s.94(1) applied to cases in which the employment had some British and some foreign elements. This was a matter of statutory construction, and should be decided according to established principles, giving effect to what Parliament might reasonably be supposed to have intended and attributing to Parliament a rational scheme. But this involved the application of principles, not the invention of supplementary rules. On the other hand, the fact that the House was dealing in principles and not rules did not mean that the decision was an exercise of discretion: the section either applied to each of the employment relationships in question or it did not, and that was a question of law, albeit one involving judgment in the application of the law to the facts.

We consider now several examples of principles in operation.

Persuasive precedents and obiter dicta are evidently not rules – if they were they would be binding rather than persuasive – but are certainly taken seriously by subsequent judges.

Doughty v Turner Manufacturing [1964] 1 All ER 98, CA
A man P was badly burned when a workmate carelessly knocked a cement block into a bath of molten metal; there was no splash, but a minute or so later there was a violent and wholly unexpected chemical reaction. In Re Polemis [1921] 3 KB 560 the Court of Appeal had held that a person who performed a negligent act was liable for all its direct consequences, but in The Wagon Mound [1961] 1 All ER 404 the Privy Council had disapproved this rule and had said liability existed only where the kind of damage was reasonably foreseeable. Following the latter decision, the Court found DD were not liable for P’s injuries: whether or not The Wagon Mound is binding on this court, said Harman LJ, we ought to treat it as the law.
Anderson v Rhodes [1967] 2 All ER 850, Cairns J
Vegetable merchants PP, acting on a verbal recommendation from other merchants DD, supplied potatoes on credit to a firm which subsequently went bankrupt. PP sued for negligent misrepresentation and the judge applied the principles set out by the House of Lords in Hedley Byrne v Heller [1963] 2 All ER 575. Academic lawyers, he said, might argue that those principles were obiter dicta and that he was bound by the contrary decision of the Court of Appeal in Candler v Crane Christmas [1951] 1 All ER 426. But when five members of the House of Lords have all said after close examination of the authorities that a certain type of tort exists, a judge of first instance should proceed on the basis that it does exist, without pausing to embark on an investigation whether what was said was necessary to the ultimate decision.
Caparo v Dickman [1990] 1 All ER 568, HL
PP bought shares in F plc with a view to taking it over, and bought more after seeing F’s auditors’ report. The shares then fell in value, and PP sued the auditors for their negligence in preparing their report. Giving judgment for DD, the House of Lords approved a dictum of Brennan J in the High Court of Australia that the law should preferably develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable “considerations which ought to negative or limit the scope of the duty or the class of person to whom it is owed”.
Wright v Lodge & Shepherd [1993] RTR 123, CA
Mrs S was the driver of a Mini which broke down on an unlit dual carriageway in fog. A lorry driven by L, travelling at 60 mph, struck the Mini from behind and then swerved across the central reservation to strike two more cars, injuring W and killing K. L admitted liability but claimed a contribution from S. Although the presence of S’s car was clearly a factual cause of these injuries, the trial judge applied a dictum of Cairns LJ in Rouse v Squires [1973] 2 All ER 903 to the effect that the reckless driving of a third party might amount to nova causa interveniens, and found S not liable. [The Court of Appeal subsequently agreed.]

When the rules run out, the judges seek to justify their decisions by analogy with past cases (the “goodness of fit” test) or by explicit appeal to general principles (the “best development” test), and do not simply rely on unfettered discretion.

McLoughlin v O’Brien [1982] 2 All ER 298, HL
A mother P saw members of her family in hospital about an hour after a fatal road accident – one daughter was dead and her husband and two other children were seriously injured – and herself suffered psychological injury for which she sued the other driver. Lord Wilberforce reviewed the history of “psychic injury” cases and their step-by-step development of the law, and proposed an extension from a victim at the scene to one who (like P) came upon the “immediate aftermath” of the accident, subject to other criteria which P satisfied. Lord Scarman took a different approach, and said there was a general legal principle that tortfeasors were liable for the forseeable consequences of their acts: it was foreseeable that P would suffer psychological injury in these circumstances, and that was enough.
Gillick v West Norfolk & Wisbech HA [1985] 3 All ER 402, HL
A mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother’s consent. The House of Lords considered various principles such as the rights and responsibilities of parents, the human rights of children as individuals, the need to respect doctors’ professional judgments, the importance of medical confidentiality, the welfare of the child as a cornerstone of family law, and the importance of not encouraging under-age sex, before deciding by a majority of 4-1 that a child under 16 who has sufficient intelligence to understand fully the implications of the proposed treatment (a “Gillick competent” child) can give her own consent to medical treatment.
Munroe v London Fire Authority [1997] 2 All ER 865, CA
Firefighters employed by DD were called to PP’s premises, where a number of small fires had been started by third parties. When the firefighters arrived the fires had apparently been extinguished, and after looking around they decided there was no more danger and left. One of the fires was not in fact extinguished and flared up again, causing damage to PP’s premises, and PP sued. In a preliminary hearing, Rougier J considered whether the fire brigade owed PP a duty of care. There were no decided cases directly on the point, so his judgment referred to 24 cases about duties of care owned or not owed by police officers, prison officers, hospitals, local councils, river authorities and so on. The closest analogy, he felt, was with the police, and he applied the reasoning in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 to hold that the brigade owed no duty of care to PP. [The decision was affirmed on appeal: Stuart-Smith LJ said the fire brigade was not under any common law duty to repond to a call for help, and was not liable if it failed to do so promptly or effectively or at all.]

Where the rules seem to lead to an unacceptable result, the judges may appeal to principles as justification for setting the rules aside. This goes beyond Hart’s “exercise of discretion”: if the rules are clear there is no scope for any exercise of discretion at all. Rather, the judges are weighing a powerful principle “that the rules should be applied” against another principle of fairness or justice or morality and coming down in favour of the latter.

Riggs v Palmer (1889) 115 NY 506, Supreme Court (New York)
A court had to decide whether a man who had murdered his grandfather could take his inheritance under the victim’s will. The rules of succession were apparently clear, but the judges cited repeatedly the principle that “no one should profit from his own wrong” and held that this overrode the provisions of the will, balancing this against the principle calling for a literal interpretation of the statute. The written rules, they said, were subject to certain overriding principles, and the legislature “could not possibly” have intended the murderer to inherit.
Central London Property v High Trees House [1947] KB 130, Denning J
In 1937 the owners PP leased a block of flats in London to DD at an agreed rent. When war broke out, many flats were left empty as people moved out to escape the bombing, and PP agreed to reduce the rent by half. DD paid the reduced rent until the end of the war, and PP then claimed for the “arrears”. The rules were clear – at common law, a promise made without consideration is not legally binding – but Denning J said that a party to a contract makes a promise to the other, which he knows will be acted on, that he will not enforce his strict legal rights, the equitable principle of promissory estoppel makes that promise binding on him until such time as he gives reasonable notice of his intention to resume those rights.
R v R (rape – marital exemption) [1991] 4 All ER 481, HL
Removing the “marital rape” exemption to affirm the conviction of a husband who had raped his own wife, the House of Lords clearly took into account a twentieth-century principle (not expressly stated anywhere as a rule of law) concerning a woman’s autonomy over her own body. This principle (and others) they then weighed against the very strong principle of stare decisis in relation to more than two hundred years’ recognition of the exemption and decided that the greater weight was in favour of the former.
Re Pinochet [1998] 4 All ER 897, HL; [1999] 1 All ER 577, HL
The House of Lords, reversing the Divisional Court, ruled 3-2 that A’s position as a former head of state did not confer immunity from extradition proceedings based on allegations by a third country of torture and other violations of human rights. Amnesty International was allowed to present an amicus curiae argument at this hearing, and it subsequently emerged that Lord Hoffmann, one of the judges in the majority, had for some years been a non-executive director of Amnesty International Charity. There is normally no appeal from decisions of the House of Lords, but A sought to set aside the Lords’ judgment, and a panel of five different Law Lords allowed his application. Lord Browne-Wilkinson said the fundamental principle is that a man must not be a judge in his own cause: Lord Hoffman was so closely and actively associated with one of the parties that he was disqualified from hearing the case regardless of whether or not there was any actual appearance or risk of bias. This did not mean that judges could never sit in cases involving charities they supported, but where the judge was a director or senior officer of a charity that was party to a case, disqualification is automatic subject to the possibility that the parties (having been fully informed) might waive any objection.

There are many rules both in statute and in common law that require a judge to determine (for example) whether or not certain conduct is reasonable, and this is often not expressly covered by rules. Here and in many other situations the judge must therefore “exercise his discretion”, but he is expected to do so in accordance with certain well-established principles and may be reversed on appeal if he does not.

R v Mason [1987] 3 All ER 481, CA
Section 78 of the Police And Criminal Evidence Act 1984 gives a trial judge discretion to exclude prosecution evidence if in the judge’s opinion the admission of the evidence would have such an adverse effect on the fairness of the trial that he ought to exclude it. Where the police obtained a confession by telling the accused man and his solicitor that his fingerprints had been found at the scene of a burglary, the judge exercised his discretion to admit the evidence. The Court of Appeal quashed the conviction, saying the judge had not properly taken into account the deception practised on the solicitor and had thus exercised his discretion wrongly.
Re S (Custody) [1991] 2 FLR 388, CA
M walked out leaving F with a girl G, aged 2. F was subsequently awarded custody, but M kept G after an access visit and subsequently obtained from a judge a custody order in her favour. Allowing F’s appeal and remitting the case to the family proceedings court for a new hearing, the Court of Appeal said G’s welfare was the first and paramount consideration: there is no legal presumption in favour of one parent over another, even though in practice a small child is usually better off with its mother, and the judge was wrong to prefer his discretion over the magistrates’.
Barrett v Ministry of Defence [1995] 3 All ER 87, CA
A sailor S became so drunk one night that he passed out and, having then been inadequately treated, choked to death on his own vomit. His widow P sued the Navy for their negligence. The trial judge though it fair and reasonable to impose on DD had a duty of care to prevent S becoming drunk, but the Court of Appeal disagreed. I can see no reason, said Beldam LJ, why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No one is better placed to judge the amount the he can safely consume or to exercise control in his own interest as well as the interest of others.

Even in sentencing, where judges have considerable discretion within the statutory limits, the Court of Appeal lays down guidelines for each offence. They will not alter a sentence that differs only slightly from the guideline, but the judge’s discretion is certainly not unlimited, and a sentence that is wildly out of line (even though within the rules) will be changed and the judge possibly criticised.

Principles are not simply rules of a different kind: they differ from rules in two fundamental ways.

First, the validity of rules is determined by the rule of recognition, which relates to their form and pedigree. A rule is valid if it satisfies certain criteria, normally quite independent of the rule’s content. But legal principles cannot be validated by pedigree: they are “valid” because they are felt to be appropriate by society and, in particular, by the judges. The rule of recognition cannot bring them in except by saying that they are those principles which society regards as legally binding, and that is a circular definition which involves an examination of the content of the principle in order to assess its validity.

Second, rules of law cannot conflict: any rule of recognition must necessarily include some test for determining which (if either) of two apparently conflicting rules is valid. In English law, for example, a later statute supersedes an earlier, a statute takes precedence over a common law rule, and directly applicable European law takes precedence even over Acts of Parliament. But there is no limit on conflicting principles. Suppose, for example, that we regard the principle that “no one shall profit from his own wrong” as a rule of law. We see immediately that there are exceptions to this “rule” – the doctrine of adverse possession, for example – and we seek to explain them. In terms of rules this is not easy, but in terms of principles it is simply a matter of setting that principle against another (and, in this case, weightier) that “stability and certainty of land tenure is to be promoted”.

Principles and policies

Dworkin’s general view of law is a liberal democratic one. He demands that the government treat people as deserving equal concern and respect, and impose no constraint depriving any citizen of a sense of equal worth. Any class or caste system that counts some members inherently less worthy than others, he says, is a system yielding no communal responsibilities and hence no moral duty to obey the law. Individual rights are fundamental, and the law should not be used to enforce private morality. Rather, the law acts as a constraint on the government and requires it to justify every use of coercive force against the individual.

Dworkin also demanded that judges respect the idea of the democratic mandate so far as policy-making is concerned, and leave matters of policy wherever possible to the elected legislature. The judges’ role is to apply legal rules and legal principles – the latter already exist and have merely to be discovered – rather than to make legislation based on policy and affecting retrospectively the rights of the parties in the instant case. He saw it as a matter for regret that judges do sometimes claim to be applying policy considerations when in fact they are looking for legal principles, and a matter for condemnation that they sometimes apply policy in fact as well as in name. He thus drew a distinction between principles and policies, though conceding that most principles could be framed as policies and most policies as principles by anyone so inclined. A policy, he said, is a standard setting out a goal to be achieved, usually in terms of the economic, social or political well-being of the community. A principle, on the other hand, sets individual rights above communal well-being and imposes a standard of justice or fairness or some other moral dimension. Matters of policy should be left to the elected legislators; judges should concern themselves only with legal principles, distinguishable from merely moral principles by the fact that lawyers and others regard them as being part of the legal system.

In ordinary debate, a person who asserts that a certain decision is “a matter of principle” is generally understood to mean that the consequences are immaterial to the decision, and Dworkin’s definition is similar. Principles, he says, are propositions that describe rights; policies are propositions that describe goals. Individual rights trump utilitarian goals, though in a time of major emergency (such as all-out war) it may be permissible to give goals preference over rights in order to regain or preserve a state of affairs in which principled decisions are once again possible. In general, however, judges should confine themselves to principles and rights, and leave matters of policy and goals to the elected legislature.

On the whole, the judges tend to agree with this view at least in what they say. Questions of social policy are better left to Parliament, they say, and it is not for judges to interfere in such matters.

Fisher v Bell [1960] 3 All ER 731, DC
A shopkeeper displayed in his window a flick knife with a price ticket, and was prosecuted for offering for sale an offensive weapon contrary to the Restriction of Offensive Weapons Act 1959. The Divisional Court said the phrase “offer for sale” was to be taken literally, in accordance with its meaning in contract law, and that D’s display of the weapon was no more than an invitation to treat. This interpretation made the relevant section of the statute almost wholly useless, but was consistent with the strict approach commonly adopted towards penal provisions. This is classically a decision based on principle, perhaps even wrongly so in the circumstances, and clearly takes no account of policy considerations.
Bradbury v Enfield LBC [1967] 3 All ER 434, CA
The local authority DD anticipated by some months Ministerial approval of a reorganisation plan for eight schools. Goff J conceded that DD were in breach of the statutory rules providing that they “shall not do anything” prior to such approval, but refused to grant relief because of the major inconvenience that would be caused. However, the Court of Appeal granted the injunction sought: Lord Denning MR agreed there might well be considerable upset for a number of people, but thought it more important to uphold the rule of law.
Morgans v Launchbury [1972] 2 All ER 606, HL
The victims of a road accident sued the owner of a car, claiming she was vicariously liable for the negligence of the driver, a friend of her husband driving the husband to a restaurant after an evening at the pub. They claimed it was a “family car” and that the husband should be regarded as joint owner with the wife. The House of Lords found for the owner and refused to bring into the law the novel “family car” concept. Lord Pearson said such an innovation, whether or not it was desirable, was not suitable to be introduced by judicial decision. It raised important questions of policy, which needed to be considered by Parliament, using the resources at their command for making wide enquiries and gathering evidence and opinion. Lord Wilberforce said that to declare from that date a new and more extensive principle of liability would affect many people’s assumed legal rights. Any such new direction must be set by Parliament for the future, not by the courts retrospectively.
Blathwayt v Cawley [1975] 3 All ER 625, HL
A man T made a well which left substantial property on trust to C for life and then to C’s sons, on condition that they were not and did not become Roman Catholic. T died and the property passed to C, who subsequently joined the Roman Catholic church. In a judgment based mainly on technical matters, the House of Lords said obiter that the public policy against religious discrimination must give way to the principle of testamentary freedom.
McLoughlin v O’Brian [1982] 2 All ER 298, HL
P’s family were injured in a road accident, and she suffered psychiatric illness after seeing them in hospital. She sought damages from the other driver, although she had not been at the scene of the accident, and the House of Lords agreed she should succeed. Lord Scarman said that by concentrating on principle instead of policy the judges could keep the common law flexible and consistent, and keep the legal system clear of policy problems which neither it nor the trial process were equipped to solve. If this led to socially unacceptable results, Parliament could legislate to draw a line or map out a new path. Why should the courts not draw the line, as the Court of Appeal had tried to do in this case? Because the policy issue – where to draw the line – was not justiciable: the problem was one of social, economic and financial policy.
Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53, CA & HL
A tanning firm on a small industrial estate used organochlorides which were stored in drums on their land. Over time there were small spillages on the land, and chemicals percolated down (over a period of several years) and entered the water supply. When new EC quality standards for drinking water were introduced, the level of chemicals in the water abstracted from that area was unacceptable, and the water company sued for damages. Giving judgment for PP in the Court of Appeal, Mann LJ said that where (as here) the law binding on the court was clear, the court’s decision could not be affected by policy considerations. Whether that old law was still appropriate for modern conditions was for others [i.e. for Parliament] to decide. The House of Lords subsequently reversed the decision on the basis that the existing law was not as clear as it had appeared, but agreed on the policy question. The protection and preservation of the environment is now perceived as being of crucial importance to the future of mankind, said Lord Goff, and public bodies are taking significant steps to make the polluter pay for damage to the environment, but it does not follow that a common law principle should be developed or rendered more strict to provide for such liability. On the contrary, it may well be undesirable that the courts should do this.
Hunt v Severs [1994] 2 All ER 385, HL
P had been injured in a road accident through D’s negligence, but D visited her regularly while she was in hospital, subsequently married her, and continued to provide part of her care. The trial judge awarded damages which included an amount for the care being provided by D, and the Court of Appeal upheld this award, but the House of Lords reversed this decision. The fact that the damages would actually be paid by D’s insurers made no difference, said Lord Bridge; to accept this as a relevant factor would represent a novel and radical departure in the law of a kind which only the legislature might properly effect. At common law, the fact that a defendant was contractually indemnified by a third party could have no relevance whatever to the measure of liability.
R v Clegg [1995] 1 All ER 334, HL
A soldier who used excessive force and killed an escaping joyrider appealed against his conviction for murder, but the House of Lords said no alternative verdict of manslaughter was possible in these circumstances. Lord Lloyd said he was not averse to judges’ developing law, or even making new law, when they could see their way clearly, even where questions of social policy were involved. A good recent example would be the decision that a man could be guilty of raping his wife. But in the present case their Lordships should abstain from lawmaking: the point in issue was closely related to the wider issue of whether the mandatory life sentence for murder should be retained, and that wider issue could only be decided by Parliament. [The conviction was later quashed on different grounds.]
C (a minor) v DPP [1995] 2 All ER 43, HL
A 12-year-old boy A was charged with interfering with a motor cycle under s.9(1) of the Criminal Attempts Act 1981. The magistrates convicted him, and the Divisional Court not only upheld the conviction but declared the presumption obsolete: it had no utility today, said Mann LJ, and ought to go. The House of Lords disagreed. The presumption had been discussed in many official reports, said Lord Lowry, and a draft Bill produced by the Law Commission in 1985 had proposed its abolition, but a white paper in 1990 had indicated that the government had no intention of changing the law in this respect. The imperfections attributed to that doctrine could not provide a justification for saying that it was no longer part of English law, and to sweep it away under the doubtful auspices of judicial legislation was impracticable.
Al-Masari v Home Secretary (1996) unreported
A Saudi dissident A applied for political asylum in the UK. The government of Saudi Arabia objected to his writings, which advocated Muslim fundamentalism and were highly critical of that government, and threatened economic measures against the UK if A was allowed to continue. The UK government acknowledged implicitly that A’s life would be in danger if he were returned to Saudi Arabia, but refused political asylum and ordered his deportation to a third country willing to receive him. The Home Office minister argued that a balance had to be struck between A’s right of free speech and thousands of British jobs. The Chief Immigration Adjudicator (Judge Pearl) allowed A’s appeal, saying DD had not established that Dominica (to which A was to be deported) was a safe third country. The Home Office subsequently granted “exceptional leave to remain” in the UK for four years.
R v Davis [2008] UKHL 36
A man D was charged with murder. The main witnesses against him were frightened to testify in open court, so the judge ordered that their identities should be kept secret (from the defendant as well as from the public). Allowing D’s appeal against his conviction, the House of Lords said that a defendant’s right to confront his accusers is fundamental to the adversarial system of justice, and any departure from this common law rule would be a matter for Parliament.

The judges’ words are sometimes belied by their actions, however, and there are many examples of cases in which judicial decisions have clearly been based on social policy goals rather than on individual rights.

Smith v Hughes [1960] 2 All ER 859, DC
A number of prostitutes DD were charged with soliciting “in a street or public place” contrary to s.1(1) of the Street Offences Act 1959. One had been on a balcony above the street, and others had been sitting behind open or closed windows at first-floor level. Upholding their convictions, Lord Parker CJ said this was the mischief the Act was intended to prevent – everybody knows this was an Act intended to enable people to walk along the streets without being molested or solicited by prostitutes – and if DD could be clearly seen from the street that was sufficient. The mischief rule is essentially a rule of policy, but its use can probably be justified if the court is genuinely seeking to determine the intention of Parliament.
Shaw v DPP [1961] 2 All ER 446, HL
D published a booklet containing the names and addresses of prostitutes, their photographs, and details of the services they provided, and was charged with conspiracy to corrupt public morals, a supposed common law offence never previously charged. The House of Lords (Lord Reid dissenting) upheld his conviction. Viscount Simonds said that in the sphere of criminal law he had no doubt the courts retained a residual power to enforce the supreme and fundamental purpose of the law, namely, to conserve not only the safety and order but also the moral welfare of the state. It was their duty to guard against attacks which might be the more insidious because they were novel and unexpected. Here was a policy decision pure and simple.
Chadwick v British Railways [1967] 2 All ER 945, CA
A rescuer who voluntarily spent some six hours helping to bring the dead and injured out of the wreckage at a particularly harrowing train crash suffered foreseeable psychiatric injury, and was awarded damages against British Railways, whose negligence had led to the crash. Although he had come onto the scene voluntarily, the courts as a matter of policy do not want to discourage rescuers.
Nettleship v Weston [1971] 3 All ER 581, CA
A learner driver D went out for her first lesson, supervised by a friend P. D crashed the car into a lamppost, and P was injured. P’s claim for damages was upheld by the Court of Appeal, subject to a deduction for contributory negligence. Even learner drivers, said the Court, are to be judged against the standard of the reasonably competent driver. The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard. Lord Denning MR justified the decision by reference to policy: the injured person can recover damages from an insurer only if the driver is liable in law. So the judges must see to it that the is liable unless he can prove care and skill of a high standard. In this branch of the law, he went on, we are moving away from the concept “No liability without fault” to another, “On whom should the risk fall?”. Morally the learner driver is not at fault, but legally she is liable because she is insured and the risk should therefore fall on her.
DPP v Majewski [1976] 2 All ER 142, HL
Following a fight in a pub, D was charged with assaulting a constable and causing actual bodily harm; his defence was that he had taken a mixture of drink and drugs and had no intention to commit the acts in question. The Criminal Justice Act 1967 s.8 says that in determining whether a defendant intended certain consequences the court must have regard to all the evidence, the burden of proof being on the prosecution, and must not infer such an intention merely because the consequences were likely, but the House of Lords said that rule was irrelevant to cases such as this. One of the prime purposes of the criminal law, said Lord Simon, is the protection from unprovoked violence of people who are pursuing their lawful lives; to allow intoxication as a defence would leave the citizen unprotected from such violence where the perpetrator had taken drink or drugs and did not know what he was doing. The decision is not hard to understand, and is probably right, but it is based on policy considerations going to goals, and ignores the principle that criminal statutes are to be construed narrowly.
Ashton v Turner [1980] 3 All ER 870, Ewbank J
An escaping burglar was injured through the negligence of his getaway driver, but his claim for damages got short shrift from the courts. As a matter of policy, said the judge, the law will in some circumstances refuse to recognise the existence of a duty of care owed by one participant in crime to another.
R v O’Grady [1987] 3 All ER 420, CA
Following a drunken brawl, D was charged with murder; his defence was that (in his drunken state) he had overestimated a threat to himself and responded in self-defence. Dismissing his appeal against his conviction for manslaughter, the Court of Appeal said the principle that a person should not be penalised for an honest mistake gave way to the policy consideration that society should be protected from those who do dangerous things as a result of intoxication.
Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, HL
In spite of a massive police search, the “Yorkshire Ripper” remained free for several years and murdered a dozen young women. The mother of his last victim sued the police for negligence in failing to catch him, alleging inefficiency and errors in their handling of the investigation. The House of Lords said she could not succeed: the police owed no duty of care towards Susan Hill to protect her from the Ripper. Glidewell LJ in the Court of Appeal and Lord Keith in the House of Lords suggested that there were public policy reasons for not allowing claims like these. If such claims were allowed, they said, the police would be inhibited in the exercise of their professional judgment, and a vast amount of police time and money would be diverted from the fight against crime to the defending of civil cases.
Alcock v Chief Constable of South Yorkshire [1991] 4 All ER 907, HL
Claims were brought by relatives and friends of some of the people killed in a crush at the Hillsborough football stadium in Sheffield after the police had negligently allowed a crowd to build up too rapidly in a particular part of the stand. The House of Lords reviewed the law on the scope of liability for psychiatric injury, and confirmed the continued existence of tests other than mere foreseeability. Rescuers should continue to qualify on policy grounds, said the House, even though they were not in a close relationship with the victim. But otherwise, several of their Lordships referred to the “floodgates” argument, and the fear of opening up unlimited liability, while Lord Oliver openly used the word “policy” in explaining his decision.
R v Powell [1997] 4 All ER 545, HL
DD went with another man to buy drugs from a dealer; the dealer was shot as he came to the door and (as it could not be shown who fired the shot) both were convicted as accomplices to murder. Affirming DD’s conviction, Lord Hutton said it was enough to found a conviction for murder that a secondary party to a joint enterprise realised the principal might kill with the intention of causing death or serious injury. It might be anomalous and illogical that a secondary party could be convicted on lesser mens rea than was required of the principal, but the rules of the common law were based in part on practical concerns and (in relation to crimes committed during a joint enterprise) the need to give effective protection to the public against criminals operating in gangs.
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WHAT IS JUSTICE AND IS LAW JUST?

Posted in Uncategorized by drsivalaw on February 27, 2010

Almost everyone has a concept of justice – even a small child understands that certain things are “not fair” – but like an elephant it is easier to recognise than to define. A number of distinguished lawyers have made the attempt, however, and we need to consider and compare their various theories. So what is justice?

JUSTICE AS EQUALITY

The Greek philosopher Aristotle lived in the 4th century BCE, and argued his Nicomachean Ethics that justice (in a politico-legal sense) has two branches: distributive justice and corrective justice. Distributive justice includes the distribution of honours etc among citizens by the state, and the distribution of private property through contracts; corrective justice is concerned with the rectification of unfair distribution. There are always two parties involved, he said, and justice is the mean between the unfairness which favours A and the unfairness which favours B.

Distributive justice, said Aristotle, plainly takes into consideration the merits of the parties – it is unjust that equal parties should have unequal shares, or that unequal parties should have equal shares. Distributive justice is a question of proportion rather than of equality: “all men agree” that what is just in distribution must be according to merit in some sense, though they do not all specify the same sort of merit.

Corrective justice is concerned with restoring a balance which has been disturbed, whether by a voluntary or an involuntary act. Here we are concerned with equality: it makes no difference whether a good man has defrauded a bad man or a bad man a good one, nor whether it is a good or a bad man that has committed adultery; the law looks only to the character of the injury and treats the parties as equal. The judge tries to equalise them once again by imposing a penalty, taking away from the wrongdoer’s gain and (where possible) compensating the victim.

That is not to say that corrective justice requires exact reciprocity – the Lex Talionis of “eye for eye, tooth for tooth” – for in many cases reciprocity and rectificatory justice are not in accord. If an official has unjustly inflicted a wound, for example, he should not be wounded in return, but if some one has wounded an official, he ought not to be wounded only but punished in addition. Moreover, there is a great difference between a voluntary and an involuntary act – justice may require that these be treated differently even where they lead to the same injury.

The French jurist C H Perelman set out in his book De La Justice in 1945 six possible meanings of the word “justice”. He explained these meanings in terms of a distribution of benefits, not dissimilar from Aristotle’s ideas of distributive justice, but his arguments could fairly easily be adapted to deal with burdens.

To each according to his works
Justice may be done if people’s rewards are determined according to their contributions, either on a limited scale (e.g. within the factory, those who produce more are paid more) or on a larger social scale (e.g. the doctor is paid more than the dustman, because his greater skills make him a more valuable member of society). This notion of justice is at the heart of a free-enterprise culture, though very few societies, if any, function entirely on this principle.
To each according to his needs
Some people would say justice is served if people receive what they need. A parent supporting several children and an aging grandparent receives more in benefits and tax credits than a single person with no such responsibilities, because her needs are greater. A couple with small children gets higher priority on the housing list; and a disabled person is eligible for special benefits and tax allowances because he has special needs. The welfare state is based on this idea of justice.
To each according to his merits
Justice may mean that each person gets what he or she deserves: the good (according to the appropriate ethical or other criteria) are rewarded and the bad are penalised. Those who commit serious crimes are sent to prison because this is what they deserve, and (in some people’s belief) the ultimate destination of the soul after death depends on the person’s merits during life on earth.
To each according to his rank
Such a concept of justice may sound outdated, and the special privileges of peers have largely vanished from modern society. But teachers often have recreational and other facilities denied to students, older children within a family often have more privileges (and more pocket money) than younger ones, and many large organisations determine salary by reference to a fixed scale (perhaps with annual increments) irrespective of individual productivity.
To each according to his legal entitlement
Although this may not be sufficient to ensure justice, it is almost certainly necessary. If the law provides that those charged with a grave offence should receive legal aid, justice surely demands that they receive it. Similarly, if the widow of an intestate is legally entitled to the first £125 000 of his estate, it would not be just if she were deprived of it, even if she were an unloving wife and a millionairess in her own right.
To each equally
On its face this might seem the most basic form of justice, even if rarely applied in practice. If several children are given a bag of sweets and told to share them fairly, they will probably interpret that as meaning that each should receive the same amount. But the poll tax was based on this principle of equality, and was widely regarded as an unjust tax because it took no account of other notions of justice such as the ability to pay.

Perelman thus recognised that justice might be defined in various ways, but suggested that supporters of any of his six views would agree on something. Once the type of justice had been defined, he said, and each individual placed in a certain “essential category” according to his works, needs, merits, rank or legal entitlement, everyone would then agree that justice requires all the individuals in a given category to be treated the same. What would be unjust would be if two people, alike in every respect defined by the chosen criteria, were to be treated differently.

In The Concept of Law, H L A Hart linked the idea of formal justice with that of morality. He agreed that like cases should be treated alike – this point seems to be common to most theories of justice – but argued that this raised important questions as to what makes cases alike or different. Why is it just to treat blonde murderers the same as brunettes, but unjust to treat sane murderers the same as insane? If it is just to treat women the same as men in relation to their employment opportunities, why should they be treated differently in relation to maternity leave? And if two people commit similar crimes in similar circumstances, is it just that one should be given a heavier sentence “to set an example to others”?

R v Reeves [1964] Crim LR 67, CA
Two men were convicted of receiving stolen property together. D1 had chosen to be tried summarily and had been fined £25, but D2, who had elected trial by jury, was sent to prison for nine months. On appeal, the Court of Appeal said D1’s sentence was ludicrously lenient, particularly as he had a previous conviction for this offence, but ordered D2’s immediate release (after he had served some three months) because of the strong sense of grievance he would feel at the unfairness of the outcome.
Ghaidan v Mendoza [2004] UKHL 30
The tenant of a privately rented flat died, and his gay partner (who had lived with him) sought to take over as a statutory tenant, claiming he had been living “as the wife or husband of” the deceased tenant. (In Fitzpatrick v Sterling Housing the House of Lords had rejected such a claim, but had granted the partner an assured tenancy as “a member of the tenant’s family” under a different section of the relevant Act.) Lord Nicholls said Art.14 of the European Convention requires like cases to be treated alike, and unlike cases not to be treated alike. The circumstances which justify two cases being regarded as unlike are infinite, but there are certain grounds of factual difference which are not in themselves acceptable as a basis for different legal treatment. Differences of race or sex or religion are obvious examples, and sexual orientation is another. The majority of the House agreed, and granted the survivor the statutory tenancy he sought.
R (Carson) v Secretary of State [2005] UKHL 37
A British pensioner now living in South Africa claimed she should receive the same cost-of-living increases as pensioners still living in the UK. Dismissing her claim, Lord Hoffmann said the principle that everyone is entitled to equal treatment by the state, that like cases should be treated alike and different cases should be treated differently, will be found in most human rights instruments and written constitutions. The claimant was being treated differently from a pensioner who lived in the UK, but that was not discrimination. Discrimination means a failure to treat like cases alike: there was no discrimination when (as here) the cases were relevantly different.

JUSTICE IS DIVINE

The religious philosopher Thomas Aquinas said in the thirteenth century that a just law was one which served the common good, distributed burdens fairly, promoted religion, and was within the law-maker’s authority. That authority is limited by Divine law, and a human law that goes against God’s law is unjust and should not be obeyed. The difficulties of applying such ideas in a largely secular society are obvious, but they are important in their recognition that civil disobedience may sometimes be appropriate.

Aquinas argued inter alia that “almsgiving by the rich from their superfluity, to relieve those in extreme need, is an act of justice”. Note that he does not say that this is a good thing, or that the rich person should be praised: he says it is an act of justice. Almsgiving in these circumstances is what justice requires, he implies, and failure to give alms would be unjust.

The New Catechism of the Roman Catholic Church in England and Wales takes a reformative rather than a conservative view of justice. “Justice is a disposition of the will which inclines us to give to every person what is his or her due with a view to the common good of the whole society. We exercise the virtue of justice … by seeking to change an unjust society … in which some section of the community is systematically exploited in the interests of another wealthy and powerful section.”

UTILITARIAN JUSTICE

The political philosophy of utilitarianism was developed by Jeremy Bentham and modified by John Stuart Mill. A law (or an action) is just, said Bentham, if its overall effect is to increase the sum of human happiness, and unjust if it decreases happiness. It is important to note, though, that this notional calculation must take into account not only the number of people who are made more or less happy, but the depth of their happiness or unhappiness. An action which makes a few people very happy and a lot of people slightly unhappy (or vice versa) may be just or unjust according to the numerical values assigned to their feelings.

Utilitarianism still plays a major part in the democratic decision-making process, and in its favour are two telling arguments. First, it is a secular theory requiring no reference to any Divine law or other abstract religious principles defensible only by faith. And second, the idea of maximising the total happiness of the community is often applied – though perhaps not mentioned by name – in everyday life, both on a national political level and in ordinary dealings among friends. There is no doubt that it works well for much of the time, but in marginal cases the theory breaks down and produces results far removed from those which most people would consider right.

In particular, utilitarianism is concerned only with the total or average happiness of the community, and has no concern for its distribution. [Different writers take different views on the question whether utilitarianism is concerned with the total happiness of the community or the average happiness of its members. In most cases they increase or decrease together, but in a small community with limited resources the birth of a child – a “happy event” – might increase total happiness while diminishing the average because of the greater number required to share the common food store.] The strict utilitarian would see nothing wrong in slavery, for example, if the happiness of many could be increased thereby sufficiently to outweigh the misery caused to a few.

In reply, the utilitarian commonly argues that the principle of diminishing marginal utility actually favours redistribution moving towards greater equality. £100 given to a poor person increases his happiness by much more than it decreases the happiness of the rich person from whom it is taken. On the other hand, maximum happiness depends on high wealth and high productivity, and these are likely to be promoted by a system which gives incentives for hard work and enterprise, so that the extreme of total equality is avoided. This argument fails, however, if we try to apply utility to a crime such as rape. Rape clearly causes pain (at least in the utilitarian sense) to the victim and presumably gives pleasure to the rapist, and in virtually all cases the pain caused (to other women put in fear, as well as to the individual victim) outweighs the pleasure gained. But in cases of gang rape, where several men are deriving pleasure from the same assault, and in other cases where the pain and pleasure caused are equal, the strict logic of utility leads to the conclusion that the more the rapists’ enjoyment the less “unjust” it is, and it is possible that they might enjoy it so much as to outweigh the victim’s pain. But this defies common sense: the obvious injustice of rape should not depend on the statistics of a particular case.

A second criticism of utilitarianism is that it defines as right or just that which brings about the desirable consequence of increased happiness: in other words, it claims that the end (in this case the result, rather than the purpose) may justify the means. Mill was particularly firm on this point, insisting that the principle of utility is concerned only with the effects of an act and not with the intentions behind it, and the consequence principle is now regarded as a cornerstone of utilitarianism. But this position is one that many people find unacceptable: torturing a terrorist, for example, would be just if is succeeded in extracting evidence preventing further deaths, but unjust if it failed (because there would be no general increase in happiness to offset the unhappiness caused to the terrorist). The impossibility of determining in advance the justness of any proposed act therefore makes utilitarianism of little value as a guide to just behaviour.

JUSTICE AS FAIRNESS

The American jurist John Rawls, who died in 2002, published A Theory of Justice in 1971. He defined justice as that which prevailed in a just society, and a just society as one to which a group of rational but mutually disinterested (i.e. selfish but not envious) people would unanimously choose to belong if such a choice were available. In making that hypothetical choice, however, the individual would operate behind a “veil of ignorance”, knowing nothing about his own position in the society. (We might liken it to a person devising a set of rules for a ship’s crew, knowing that his role in that crew would be decided by pure chance after the rules had been drawn up.) He would be ignorant even of his own age, sex, character, physical and mental abilities, tastes and preferences, beyond those common to all human beings.

Rawls then predicted that any such society would exhibit two essential features. No one, he claimed, would agree to a system involving lasting personal sacrifice for the greater good of others – each would give least some thought to his own well-being. But people would adopt a “maximin” approach, seeking to optimise the fate of those worst off in case they themselves should come into that class. They would therefore try to ensure that every person had certain basic liberties, such as freedom of person, freedom of speech and thought, freedom to participate in government, and freedom to possess property, to the greatest extent compatible with the enjoyment of the same basic liberties by others. And second, they would not accept significant social or economic inequalities, or differences of treatment, except insofar as these were for the benefit of the least well off members of the society. Thus (said Rawls) people would agree that doctors should be paid higher than average incomes, because this would encourage able people to qualify as doctors and so benefit everyone in the long run.

JUSTICE AS ENTITLEMENT

Another American, Robert Nozick, put forward in Anarchy State and Utopia (1974) a very different approach. His idea of justice was based on rights, and he defined a just society as one in which individual rights were accorded the respect due to them. Each individual, said Nozick, has certain natural rights to the enjoyment of life, health, liberty and possessions without interference from others, and to compensation from anyone who trespasses upon them. Those rights are inalienable: no other person and no state authority can justly diminish them, for however good a cause, without the individual’s consent.Inequalities between human beings are a fact of life, and justice does not require that they be corrected.

In the early days, said Nozick, each individual was responsible for protecting his or her own rights, but the weakness of an individual alone and the danger that he might assess wrongly the extent to which his rights had been violated could lead to anarchy. Human beings therefore came gradually to accept the role of the state as a protector of these rights, but that is the limit of the state’s legitimate role. It can secure compensation for any member whose natural rights are infringed, and it can properly prohibit potentially dangerous conduct (such as the driving of motor cars by epileptics) as long as the individuals thus restricted are compensated for their loss of liberty. But the right to life (say) does not extend to the right to be fed or housed by others: such a claim would impinge upon their rights to enjoy their own property.

Property, said Nozick, can be justly acquired in three ways: if it was previously unowned by anyone and was acquired by the individual’s effort or skill; or if it is validly transferred by its previous owner (e.g. by way of gift or sale); or if it was transferred by court order to rectify a previous unjust acquisition (e.g as compensation for a crime). But there should be no question of redistribution for social purposes. No one suggests that kidneys should be compulsorily redistributed, even though the possession of two functioning kidneys is just as much a matter of “unfair” chance as the possession of inherited wealth. Rawls’ ideas of distributive justice, said Nozick, involved unwarranted interference with the inherent rights of individual members of society.

IS THE LAW JUST?

No one, surely, would disagree with the proposition that one of the aims of any legal system should be the promotion of justice. It should not necessarily be the sole aim – other “goods” to be promoted might include mercy, liberty, public order and the avoidance of unreasonable public expenditure – but it is an important one. The buildings in the Strand commonly called “the Law Courts” are actually the “Royal Courts of Justice”, and High Court judges and magistrates have been known as “Justices” for many years.

However, different judges see their duty to promote justice in different ways. In his autobiography The Family Story, Lord Denning wrote that “My root belief is that the proper role of the judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid the rule, even to change it, so as to do justice in the instant case before him.”

Sir Robert Megarry VC in Tito v Waddell (No.2) [1977] 3 All ER 129 took a different view: “The question is not whether the plaintiffs ought to succeed as a matter of fairness or ethics or morality. I have no jurisdiction to make an award to the plaintiffs just because I reach the conclusion … that they have had a raw deal. This is a Court of Law and Equity (using “equity” in its technical sense), administering justice according to law and equity, and my duty is to examine the plaintiffs’ claim on that footing.”

Where possible, most judges take a position somewhere between these two extremes, bringing justice (however they understand the word) into the administration of the law whenever they have the opportunity.

The extent to which the English legal system is formally just and/or leads to substantive justice depends on one’s definition of justice. Most people (with the possible exception of Marxists and those who endorse “critical legal studies”) would agree that most of the system is just and leads to just results most of the time. But a number of illustrative cases and other points are worth considering.

FORMAL JUSTICE

The rules of procedure in English law generally show an intention to secure formal justice, and often succeed.

Everyone has access to the law, and everyone (even the government) is subject to the law. That seems to show justice as fairness, but if the Government does not like the result it can usually reverse it by legislation.

Burmah Oil v Lord Advocate [1964] 2 All ER 348, HL
Various oil installations belonging to PP were blown up by British troops during World War II to prevent their falling into Japanese hands. In interlocutory proceedings the House of Lords said that although the troops’ actions were lawful, PP had prima facie a common law right to compensation. Following that decision, Parliament enacted the War Damage Act 1965, which declared that no compensation was payable in such cases and was expressly made retroactive so as to prevent any final judgment in PP’s favour.
Congreve v Home Office [1976] 1 All ER 697, CA
The Government announced a substantial increase in the cost of television licences, to come into effect at a specified future date. P and others sought to avoid paying the higher price by buying new licences (at the old rate) before their existing licences had expired. The Home Secretary then purported to exercise his discretionary powers to cancel the new licences, but the Court of Appeal said to do so would be unlawful. Parliament had given him that power in order that he could prevent the improper use of broadcasting equipment, not so that he could penalise those who were acting quite lawfully.
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935, HL
The Government announced changes in the conditions of service of workers at GCHQ, made under prerogative powers and affecting chiefly the workers’ rights to belong to a trade union and take part in its activities. The House of Lords said the Prime Minister could be made to answer to the Court for the way in which the royal prerogative was exercised, although the instant case involved issues of national security, which are not justiciable.
M v Home Office [1993] 3 All ER 537, HL
An alien M sought judicial review of a decision to deport him. In interlocutory proceedings Garland J understood counsel for D to give an undertaking that M would not be removed pending final judgment, but on learning later that night that M had in fact been deported, the judge ordered the Home Office to bring him back. The Home Office failed to do so. The House of Lords held the Home Secretary in contempt of court but declined to impose any punishment because there had apparently been a genuine misunderstanding by the Home Office legal advisors.

Everyone is entitled to put his or her case in court, either personally or through a legal representative, and there are various legal help schemes are supposed to ensure that everyone can get legal advice and (where necessary) legal representation at trial. But legal aid does not cover all types of case – it does not even cover most civil cases since April 2000 – and many people with even modest incomes are not eligible. Conditional fee agreements are available to plaintiffs with a good case, but defendants and those whose chances of success are poor may find it hard to get a lawyer willing to take the case without payment. As Darling J is supposed to have said, “the law, like the tavern, is open to all.”.

Judges, magistrates and jurors must not be biased (or even appear to be biased), but prospective jurors cannot be questioned about their views and the right of peremptory challenge was abolished some twenty years ago.

Dimes v Grand Junction Canal (1852) 10 ER 301, HL
The canal company RR brought a case in equity against a landowner A; the Vice-Chancellor granted RR’s request and Lord Cottenham LC upheld the decision on appeal. A then discovered that Lord Cottenham held a substantial block of shares in the canal company and applied to have the Chancellor’s decision set aside. The House of Lords said that although there was no suggestion that the Lord Chancellor had in fact been influenced by his interest in the company, no case should be decided by a judge with a financial interest in the outcome. The Chancellor’s orders were therefore set aside as such, but those of the Vice-Chancellor (to the same effect) were confirmed.
R v Bingham JJ ex p Jowitt (1974) Times 3/7/74, HC QBD
A motorist A was charged with exceeding the speed limit, and the only evidence was given by D and a police officer, who contradicted one another. Finding D guilty, the chairman said “My principle in such cases has always been to believe the evidence of the police officer.” The High Court quashed the conviction; this remark would cause any reasonable person to suspect that the chairman of magistrates was biased and that D had not had a fair trial.
Bradford v McLeod [1986] Crim LR 690, HCJ (Scotland)
A miner convicted of a breach of the peace on the picket line appealed against his conviction. The sheriff had previously been heard to say on a social occasion that striking miners should not be given legal aid, but declined to disqualify himself and insisted he could try the case fairly. The High Court of Justiciary said this was enough to create a reasonable suspicion of bias, whether there had in fact been any bias or not: the sheriff should have disqualified himself.
Re Pinochet [1998] 4 All ER 897, HL; [1999] 1 All ER 577, HL
The House of Lords, reversing the High Court, ruled 3-2 that A’s position as a former head of state did not confer immunity from extradition proceedings based on allegations by a third country of torture and other violations of human rights. Amnesty International was allowed to present an amicus curiae argument at this hearing, and it subsequently emerged that Lord Hoffmann, one of the judges in the majority, had for some years been a non-executive director of Amnesty International Charity. A sought to set aside the Lords’ judgment, and a panel of five different Law Lords allowed his application. Lord Browne-Wilkinson said the fundamental principle is that a man must not be a judge in his own cause: Lord Hoffman was so closely and actively associated with one of the parties that he was disqualified from hearing the case regardless of whether or not there was any actual appearance or risk of bias. This did not mean that judges could never sit in cases involving charities they supported, but where the judge was a director or senior officer of a charity that was party to a case, disqualification is automatic subject to the possibility that the parties (having been fully informed) might waive any objection.

The rules of evidence ensure that only relevant evidence fairly obtained is given in court. Evidence obtained by oppression or in circumstances making it unreliable can be excluded, though not every illegal act by the police necessarily has this result. But the rules of evidence can operate against substantive justice when they exclude evidence (perhaps evidence improperly obtained) that might have led the court to the right decision.

Sparks v R [1964] 1 All ER 727, PC (Bermuda)
A white man A was charged with indecently assaulting a three-year-old girl. The girl had told her mother that it was a coloured boy who had assaulted her, but the girl did not give evidence and the mother was not allowed to say what her daughter had said because of the rule against hearsay evidence. A was convicted and appealed. The Privy Council allowed his appeal on other grounds, but Lord Morris said the cause of justice was best served by strict adherence to the recognised rule. [Section 114(1)(d) of the Criminal Justice Act 2003 now makes hearsay admissible where the judge is satisfied that it would be in the interests of justice for it to be so.]
Jeffrey v Black [1978] 1 All ER 555, DC
A student D was arrested for stealing a sandwich from a pub; the police searched his flat, where they found a quantity of drugs. At D’s trial for possession of drugs the justices found the evidence inadmissible and dismissed the charge, but the Divisional Court remitted the case for rehearing by a new bench. Although the police had no right to search D’s home without his consent (because they had no reasonable grounds to suspect large-scale sandwich theft!) that was not in itself a reason to exclude the evidence.
R v Watts [1983] 3 All ER 101, CA
A man of low intelligence was charged with indecently assaulting a woman in an underpass; he claimed to have been at home at the time and said a supposed “confession” had been fabricated by the police. At his trial, the judge allowed evidence to be given of two previous convictions for sexual assaults on children, and the jury convicted. Allowing his appeal, the Court of Appeal said the prejudicial effect of these previous convictions outweighed any possible value they might have as indicators of his truthfulness, and that the judge should not have allowed them to be mentioned. [Section 101 of the Criminal Justice Act 2003 now allows evidence of the defendant’s previous convictions to be given in some circumstances, but not where it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
R v Mason [1987] 3 All ER 481, CA
A man D confessed to burglary after the police had told him and his solicitor that his fingerprints had been found at the scene of the crime. This was not in fact true, but the judge admitted the confession to evidence and D was convicted. The Court of Appeal quashed the conviction: the deception of the solicitor was a serious matter, they said, making it impossible for him to give D the best advice, and the judge should have exercised his discretion to exclude the evidence.
R v Miller (1992) Times 24/12/92, CA
A man D was charged with murder, and the evidence against him included his confession. When interviewed by the police he had denied his involvement more than three hundred times, but in the face of “questioning” that took the form of officers’ repeatedly shouting at him what they wanted him to say, he eventually gave way and admitted that he might have been there but could not remember. The Court of Appeal quashed his conviction on the grounds that the confession had been obtained by undoubted oppression: short of physical violence it was hard to imagine a more hostile and intimidating approach. There was evidence that D had a mental age of only 11, but the tenor and length of the interviews was such that they would have been oppressive even with a person of normal mental capacity.
R v B (A-G’s Ref. No.3 of 1999) (2000) Times 15/12/00, HL
A man B was charged with rape after the police found a match between DNA taken from the scene and a sample of B’s DNA, which they had taken on an earlier occasion but had not subsequently destroyed as the law then required.The judge refused to allow any DNA evidence to be given and the trial collapsed; the Court of Appeal said the judge had been right, but the House of Lords adopted a different reading of PACE and said the judge could have exercised his discretion to allow it. The fairness of a trial has to take account of fairness to the victim and to the public at large, as well as to the defendant.

Trial by jury (in criminal cases) allows the jury to do justice as it sees it, irrespective of the substantive rules of law, but the jury is not required to explain its decision and may in fact decide on the basis of the lawyer’s appearance or manner or some other irrelevant factor.

R v Ponting [1985] Crim LR 318, McCowan J
D was a civil servant working in the Ministry of Defence, and saw documents indicating that the Government had lied in their account of the sinking of the General Belgrano during the Falklands War. He gave copies of these documents to an Opposition MP so that the matter could be raised in Parliament, and was charged with an offence against the Official Secrets Act. In spite of the judge’s clear direction that D’s conduct did amount to an offence, the jury acquitted him and he walked free.
R v Wilson (1996) unreported
Four women were acquitted by a jury at Liverpool Crown Court after causing £1½m worth of damage to a Hawk fighter jet. Their defence was that the jet was to be sold to Indonesia, where it would be used against the people fighting for independence in East Timor: their action was thus the prevention of the greater crime of genocide.
R v Blythe (1998) unreported
A man D was charged with cultivating cannabis with intent to supply it to his terminally ill wife W, who suffered severe pain from multiple sclerosis. Judge Hale told the jury at Warrington that the defence of duress of circumstances was not available in such a case, even though D feared W might commit suicide, but the jury disregarded this instruction and found D not guilty. D was convicted of simple possession and fined £100.

The House of Lords may use its powers under the Practice Statement 1966 to depart from an earlier decision which seems to lead to an injustice.

R v G & R [2003] 4 All ER 765, HL
Boys aged 11 and 12 were convicted of arson, the judge having ruled (following R v Caldwell [1981] 1 All ER 961, HL that recklessness was based on a risk obvious to a reasonable person rather than to a typical 12-year-old. The House of Lords departed from its decision in Caldwell and said the test is a subjective one: to make no allowance for a defendant’s youth or mental incapacity would violate the principle that no one should be convicted of a serious offence unless he acted with guilty intent. It is clearly blameworthy to take an obvious and significant risk of causing injury to another, said Lord Bingham, but it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication) one genuinely does not perceive the risk.
A v Hoare [2008] UKHL 6
In 1989 the defendant D was convicted of rape and sent to prison. In 2004, having been released on licence, D won £7 million on the National Lottery, and later that year the claimant A began an action seeking damages for the rape. Her claim was struck out: the cause of action had arisen at the time of the rape, said the judge, and since the claim had not been brought until some sixteen years later it was barred by s.2 of the Limitation Act 1980. The House of Lords had decided in Stubbings v Webb [1993] 1 All ER 322 that the shorter three-year time limit in s.11, which the judge has the power to disapply under s.33, applied only to claims in negligence and similar breach of duty and not to claims for assault. The fact that D had not hitherto been worth suing was irrelevant. After considering the legislative history and the evident injustice arising from their earlier decision, the House of Lords exercised its power under the 1966 Practice Statement to depart from its own previous decision and remitted the case to the judge so that he could decide whether or not to exercise his discretion to allow Mrs A’s claim to proceed.

SUBSTANTIVE JUSTICE

Many of the substantive rules of English law try to achieve substantive justice (according to at least one definition of that term), and many (but not all) succeed.

In criminal law, the mandatory life sentence for murder is a matter of treating like cases alike, except that not all murders are alike; is the Parole Board’s power to order the release on licence of those who have served the “minimum term” sufficient to ensure justice? The Criminal Justice Act 2003 sets predetermined minimum terms for various classes of murder, but allows the judge to set a different minimum so long as he gives reasons for doing so.

The partial defences such as diminished responsibility and provocation are intended to do justice, so that those who kill while not fully responsible for their actions are not convicted of murder, but the defences of necessity (now duress of circumstances) and duress are not available in cases of murder or attempted murder. The Law Commission have commented on the way that the defence of diminished responsibility is sometimes allowed in cases not strictly meeting the statutory definition, but have said thatwhile the mandatory life sentence for murder remains, they “are not persuaded that the acknowledged infelicities of the current formulation presently cause injustice in practice”.

R v Dudley & Stephens (1884) LR 14 QBD 273, CCR
Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, Dudley and Stephens decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Four days later they were picked up by a passing ship, and on returning to England were convicted of murder. The Court for Crown Cases Reserved upheld their conviction, but their sentence of death was later commuted to six months’ imprisonment.
R v Price (1971) unreported
A boy of six had the mental capacity of a baby and a short life expectancy. His father D placed the boy in a river and watched him float away; the boy drowned. D pled guilty to manslaughter on the basis of diminished responsibility, and was put on probation for a year on condition that he underwent “such treatment as a doctor may prescribe for the next few weeks or so”.
R v Whitfield (1976) 63 Cr App R 39, CA
Following a long series of family quarrels, including a threat to take away the baby, D killed his wife and her sister. He was charged with murder and claimed provocation, but the judge withdrew this question from the jury. The Court of Appeal quashed D’s conviction for murder and substituted one for manslaughter: it is clear that any conduct (including mere words) can in principle amount to provocation.
R v English (1981) unreported
A woman who killed was allowed to bring evidence to show that pre-menstrual tension had impaired her responsibility sufficiently for this defence to be admitted.
R v Howe [1987] 1 All ER 771, HL
D took part with others in two separate murders, and on a third occasion the intended victim escaped. D’s claim to have acted under duress was left to the jury on two of the three counts, but D was convicted on all three, and appealed. The House of Lords said no participant (whether principal or accessory) can claim duress in defence to a murder charge. The law should deny a man the right to take an innocent life even at the price of his own (per Lord Griffiths), but should rather set a standard of heroism and self-sacrifice which ordinary men and women should be expected to observe (per Lord Hailsham).
R v Ahluwalia [1992] 4 All ER 889, CA
A woman D had entered into an “arranged marriage” and had been very badly treated by her husband. He had been violent and abusive towards her; he had threatened to kill her and had once tried to run her down; and he had taunted her about his affair with another woman. One evening D poured petrol over his bed as he slept and set light to it. The Court of Appeal quashed D’s original conviction for murder, and at the retrial D’s plea of diminished responsibility resulting from the newly-acknowledged “battered woman syndrome” was accepted.
R v Morhall [1995] 3 All ER 659, HL
A habitual glue-sniffer D killed another man V who nagged him about his habit. D was charged with murder and claimed he had been provoked. Allowing his appeal and substituting a conviction for manslaughter, the House of Lords said there is no rule to prevent a defendant’s relying on a self-induced condition such as drug addiction (or even previous criminal convictions) as characteristics of the ordinary person where these are relevant to the provocation.

The proportionality of sentencing raises other questions as to the extent to which justice is served by the criminal law. Mandatory minimum sentences present particular problems, because there may be cases in which the mandatory sentence would actually be unjust. In an article in The Times in March 1997, Sir Stephen Tumim (formerly HM Inspector of Prisons) quoted Judge F-K Fährig (Presiding Judge at the Berlin District Court) as saying that the suffering imposed on the defendant should not outweigh the suffering of the victim.

R v Cannings (2002) unreported
A woman D convicted of killing her two baby sons was convicted of murder, having denied the killing and having thus excluded the possibility of a verdict of infanticide. Sentencing her to imprisonment for life, Hallett J said this was “a classic example of the kind of injustice that can result from mandatory sentencing”. [The conviction itself was later quashed on appeal.]

In the law of tort, a duty of care is imposed only if it is fair just and reasonable to do so. If (in the judge’s opinion) it would be unjust to impose such a duty, he says there is no duty.

But the standard of care demanded may be higher than the defendant could reasonably achieve.

Nettleship v Weston [1971] 3 All ER 581, CA
A learner driver D went out for her first lesson, supervised by a friend P. D crashed the car into a lamppost, and P was injured. P’s claim for damages was upheld by the Court of Appeal, subject to a deduction for contributory negligence. Even learner drivers, said the Court, are to be judged against the standard of the reasonably competent driver. The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard. [This decision was made primarily to ensure that the driver’s insurance company (which had plenty of money) would compensate the injured victim (who had comparatively little). Was this justice?]
Snelling v Whitehead (1975) Times 31/7/75, HL
A 7-year-old boy P riding his bicycle on a minor road towards a crossroads was seriously injured in a collision with a car driven by D along the major road. Reluctantly rejecting P’s claim for compensation, the House of Lords said there was no proof that the driver had been negligent, and in the absence of such proof the claim must fail. Lord Wilberforce suggested this was a case where no-fault compensation would be appropriate, but that was a matter for Parliament.
Barrett v Ministry of Defence [1995] 3 All ER 87, CA
A sailor S became so drunk one night that he passed out and, having then been inadequately treated, choked to death on his own vomit. His widow P sued the Navy for their negligence. The Court of Appeal reversed the trial judge’s finding that DD had a duty of care to prevent S becoming drunk, applying the test of whether it was just and reasonable to impose a duty of care. I can see no reason, said Beldam LJ, why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No one is better placed to judge the amount the he can safely consume or to exercise control in his own interest as well as the interest of others.

In contract law, the doctrine of frustration deals with unforseen contingencies that occur after agreement, preventing the completion of the contract. In such circumstances, the contract is terminated and the court has power to order repayment where appropriate.

Herne Bay Steamboat v Hutton [1903] 2 KB 683, CA
An agreement was made that PP’s ship would be at DD’s disposal on a certain date “for the purpose of viewing the naval review and for a day’s cruise around the fleet”. On the day in question, the fleet was assembled but the royal review was cancelled because of the King’s illness. The Court of Appeal said the contract had not been frustrated, because the review was not the sole foundation of the agreement and the cruise around the fleet could still have taken place.
Krell v Henry [1903] 3 KB 740, CA
D agreed to hire briefly from P a flat in Pall Mall, intending to use it with friends to watch the coronation procession as it passed. The coronation was postponed at short notice owing to the King’s illness, but P sought to recover the agreed hiring fee. The Court of Appeal turned down the claim and said the contract had been frustrated; although the purpose of the hire had not been stipulated in the contract, the circumstances were such that both parties clearly knew it, and the sole foundation of the contract had been destroyed.

Equity was developed to enable the courts to do justice where the common law prevented it, by recognising new rights such as the rights of a beneficiary under a trust, and new remedies such as the injunction and the order for specific performance.

Central London Property v High Trees House [1956] 1 All ER 256, Denning J
A landlord sought to renege on an undertaking to accept a redfuced rent during the second world war. Denning J said that when a party to a contract makes a promise to the other, which he knows will be acted on, that he will not enforce his strict legal rights, the equitable principle of promissory estoppel makes that promise binding on him.
Re Posner [1953] 1 All ER 1123, Karminski J
A man T left his property in his will to “my wife Rose Posner”. In fact she was not legally his wife, having been already married when she met and “married” T, but the court said the will could be rectified and the words “my wife” ignored so that she could inherit.
Beswick v Beswick [1967] 2 All ER 1197, HL
The elderly owner of a small business agreed to transfer the business to his nephew, in return for which the nephew promised to pay an annuity to the man’s widow after his death. The man died and the nephew refused to pay. The widow could not sue in her own right, because she was not privy to the contract, so she sued as the executrix of her husband’s estate. Damages would not have been a satisfactory remedy, because the loss to the estate was negligible, so she was granted an order directing the nephew to perform his part of the contract.
Eves v Eves [1975] 3 All ER 768, CA
An unmarried couple set up home together and had two children. A house was bought in the man D’s name because P was under 21; he said (probably falsely) that he would have put it in their joint names had she been of age. The house was in a run-down condition, and P did a lot of heavy building work. After three years, D left to live with another woman. P sought and was granted a declaration that the house was held on a constructive trust for both of them; the work she had done, coupled with D’s representations, entitled her to a quarter-share in its value.
Miller v Jackson [1977] 3 All ER 338, CA
Cricket had been played on a village cricket ground since 1905. In 1970 a number of new houses were built close to the cricket ground, and P bought one of them in 1972. On a number of occasions, cricket balls were hit into P’s garden, and P sued the cricket club in negligence and nuisance, claiming actual damage to property and fear of personal injury. The Court of Appeal by a majority (Lord Denning MR dissenting) said P should succeed; it was no defence that she had come to the nuisance rather than vice versa. But no injunction should issue (i) because DD’s activities were socially beneficial and (ii) because P had come to the nuisance with her eyes open. Damages of £400 were awarded instead to cover both past and future inconvenience.
Bloomsbury & Rowling v News Group & others [2003] EWHC 1205 (Ch)
Following a pre-publication threat to disclose an important plot development, Sir Andrew Morritt VC granted an injunction against “the [unknown] person or persons who have offered the publishers of The Sun … a copy of “Harry Potter and the Order of the Phoenix” … and the person or persons who has or have physical possession of a copy …”, restraining them from disclosing without permission any information derived from the book. There was no precedent for an injunction that did not name any of the parties at whom it was directed, but making such an injunction caused no injustice, and not making it could cause considerable injustice to the claimants.

One particular area in which the law tries to achieve substantive justice is in the reduction of discrimination. Like cases should be treated alike, said Aristotle, Perelman, Hart and others, and different cases should often be treated differently. There should be no unwarranted discrimination on the basis of irrelevant factors, but differences between individuals should be properly taken into account when they are relevant.

Various Acts of Parliament therefore make it unlawful (usually in a civil rather than a criminal sense) to discriminate on the grounds of a person’s gender, race, religion or sexual orientation in matters relating to employment, education or the provision of services, or on grounds of age in matters relating to employment, unless a particular gender, race &c is a “genuine occupational requirement”. Other Acts require employers and providers of education and other services to make reasonable adjustments to their premises and working practices to meet the needs of disabled people.

Blathwayt v Cawley [1975] 3 All ER 625, HL
A man T made a well which left substantial property on trust to C for life and then to C’s sons, on condition that they were not and did not become Roman Catholic. T died and the property passed to C, who subsequently joined the Roman Catholic church. In a judgment based mainly on technical matters, the House of Lords said obiter that the public policy against religious discrimination must give way to the principle of testamentary freedom.
Singh v Rowntree Mackintosh [1979] ICR 554, EAT
A Sikh S was refused employment in a chocolate factory because of his unwillingness to remove his beard. The Industrial Tribunal found for RM, saying the public interest that hygiene rules should be enforced outweighed the public interest in preventing discrimination. The Appeal Tribunal agreed, and said the standard required for justification fell somewhere between necessity and mere convenience.
Ahmad v United Kingdom (1981) 4 EHRR 126, EComHR
A Muslim teacher A applied for time off on Friday afternoons and on certain other occasions to take part in religious observances, but was refused. He complained this was a violation of his freedom of religion, but the Commission disagreed: the evidence was that teachers of other religions would have been similarly treated, and the refusal was reasonable.
Gill v El Vino [1983] 1 All ER 398, CA
A wine bar EV operated a rule that women were served drinks only when sitting at tables, not at the bar. Allowing Ms G’s appeal from the County Court judge, the Court of Appeal said this was discriminatory. The different treatment was more than trivial: women were deprived of the conversation and social flexibility of the bar area.
James v Eastleigh BC [1990] 2 All ER 607, HL
A local authority EBC granted free admission to the public swimming baths to men and women of pensionable age. Since the statutory retirement age was 60 for women and 65 for men, the House of Lords held this was discriminatory against men. The test, said Lord Goff, is whether the complainant would have received the same treatment but for his or her sex; the discriminator’s motive is irrelevant.
B v B (Custody &c) [1991] 1 FLR 402, Judge Callman
A mother M left home to live with another woman, taking her two-year-old son B with her but leaving the two older children with their father F and his new (female) partner. The judge awarded F custody of the older children (who were happy with him) but gave B to M. What is so important, said the judge, is to distinguish between militant lesbians who try to convert others to their way of life, and lesbians in private. In this case there was no evidence to support the suggestion that B’s own sexual identity would be influenced by M’s lesbianism, which she did not parade openly, and the possible social stigma was outweighed by the fact that M had cared for him ever since he was born.
Fitzpatrick v Sterling Housing Association [1999] 4 All ER 705, HL
Reversing the Court of Appeal, the House of Lords held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing Act 1988. Lord Slynn said the legislation could not be interpreted to allow P’s claim on the basis that he had been living “as the husband or wife” of the deceased – if Parliament had intended such a relationship to include same-sex partners it would surely have said so – but P could claim as “a member of the family” living with the deceased at the time of his death. The word “family” is used in many senses, he said, some wider than others, and if P could show (as on the facts he could) the mutual inter-dependence, sharing of lives, caring and love, commitment and support that are rebuttably presumed to exist between married couples, that would be enough to establish a family relationship.
Meikle v Nottinghamshire CC [2004] EWCA Civ 859
A long-serving home economics teacher began to suffer from deteriorating eyesight. She asked the school to make allowance for this, for example by supplying her with a large-print version of the daily bulletin, by reducing the distance she had to move between classrooms, and by increasing her non-contact time so that she could do her marking and lesson preparation in daylight, but they did not do so. The Court of Appeal upheld her claim that this amounted to unlawful discrimination because of her disability: there were reasonable adjustments the school could have made, and they had not done so.

There will always be some miscarriages of justice – it is statistically unavoidable – in which the legal system reaches the wrong result. In criminal law, innocent people are sometimes convicted, and guilty people are often acquitted. There is an appeal system so that some of the wrongful convictions can be put right, but there are serious doubts about its effectiveness. For example, Timothy Evans was hanged in 1950 after being convicted of murder; the real murderer was identified shortly afterwards, and Evans was pardoned (posthumously) in 1966. Mahmood Hussein Mattan and Derek Bentley were hanged for separate murders in 1952; their convictions were eventually quashed by the Court of Appeal in 1998. In other cases, wrongful convictions have not been corrected until the defendants have spent long periods in prison: again in 1998 the Court of Appeal quashed Patrick Nicholls’ 1975 conviction for murder and thereby terminated a sentence of life imprisonment after hearing new pathological evidence that the victim had died from natural causes.

The Criminal Appeals Act 1995 tried to rectify some of the shortcomings of the system: under s.2(1) of this Act the Court of Appeal should allow an appeal if it thinks the conviction is “unsafe”, regardless of technicalities. In the past, however, the Court of Appeal have been very reluctant to interfere with the jury’s verdict: the jury have seen the witnesses’ behaviour in the witness box, and twelve jurors are as good as three judges in deciding who is telling the truth.

The Criminal Justice Act 2003 introduced several changes designed to assist substantive justice by reducing the number of wrongful acquittals. Part 10 of the Act abolished the “double jeopardy” rule so as to allow an acquitted person to be retried if new and compelling evidence comes to light, and Part 11 modified the rules of evidence to widen the circumstances in which “bad character” and hearsay evidence can be admitted. These changes will almost inevitably reduce the number of wrongful acquittals but increase the number of wrongful convictions.

R v McIlkenny [1992] 2 All ER 417, CA
DD were convicted of terrorist offences in 1975 and were sentenced to life imprisonment, but in 1991 it emerged (largely through investigative journalism) that the scientific evidence against them had been flawed and that their so-called “confessions” had been forged by police officers. Quashing their convictions, the Court of Appeal said no system is better than its human input. Like any other system of justice, the adversarial system may be abused. The evidence adduced may be inadequate. Expert evidence may not have been properly researched or there may have been a deliberate attempt to undermine the system by giving false evidence. If there is a conflict of evidence there is no way of ensuring the jury will always get it right … No human system can expect to be perfect.

Feminism

Posted in Uncategorized by drsivalaw on February 25, 2010

Feminist political philosophy is an area of philosophy focused on understanding and critiquing the way political philosophy is usually construed, often without any attention to feminist concerns, and to articulating how political theory might be reconstructed in a way that advances feminist concerns. Feminist political philosophy is a branch of both feminist philosophy and political philosophy. As a branch of feminist philosophy, it serves as a form of critique or a hermeneutics of suspicion (Ricœur 1970). That is, it serves as a way of opening up or looking at the political world as it is usually understood and uncovering ways in which women and their current and historical concerns are poorly depicted, represented, and addressed. As a branch of political philosophy, feminist political philosophy serves as a field for developing new ideals, practices, and justifications for how political institutions and practices should be organized and reconstructed. While feminist philosophy has been instrumental in critiquing and reconstructing many branches of philosophy, from aesthetics to philosophy of science, feminist political philosophy may be the paradigmatic branch of feminist philosophy because it best exemplifies the point of feminist theory, which is, to borrow a phrase from Marx, not only to understand the world but to change it (Marx and Engels 1998). And, though other fields have effects that may change the world, feminist political philosophy focuses most directly on understanding ways in which collective life can be improved. This project involves understanding the ways in which power emerges and is used or misused in public life (see the entry on feminist perspectives on power). As with other kinds of feminist theory, common themes have emerged for discussion and critique, but there has been little in the way of consensus among feminist theorists on what is the best way to understand them. This introductory article lays out the various schools of thought and areas of concern that have occupied this vibrant field of philosophy for the past thirty years.

1. Historical Context

Current feminist political philosophy is indebted to the work of earlier generations of feminist scholarship and activism, including the first wave of feminism in the English-speaking world, which took place from the 1840s to the 1920s and focused on improving the political, educational, and economic system primarily for middle-class women. Its greatest achievements were to develop a language of equal rights for women and to garner women the right to vote. It is also indebted to the second wave of feminism, which, beginning in the 1960s, drew on the language of the civil rights movements (e.g., the language of liberation) and on a new feminist consciousness that emerged through women’s solidarity movements and new forms of reflection that uncovered sexist attitudes and impediments throughout the whole of society. As the entry on approaches to feminism notes, by 1970 feminism had expanded from activism to scholarship with the publication of Shulamith Firestone’s The Dialectic of Sex (Firestone 1971); Kate Millett’s Sexual Politics (Millett 1970); and Robin Morgan’s Sisterhood is Powerful (Morgan 1970).

As a branch of political philosophy, feminist political philosophy has often mirrored the various divisions at work in political philosophy more broadly. Prior to the fall of the Berlin Wall and the end of the Cold War, political philosophy was usually divided into categories such as liberal, conservative, socialist, and Marxist. Except for conservatism, for each category there were often feminists working and critiquing alongside it. Hence, as Alison Jaggar’s classic text, Feminist Politics and Human Nature, spelled out, each ideological approach drew feminist scholars who would both take their cue from and borrow the language of a particular ideology (Jaggar 1983). Jaggar’s text grouped feminist political philosophy into four camps: liberal feminism, socialist feminism, Marxist feminism, and radical feminism. The first three groups followed the lines of Cold War global political divisions: American liberalism, European socialism, and a revolutionary communism (though few in the west would embrace Soviet-style communism). Radical feminism was the most indigenous of the feminist philosophies, developing its own political vocabulary with its roots in the deep criticisms of patriarchy that feminist consciousness had produced in its first and second waves. Otherwise, feminist political philosophy largely followed the lines of traditional political philosophy. But this has never been an uncritical following. As a field bent on changing the world, even liberal feminist theorists tended to criticize liberalism more than to embrace it, and to embrace socialism and other more radical points of view more than to reject them. Still, on the whole, these theorists generally operated within the language and framework of their chosen approach to political philosophy.

Political philosophy began to change enormously in the 1980s, just before the end of the Cold War, with a new invocation of an old Hegelian category: civil society, an arena of political life intermediate between the state and the household. This was the arena of associations, churches, labor unions, book clubs, choral societies and manifold other nongovernmental yet still public organizations. In the 1980s political theorists began to turn their focus from the state to this intermediate realm, which suddenly took center stage in Eastern Europe in organizations that challenged the power of the state and ultimately led to the downfall of communist regimes.

After the end of the Cold War, political philosophy along with political life radically realigned. New attention focused on civil society and the public sphere, especially with the timely translation of Jürgen Habermas’s early work, the Structural Transformation of the Public Sphere (Habermas 1989). Volumes soon appeared on civil society and the public sphere, focusing on the ways in which people organized themselves and developed public power rather than on the ways that the state garnered and exerted its power. In fact, there arose a sense that the public sphere ultimately might exert more power than the state, at least in the fundamental way in which public will is formed and serves to legitimate—or not—state power. In the latter respect, John Rawls’s work was influential by developing a theory of justice that tied the legitimacy of institutions to the normative judgments that a reflective and deliberative people might make (Rawls 1971). By the early 1990s, Marxists seemed to have disappeared or at least become very circumspect (though the downfall of communist regimes needn’t have had any effect on Marxist analysis proper, which never subscribed to Leninist or Maoist thought). Socialists also retreated or transformed themselves into “radical democrats.”

Now the old categories of liberal, socialist, and Marxist feminisms were much less relevant. Along with political philosophy more broadly, more feminist political philosophers began to turn to the meaning and interpretation of civil society, the public sphere, and democracy itself.

2. Contemporary Approaches and Debates

Of Jaggar’s categories, liberal feminism and radical feminism remain strong currents in feminist political thought. Care ethics, which was originally developed as an alternative to mainstream ethical theory, has been harnessed to counter liberal political theory (Gilligan 1982; Held 1995). More recently, two other approaches have emerged: radical democratic or “agonistic” feminism (Mouffe 1992, 1993, 1999, 2000) and deliberative or communicative democratic theory (Benhabib 1992, 1996; Benhabib and Cornell 1987; Fraser 1989; Young 1990, 1997, 2000). An even newer approach that might be termed “performative” is also developing (Zerilli 2005; Cornell 1998). This section gives a brief overview of these various approaches and attendant issues.

2.1 Liberal Feminism

The first of these, liberal feminism, can be traced back to feminist efforts and theorizing around political and economic equality for women. This approach got a boost with the publication of John Rawls’s A Theory of Justice (Rawls 1971) and subsequently his Political Liberalism (Rawls 1993). Susan Moller Okin (Okin 1989, 1979; Okin et al. 1999) and Eva Kittay (Kittay 1999) have used Rawls’s work productively to extend his theory to attend to women’s concerns. From a more critical perspective, several feminist theorists have argued that some of the central categories of liberalism occlude women’s lived concerns; for example, the central liberal private/public distinction sequesters the private sphere, and any harm that may occur there to women, away from political scrutiny (Pateman 1983). Perhaps more than any other approach, liberal feminist theory parallels developments in liberal feminist activism. While feminist activists have waged legal and political battles to criminalize, as just one example, violence against women (which previously, in marital relations, hadn’t been considered a crime), feminist political philosophers who have engaged the liberal lexicon have shown how the distinction between private and public realms has served to uphold male domination of women by rendering power relations within the household as “natural” and immune from political regulation. Such political philosophy uncovers how seemingly innocuous and “commonsensical” categories have covert power agendas. For example, old conceptions of the sanctity of the private space of the household and the role of women primarily as child-bearers and caregivers served to protect male domination of women in the household from public scrutiny. Feminist critiques of the public/private split supported legal advances that finally led in the 1980s to the criminalization in the United States of spousal rape (Hagan and Sussman 1988).

2.2 Radical Feminism

A second approach, radical feminism, remains committed to getting at the root of male domination by understanding the source of power differentials, which some radical feminists, including Catharine MacKinnon, trace back to male sexuality and the notion that heterosexual intercourse enacts male domination over women. “Women and men are divided by gender, made into the sexes as we know them, by the requirements of its dominant form, heterosexuality, which institutionalizes male sexual dominance and female sexual submission. If this is true, sexuality is the linchpin of gender inequality” (MacKinnon 1989,113). Radical feminists tend to see power as running one-way, from those with power over those who are being oppressed. As Amy Allen puts it, “Unlike liberal feminists, who view power as a positive social resource that ought to be fairly distributed, and feminist phenomenologists, who understand domination in terms of a tension between transcendence and immanence, radical feminists tend to understand power in terms of dyadic relations of dominance/subordination, often understood on analogy with the relationship between master and slave.” (See the section on radical feminist approaches in the entry on feminist perspectives on power.) Unlike the more reformist politics of liberal feminism, radical feminists have largely sought to reject the prevailing order altogether, sometimes advocating separatism (Daly 1985, 1990).

2.3 Maternal Feminism

A third important approach in feminist political philosophy draws on what is called care or maternal ethics. (See the discussion in the entry on feminist ethics.) Drawing on feminist research in moral psychology (Gilligan 1982; Held 1995), this field explores the ways in which the virtues that society and mothering cultivate in women can provide an alternative to the traditional emphases in moral and political philosophy on universality, reason, and justice. Some maternalists have sought to take the virtues that had long been relegated to the private realm, such as paying particular attention to those who are vulnerable or taking into consideration circumstances and not just abstract principles, and use them as well in the public realm. This approach has led to intense debates between liberals who advocated universal ideals of justice and maternalists who advocated attention to the particular, to relationships, to care. By the 1990s, though, many maternalists had revised their views. Rather than seeing care and justice as mutually exclusive alternatives, they began to recognize that attention to care should be accompanied by attention to fairness (justice) in order to attend to the plight of those with whom we have no immediate relation (Koggel 1998).

The maternalist approach raises the question of whether and, if so, how women have distinct virtues. Feminists as a whole have long distanced themselves from ideas that women have any particular essence, choosing instead to see femininity and its accompanying virtues as social constructs, dispositions that result from culture and conditioning, certainly not biological givens. So for maternalists to champion the virtues that have inculcated femininity seems also to champion a patriarchal system that relegates one gender to the role of caretaker. The maternalist tactic has largely been to flip the hierarchy, to claim that the work of the household is more meaningful and sustaining than the work of the polis. But critics, such as Drucilla Cornell, Mary Dietz, and Chantal Mouffe, argue that such a revaluation keeps intact the dichotomy between the private and the public and the old association of women’s work with childcare. (Butler and Scott 1992; Phillips and NetLibrary Inc 1998, pp. 386-389)

Such concerns are part of a larger set of concerns and criticisms that have run through feminist theorizing since the 1970s, with non-white, non-middle-class, and non-American women starting to question the very category of “woman” and the notion that this title could be a boundary-spanning category that could unite women of various walks of life. (See the entries on identity politics and feminist perspectives on sex and gender.) Criticisms of a unitary identity of “woman” have been motivated by worries that much feminist theory has originated from the standpoint of a particular class of women who mistake their own particular standpoint for a universal one. In her 1981 book, Ain’t I a Woman?: Black women and feminism, bell hooks notes that the feminist movement pretends to speak for all women but was made up of primarily white, middle class women who, because of their narrow perspective, did not represent the needs of poor women and women of color and ended up reinforcing class stereotypes (hooks 1981). What is so damning about this kind of critique is that it mirrors the one that feminists have leveled against mainstream political theorists who have taken the particular category of men to be a universal category of mankind, a schema that does not in fact include women under the category of mankind but marks them as other.

Hence, one of the most vexing issues facing feminist theory in general and feminist political philosophy in particular is the matter of identity (see the entry on identity politics). Identity politics in general is a controversial political practice of mobilizing for change on the basis of a political identity (women, black, chicana, etc.). The philosophical debate is whether such identities are based on some real difference or history of oppression, and also whether people should embrace identities that have historically been used to oppress them. Identity politics in feminist practice is fraught along at least two axes: whether there is any real essence or identity of woman in general and even if so whether the category of woman could be used to represent all women. Women at the intersection of various identities (e.g, black women) have raised questions about which identity is foremost or whether either identity is apt. Such questions play out with the question of political representation—what aspects of identity are politically salient and truly representative, whether race, class, or gender (Phillips 1995; Young 1997, 2000). The ontological question of women’s identity gets played out on the political stage when it comes to matters of political representation, group rights, and affirmative action. The 2008 U.S. Democratic Party primary battle between Senators Barack Obama and Hillary Clinton turned this philosophical question into a very real and heated one from black women throughout the United States. Was a black woman who supported Clinton a traitor to her race, or a black woman who supported Obama a traitor to her sex? Or did it make any sense to talk about identity in a way that would lead to charges of treason? Of the approaches discussed above, radical and maternal feminism seem particularly wedded to feminist identity politics.

2.4 Democratic Feminism

Fourth is feminist democratic theory, perhaps best known through the works of Seyla Benhabib (Benhabib 1992, 1996), greatly inspired by the work of the German critical theorist, Jürgen Habermas. Like other feminist democratic theorists, Benhabib’s work engages democratic theorists quite broadly, not just feminist theorists. This passage of hers helps to clarify what she takes to be the best aim of a political philosophy: a state of affairs to which all affected would assent. As she writes,

Only those norms (i.e., general rules of action and institutional arrangements) can be said to be valid (i.e., morally binding), which would be agreed to by all those affected by their consequences, if such agreement were reached as a consequence of a process of deliberation that had the following features: 1) participation in such deliberation is governed by norms of equality and symmetry; all have the same chances to initiate speech acts, to question, to interrogate, and to open debate; 2) all have the right to question the assigned topics of conversation; and 3) all have the right to initiate reflexive arguments about the very rules of the discourse procedure and the way in which they are applied or carried out. (Benhabib 1996, 70)

Democratic theorists such as Benhabib and Habermas contend that certain conditions need to be in place in order for members of a political community to arrive at democratic outcomes, namely the proceedings need to be deliberative. Some take deliberation to be a matter of reasoned argumentation; others see it as less about reason or argumentation but more about an open process of working through choices. (McAfee 2004.)

Deliberative theory is not the only prominent form of feminist democratic theory. Iris Young’s pioneering book, Justice and the Politics of Difference and several of her subsequent works have been very influential and have led to a good deal of hesitance in feminist theoretical communities about the claims of deliberative theory. Where Benhabib is confident that conditions can be such that all who are affected can have a voice in deliberations, Young points out that those who have been historically silenced have a difficult time having their views heard or heeded. Young is skeptical of the claims of mainstream democratic theory that democratic deliberative processes could lead to outcomes that would be acceptable to all (Young 1990, 1997). Young, along with Nancy Fraser (Fraser 1989) and others, worried that in the process of trying to reach consensus, the untrained voices of women and others who have been marginalized would be left out of the final tally. Young’s criticisms were very persuasive, leading a generation of feminist political philosophers to be wary of deliberative democratic theory. Instead of deliberative democracy, in the mid 1990s Young proposed a theory of communicative democracy, hoping to make way for a deliberative conception that was open to means of expression beyond the rational expression of mainstream deliberative democratic theory. Young worried that deliberation as defined by Habermas is too reason-based and leaves out forms of communication that women and people of color tend to use, such as greeting, rhetoric, and storytelling. Young argued that these alternative modes of communication, modes that women and people of color and other marginalized people tended to use, could provide the basis of a more democratic, communicative theory. In her last major book, Inclusion and Democracy (Young 2000), Young had clearly moved to embrace deliberative theory itself, seeing the ways in which it could be constructed to give voice to those who had been otherwise marginalized. More recent feminist democratic theory has engaged deliberative theory more positively. (See McAfee and Snyder 2007.)

2.5 Agonistic Feminism

A fifth approach is agonistic feminism, which draws from a certain reading of the work of Hannah Arendt and from Antonio Gramsci, among others. Leading theorists of this approach include Chantal Mouffe (Critchley and Mouffe 1996; Laclau and Mouffe 1985, 2001; Mouffe 1979, 1992, 1993, 1999, 2000, 2005), Bonnie Honig (Honig 1993, 1995, 2001; Honig and Mapel 2002), and Ewa Ziarek (Ziarek 2001). Where liberal feminists inspired by John Rawls and democratic feminists inspired by Jürgen Habermas and/or John Dewey hold out the hope that democratic deliberations might lead to democratic agreements, agonistic feminists maintain that any kind of agreement is inherently undemocratic.

Agonistic feminist political philosophy comes out of poststructural continental feminist and philosophical traditions. It takes from Marxism, especially western Marxism, the hope for a more radically egalitarian society. It takes from contemporary continental philosophy notions of subjectivity and solidarity as malleable and constructed. Along with much of postmodern thought, it repudiates any notion of pre-existing moral or political truths or foundations. Its central claim is that feminist struggle, like other struggles for social justice, is engaged in politics as battle or war. Agonistic views see the nature of politics as inherently conflictual, with battles over power and hegemony being the central tasks of democratic struggle. Advocates of agonistic politics worry that the kind of consensus sought by democratic theorists (discussed above) will lead to some kind of oppression or injustice by silencing new struggles. As Chantal Mouffe puts it, “We have to accept that every consensus exists as a temporary result of a provisional hegemony, as a stabilization of power, and that it always entails some form of exclusion” (Mouffe 2000, 104).

2.6 Performative Feminism

A sixth approach to feminist political philosophy is emerging, what could be called performative feminist political philosophy. Performative feminist politics doesn’t worry about whether it is possible to come up with a single definition of “woman” or any other political identity; it sees identity as something that is performatively created. “How we assume these identitites,” Drucilla Cornell writes, “is never something ‘out there’ that effectively determines who we can be as men and women—gay, lesbian, straight, queer, transsexual, transgender, or otherwise” (Cornell 2003, 144). It is something that is shaped as we live and externalize identities. From a performative feminist perspective, feminism is a project of anticipating and creating better political futures in the absence of foundations. As Linda Zerilli writes, “politics is about making claims and judgments—and having the courage to do so—in the absence of the objective criteria or rules that could provide certain knowledge and the guarantee that speaking in women’s name will be accepted or taken up by others” (Zerilli 2005, 179). Drawing on the works of Arendt, Butler, and Joan Copjec, Zerilli calls for a “freedom-centered feminism” that “would strive to bring about transformation in normative conceptions of gender without returning to the classical notion of freedom as sovereignty” that feminists have long criticized but found difficult to resist (ibid.).

In its feminist incarnations, this view also takes its cue from Judith Butler’s performative account of gender as well as Hannah Arendt’s concern with the anticipatory nature of rights, as well as other thinkers’ ideas, to describe an anticipatory ideal of politics. Linda Zerilli describes this kind of feminist politics as “the contingently based public practice of soliciting the agreement of others to what each of us claims to be universal” (Zerilli 2005, p. 173). From a performatve perspective, normative political claims appeal to other people, not to supposed truths or foundations.

This view recuperates many of the ideals of the Enlightenment—such as freedom, autonomy, and justice—but in a way that drops the Enlightenment’s metaphysical assumptions about reason, progress, and human nature. Instead of seeing these ideals as grounded in some metaphysical facts, this new view sees them as ideals that people hold and try to instantiate through practice and imagination. Where many ancient and modern ideals of politics were based on suppositions about the nature of reality or of human beings, contemporary political philosophies generally operate without supposing that there are any universal or eternal truths. Some might see this situation as ripe for nihilism, arbitrariness, or the exercise of brute power. The performative alternative is to imagine and try to create a better world by anticipating, claiming, and appealing to others that it should be so. Even if there is no metaphysical truth that human beings have dignity and infinite worth, people can act as if it were true in order to create a world in which it is seen to be so.

What Zerilli does with the concept of freedom, Drucilla Cornell does with the idea of autonomy. Her work in ethics and political philosophy is also in this vein, arguing for seeing old Enlightenment notions such as autonomy, dignity, and personhood, in a new performative capacity, as ideals that people aspire to rather than as moral facts waiting to be discovered, applied, or realized.

Peformative feminist political philosophy shares liberal feminism’s appreciation for Enlightenment ideals but in a way that is skeptical about foundations, just as agonistic feminism repudiates foundations. It has less in common with radical and maternalist feminisms for these very reasons.

In sum, feminist political philosophy is a still evolving field of thought that has much to offer mainstream political philosophy. In the past two decades it has come to exert a stronger influence over mainstream political theorizing, raising objections that mainstream philosophers have had to address, though not always very convincingly. And in its newest developments it promises to go even further.

Karl Popper – Intellectual Marxism

Posted in Uncategorized by drsivalaw on February 25, 2010

Karl Popper is generally regarded as one of the greatest philosophers of science of the 20th century. He was also a social and political philosopher of considerable stature, a self-professed ‘critical-rationalist’, a dedicated opponent of all forms of scepticism, conventionalism, and relativism in science and in human affairs generally, a committed advocate and staunch defender of the ‘Open Society’, and an implacable critic of totalitarianism in all of its forms. One of the many remarkable features of Popper’s thought is the scope of his intellectual influence.

1. Life

Karl Raimund Popper was born on 28 July 1902 in Vienna, which at that time could make some claim to be the cultural epicentre of the western world. His parents, who were of Jewish origin, brought him up in an atmosphere which he was later to describe as ‘decidedly bookish’. His father was a lawyer by profession, but he also took a keen interest in the classics and in philosophy, and communicated to his son an interest in social and political issues which he was to never lose. His mother inculcated in him such a passion for music that for a time he seriously contemplated taking it up as a career, and indeed he initially chose the history of music as a second subject for his Ph.D examination. Subsequently, his love for music became one of the inspirational forces in the development of his thought, and manifested itself in his highly original interpretation of the relationship between dogmatic and critical thinking, in his account of the distinction between objectivity and subjectivity, and, most importantly, in the growth of his hostility towards all forms of historicism, including historicist ideas about the nature of the ‘progressive’ in music. The young Karl attended the local Realgymnasium, where he was unhappy with the standards of the teaching, and, after an illness which kept him at home for a number of months, he left to attend the University of Vienna in 1918. However, he did not formally enrol at the University by taking the matriculation examination for another four years. 1919 was in many respects the most important formative year of his intellectual life. In that year he became heavily involved in left-wing politics, joined the Association of Socialist School Students, and became for a time a Marxist. However, he was quickly disillusioned with the doctrinaire character of the latter, and soon abandoned it entirely. He also discovered the psychoanalytic theories of Freud and Adler (under whose aegis he engaged briefly in social work with deprived children), and listened entranced to a lecture which Einstein gave in Vienna on relativity theory. The dominance of the critical spirit in Einstein, and its total absence in Marx, Freud and Adler, struck Popper as being of fundamental importance: the latter, he came to think, couched their theories in terms which made them amenable only to confirmation, while Einstein’s theory, crucially, had testable implications which, if false, would have falsified the theory itself.

Popper obtained a primary school teaching diploma in 1925, took a Ph.D. in philosophy in 1928, and qualified to teach mathematics and physics in secondary school in 1929. The dominant philosophical group in Vienna at the time was the Wiener Kreis, the circle of ‘scientifically-minded’ intellectuals focused around Moritz Schlick, who had been appointed Professor of the philosophy of the inductive sciences at Vienna University in 1922. This included Rudolf Carnap, Otto Neurath, Viktor Kraft, Hans Hahn and Herbert Feigl. The principal objective of the members of the Circle was to unify the sciences, which carried with it, in their view, the need to eliminate metaphysics once and for all by showing that metaphysical propositions are meaningless—a project which Schlick in particular saw as deriving from the account of the proposition given in Wittgenstein’s Tractatus. Although he was friendly with some of the Circle’s members and shared their esteem for science, Popper’s hostility towards Wittgenstein alienated Schlick, and he was never invited to become a member of the group. For his part, Popper became increasingly critical of the main tenets of logical positivism, especially of what he considered to be its misplaced focus on the theory of meaning in philosophy and upon verification in scientific methodology, and reveled in the title ‘the official opposition’ which was bestowed upon him by Neurath. He articulated his own view of science, and his criticisms of the positivists, in his first work, published under the title Logik der Forschung in 1934. The book—which he was later to claim rang the death knell for positivism—attracted more attention than Popper had anticipated, and he was invited to lecture in England in 1935. He spent the next few years working productively on science and philosophy, but storm clouds were gathering—the growth of Nazism in Germany and Austria compelled him, like many other intellectuals who shared his Jewish origins, to leave his native country.

In 1937 Popper took up a position teaching philosophy at the University of Canterbury in New Zealand, where he was to remain for the duration of the Second World War. The annexation of Austria in 1938 became the catalyst which prompted him to refocus his writings on social and political philosophy. In 1946 he moved to England to teach at the London School of Economics, and became professor of logic and scientific method at the University of London in 1949. From this point on Popper’s reputation and stature as a philosopher of science and social thinker grew enormously, and he continued to write prolifically—a number of his works, particularly The Logic of Scientific Discovery (1959), are now universally recognised as classics in the field. He was knighted in 1965, and retired from the University of London in 1969, though he remained active as a writer, broadcaster and lecturer until his death in 1994. (For more detail on Popper’s life, cf. his Unended Quest).

2. Backdrop to his Thought

A number of biographical features may be identified as having a particular influence upon Popper’s thought. In the first place, his teenage flirtation with Marxism left him thoroughly familiar with the Marxist view of economics, class-war, and history. Secondly, he was appalled by the failure of the democratic parties to stem the rising tide of fascism in his native Austria in the 1920s and 1930s, and the effective welcome extended to it by the Marxists. The latter acted on the ideological grounds that it constituted what they believed to be a necessary dialectical step towards the implosion of capitalism and the ultimate revolutionary victory of communism. This was one factor which led to the much feared Anschluss, the annexation of Austria by the German Reich, the anticipation of which forced Popper into permanent exile from his native country. The Poverty of Historicism (1944) and The Open Society and Its Enemies (1945), his most impassioned and brilliant social works, are as a consequence a powerful defence of democratic liberalism as a social and political philosophy, and a devastating critique of the principal philosophical presuppositions underpinning all forms of totalitarianism. Thirdly, as we have seen, Popper was profoundly impressed by the differences between the allegedly ‘scientific’ theories of Freud and Adler and the revolution effected by Einstein’s theory of relativity in physics in the first two decades of this century. The main difference between them, as Popper saw it, was that while Einstein’s theory was highly ‘risky’, in the sense that it was possible to deduce consequences from it which were, in the light of the then dominant Newtonian physics, highly improbable (e.g., that light is deflected towards solid bodies—confirmed by Eddington’s experiments in 1919), and which would, if they turned out to be false, falsify the whole theory, nothing could, even in principle, falsify psychoanalytic theories. These latter, Popper came to feel, have more in common with primitive myths than with genuine science. That is to say, he saw that what is apparently the chief source of strength of psychoanalysis, and the principal basis on which its claim to scientific status is grounded, viz. its capability to accommodate, and explain, every possible form of human behaviour, is in fact a critical weakness, for it entails that it is not, and could not be, genuinely predictive. Psychoanalytic theories by their nature are insufficiently precise to have negative implications, and so are immunised from experiential falsification.

The Marxist account of history too, Popper held, is not scientific, although it differs in certain crucial respects from psychoanalysis. For Marxism, Popper believed, had been initially scientific, in that Marx had postulated a theory which was genuinely predictive. However, when these predictions were not in fact borne out, the theory was saved from falsification by the addition of ad hoc hypotheses which made it compatible with the facts. By this means, Popper asserted, a theory which was initially genuinely scientific degenerated into pseudo-scientific dogma.

These factors combined to make Popper take falsifiability as his criterion for demarcating science from non-science: if a theory is incompatible with possible empirical observations it is scientific; conversely, a theory which is compatible with all such observations, either because, as in the case of Marxism, it has been modified solely to accommodate such observations, or because, as in the case of psychoanalytic theories, it is consistent with all possible observations, is unscientific. For Popper, however, to assert that a theory is unscientific, is not necessarily to hold that it is unenlightening, still less that it is meaningless, for it sometimes happens that a theory which is unscientific (because it is unfalsifiable) at a given time may become falsifiable, and thus scientific, with the development of technology, or with the further articulation and refinement of the theory. Further, even purely mythogenic explanations have performed a valuable function in the past in expediting our understanding of the nature of reality.

3. The Problem of Demarcation

As Popper represents it, the central problem in the philosophy of science is that of demarcation, i.e., of distinguishing between science and what he terms ‘non-science’, under which heading he ranks, amongst others, logic, metaphysics, psychoanalysis, and Adler’s individual psychology. Popper is unusual amongst contemporary philosophers in that he accepts the validity of the Humean critique of induction, and indeed, goes beyond it in arguing that induction is never actually used by the scientist. However, he does not concede that this entails the scepticism which is associated with Hume, and argues that the Baconian/Newtonian insistence on the primacy of ‘pure’ observation, as the initial step in the formation of theories, is completely misguided: all observation is selective and theory-laden—there are no pure or theory-free observations. In this way he destabilises the traditional view that science can be distinguished from non-science on the basis of its inductive methodology; in contradistinction to this, Popper holds that there is no unique methodology specific to science. Science, like virtually every other human, and indeed organic, activity, Popper believes, consists largely of problem-solving.

Popper, then, repudiates induction, and rejects the view that it is the characteristic method of scientific investigation and inference, and substitutes falsifiability in its place. It is easy, he argues, to obtain evidence in favour of virtually any theory, and he consequently holds that such ‘corroboration’, as he terms it, should count scientifically only if it is the positive result of a genuinely ‘risky’ prediction, which might conceivably have been false. For Popper, a theory is scientific only if it is refutable by a conceivable event. Every genuine test of a scientific theory, then, is logically an attempt to refute or to falsify it, and one genuine counter-instance falsifies the whole theory. In a critical sense, Popper’s theory of demarcation is based upon his perception of the logical asymmetry which holds between verification and falsification: it is logically impossible to conclusively verify a universal proposition by reference to experience (as Hume saw clearly), but a single counter-instance conclusively falsifies the corresponding universal law. In a word, an exception, far from ‘proving’ a rule, conclusively refutes it.

Every genuine scientific theory then, in Popper’s view, is prohibitive, in the sense that it forbids, by implication, particular events or occurrences. As such it can be tested and falsified, but never logically verified. Thus Popper stresses that it should not be inferred from the fact that a theory has withstood the most rigorous testing, for however long a period of time, that it has been verified; rather we should recognise that such a theory has received a high measure of corroboration. and may be provisionally retained as the best available theory until it is finally falsified (if indeed it is ever falsified), and/or is superseded by a better theory.

Popper has always drawn a clear distinction between the logic of falsifiability and its applied methodology. The logic of his theory is utterly simple: if a single ferrous metal is unaffected by a magnetic field it cannot be the case that all ferrous metals are affected by magnetic fields. Logically speaking, a scientific law is conclusively falsifiable although it is not conclusively verifiable. Methodologically, however, the situation is much more complex: no observation is free from the possibility of error—consequently we may question whether our experimental result was what it appeared to be.

Thus, while advocating falsifiability as the criterion of demarcation for science, Popper explicitly allows for the fact that in practice a single conflicting or counter-instance is never sufficient methodologically to falsify a theory, and that scientific theories are often retained even though much of the available evidence conflicts with them, or is anomalous with respect to them. Scientific theories may, and do, arise genetically in many different ways, and the manner in which a particular scientist comes to formulate a particular theory may be of biographical interest, but it is of no consequence as far as the philosophy of science is concerned. Popper stresses in particular that there is no unique way, no single method such as induction, which functions as the route to scientific theory, a view which Einstein personally endorsed with his affirmation that ‘There is no logical path leading to [the highly universal laws of science]. They can only be reached by intuition, based upon something like an intellectual love of the objects of experience’. Science, in Popper’s view, starts with problems rather than with observations—it is, indeed, precisely in the context of grappling with a problem that the scientist makes observations in the first instance: his observations are selectively designed to test the extent to which a given theory functions as a satisfactory solution to a given problem.

On this criterion of demarcation physics, chemistry, and (non-introspective) psychology, amongst others, are sciences, psychoanalysis is a pre-science (i.e., it undoubtedly contains useful and informative truths, but until such time as psychoanalytical theories can be formulated in such a manner as to be falsifiable, they will not attain the status of scientific theories), and astrology and phrenology are pseudo-sciences. Formally, then, Popper’s theory of demarcation may be articulated as follows: where a ‘basic statement’ is to be understood as a particular observation-report, then we may say that a theory is scientific if and only if it divides the class of basic statements into the following two non-empty sub-classes: (a) the class of all those basic statements with which it is inconsistent, or which it prohibits—this is the class of its potential falsifiers (i.e., those statements which, if true, falsify the whole theory), and (b) the class of those basic statements with which it is consistent, or which it permits (i.e., those statements which, if true, corroborate it, or bear it out).

4. The Growth of Human Knowledge

For Popper accordingly, the growth of human knowledge proceeds from our problems and from our attempts to solve them. These attempts involve the formulation of theories which, if they are to explain anomalies which exist with respect to earlier theories, must go beyond existing knowledge and therefore require a leap of the imagination. For this reason, Popper places special emphasis on the role played by the independent creative imagination in the formulation of theory. The centrality and priority of problems in Popper’s account of science is paramount, and it is this which leads him to characterise scientists as ‘problem-solvers’. Further, since the scientist begins with problems rather than with observations or ‘bare facts’, Popper argues that the only logical technique which is an integral part of scientific method is that of the deductive testing of theories which are not themselves the product of any logical operation. In this deductive procedure conclusions are inferred from a tentative hypothesis. These conclusions are then compared with one another and with other relevant statements to determine whether they falsify or corroborate the hypothesis. Such conclusions are not directly compared with the facts, Popper stresses, simply because there are no ‘pure’ facts available; all observation-statements are theory-laden, and are as much a function of purely subjective factors (interests, expectations, wishes, etc.) as they are a function of what is objectively real.

How then does the deductive procedure work? Popper specifies four steps:

(a) The first is formal, a testing of the internal consistency of the theoretical system to see if it involves any contradictions.

(b) The second step is semi-formal, the axiomatising of the theory to distinguish between its empirical and its logical elements. In performing this step the scientist makes the logical form of the theory explicit. Failure to do this can lead to category-mistakes—the scientist ends up asking the wrong questions, and searches for empirical data where none are available. Most scientific theories contain analytic (i.e., a priori) and synthetic elements, and it is necessary to axiomatise them in order to distinguish the two clearly.

(c) The third step is the comparing of the new theory with existing ones to determine whether it constitutes an advance upon them. If it does not constitute such an advance, it will not be adopted. If, on the other hand, its explanatory success matches that of the existing theories, and additionally, it explains some hitherto anomalous phenomenon, or solves some hitherto unsolvable problems, it will be deemed to constitute an advance upon the existing theories, and will be adopted. Thus science involves theoretical progress. However, Popper stresses that we ascertain whether one theory is better than another by deductively testing both theories, rather than by induction. For this reason, he argues that a theory is deemed to be better than another if (while unfalsified) it has greater empirical content, and therefore greater predictive power than its rival. The classic illustration of this in physics was the replacement of Newton’s theory of universal gravitation by Einstein’s theory of relativity. This elucidates the nature of science as Popper sees it: at any given time there will be a number of conflicting theories or conjectures, some of which will explain more than others. The latter will consequently be provisionally adopted. In short, for Popper any theory X is better than a ‘rival’ theory Y if X has greater empirical content, and hence greater predictive power, than Y.

(d) The fourth and final step is the testing of a theory by the empirical application of the conclusions derived from it. If such conclusions are shown to be true, the theory is corroborated (but never verified). If the conclusion is shown to be false, then this is taken as a signal that the theory cannot be completely correct (logically the theory is falsified), and the scientist begins his quest for a better theory. He does not, however, abandon the present theory until such time as he has a better one to substitute for it. More precisely, the method of theory-testing is as follows: certain singular propositions are deduced from the new theory—these are predictions, and of special interest are those predictions which are ‘risky’ (in the sense of being intuitively implausible or of being startlingly novel) and experimentally testable. From amongst the latter the scientist next selects those which are not derivable from the current or existing theory—of particular importance are those which contradict the current or existing theory. He then seeks a decision as regards these and other derived statements by comparing them with the results of practical applications and experimentation. If the new predictions are borne out, then the new theory is corroborated (and the old one falsified), and is adopted as a working hypothesis. If the predictions are not borne out, then they falsify the theory from which they are derived. Thus Popper retains an element of empiricism: for him scientific method does involve making an appeal to experience. But unlike traditional empiricists, Popper holds that experience cannot determine theory (i.e., we do not argue or infer from observation to theory), it rather delimits it: it shows which theories are false, not which theories are true. Moreover, Popper also rejects the empiricist doctrine that empirical observations are, or can be, infallible, in view of the fact that they are themselves theory-laden.

The general picture of Popper’s philosophy of science, then is this: Hume’s philosophy demonstrates that there is a contradiction implicit in traditional empiricism, which holds both that all knowledge is derived from experience and that universal propositions (including scientific laws) are verifiable by reference to experience. The contradiction, which Hume himself saw clearly, derives from the attempt to show that, notwithstanding the open-ended nature of experience, scientific laws may be construed as empirical generalisations which are in some way finally confirmable by a ‘positive’ experience. Popper eliminates the contradiction by rejecting the first of these principles and removing the demand for empirical verification in favour of empirical falsification in the second. Scientific theories, for him, are not inductively inferred from experience, nor is scientific experimentation carried out with a view to verifying or finally establishing the truth of theories; rather, all knowledge is provisional, conjectural, hypothetical—we can never finally prove our scientific theories, we can merely (provisionally) confirm or (conclusively) refute them; hence at any given time we have to choose between the potentially infinite number of theories which will explain the set of phenomena under investigation. Faced with this choice, we can only eliminate those theories which are demonstrably false, and rationally choose between the remaining, unfalsified theories. Hence Popper’s emphasis on the importance of the critical spirit to science—for him critical thinking is the very essence of rationality. For it is only by critical thought that we can eliminate false theories, and determine which of the remaining theories is the best available one, in the sense of possessing the highest level of explanatory force and predictive power. It is precisely this kind of critical thinking which is conspicuous by its absence in contemporary Marxism and in psychoanalysis.

5. Probability, Knowledge and Verisimilitude

In the view of many social scientists, the more probable a theory is, the better it is, and if we have to choose between two theories which are equally strong in terms of their explanatory power, and differ only in that one is probable and the other is improbable, then we should choose the former. Popper rejects this. Science, or to be precise, the working scientist, is interested, in Popper’s view, in theories with a high informative content, because such theories possess a high predictive power and are consequently highly testable. But if this is true, Popper argues, then, paradoxical as it may sound, the more improbable a theory is the better it is scientifically, because the probability and informative content of a theory vary inversely—the higher the informative content of a theory the lower will be its probability, for the more information a statement contains, the greater will be the number of ways in which it may turn out to be false. Thus the statements which are of special interest to the scientist are those with a high informative content and (consequentially) a low probability, which nevertheless come close to the truth. Informative content, which is in inverse proportion to probability, is in direct proportion to testability. Consequently the severity of the test to which a theory can be subjected, and by means of which it is falsified or corroborated, is all-important.

For Popper, all scientific criticism must be piecemeal, i.e., he holds that it is not possible to question every aspect of a theory at once. More precisely, while attempting to resolve a particular problem a scientist of necessity accepts all kinds of things as unproblematic. These things constitute what Popper terms the ‘background knowledge’. However, he stresses that the background knowledge is not knowledge in the sense of being conclusively established; it may be challenged at any time, especially if it is suspected that its uncritical acceptance may be responsible for difficulties which are subsequently encountered. Nevertheless, it is clearly not possible to question both the theory and the background knowledge at the same time (e.g., in conducting an experiment the scientist of necessity assumes that the apparatus used is in working order).

How then can one be certain that one is questioning the right thing? The Popperian answer is that we cannot have absolute certainty here, but repeated tests usually show where the trouble lies. Even observation statements, Popper maintains, are fallible, and science in his view is not a quest for certain knowledge, but an evolutionary process in which hypotheses or conjectures are imaginatively proposed and tested in order to explain facts or to solve problems. Popper emphasises both the importance of questioning the background knowledge when the need arises, and the significance of the fact that observation-statements are theory-laden, and hence fallible. For while falsifiability is simple as a logical principle, in practice it is exceedingly complicated—no single observation can ever be taken to falsify a theory, for there is always the possibility (a) that the observation itself is mistaken, or (b) that the assumed background knowledge is faulty or defective.

Popper was initially uneasy with the concept of truth, and in his earliest writings he avoided asserting that a theory which is corroborated is true—for clearly if every theory is an open-ended hypothesis, as he maintains, then ipso facto it has to be at least potentially false. For this reason Popper restricted himself to the contention that a theory which is falsified is false and is known to be such, and that a theory which replaces a falsified theory (because it has a higher empirical content than the latter, and explains what has falsified it) is a ‘better theory’ than its predecessor. However, he came to accept Tarski’s reformulation of the correspondence theory of truth, and in Conjectures and Refutations (1963) he integrated the concepts of truth and content to frame the metalogical concept of ‘truthlikeness’ or ‘verisimilitude’. A ‘good’ scientific theory, Popper thus argued, has a higher level of verisimilitude than its rivals, and he explicated this concept by reference to the logical consequences of theories. A theory’s content is the totality of its logical consequences, which can be divided into two classes: there is the ‘truth-content’ of a theory, which is the class of true propositions which may be derived from it, on the one hand, and the ‘falsity-content’ of a theory, on the other hand, which is the class of the theory’s false consequences (this latter class may of course be empty, and in the case of a theory which is true is necessarily empty).

Popper offered two methods of comparing theories in terms of verisimilitude, the qualitative and quantitative definitions. On the qualitative account, Popper asserted:

Assuming that the truth-content and the falsity-content of two theories t1 and t2 are comparable, we can say that t2 is more closely similar to the truth, or corresponds better to the facts, than t1, if and only if either:(a) the truth-content but not the falsity-content of t2 exceeds that of t1, or

(b) the falsity-content of t1, but not its truth-content, exceeds that of t2. (Conjectures and Refutations, 233).

Here, verisimilitude is defined in terms of subclass relationships: t2 has a higher level of verisimilitude than t1 if and only if their truth- and falsity-contents are comparable through subclass relationships, and either (a) t2‘s truth-content includes t1‘s and t2‘s falsity-content, if it exists, is included in, or is the same as, t1‘s, or (b) t2‘s truth-content includes or is the same as t1‘s and t2‘s falsity-content, if it exists, is included in t1‘s.

On the quantitative account, verisimilitude is defined by assigning quantities to contents, where the index of the content of a given theory is its logical improbability (given again that content and probability vary inversely). Formally, then, Popper defines the quantitative verisimilitude which a statement ‘a’ possesses by means of a formula:

Vs(a) = CtT(a) − CtF(a),

where Vs(a) represents the verisimilitude of a, CtT(a) is a measure of the truth-content of a, and CtF(a) is a measure of its falsity-content.

The utilisation of either method of computing verisimilitude shows, Popper held, that even if a theory t2 with a higher content than a rival theory t1 is subsequently falsified, it can still legitimately be regarded as a better theory than t1, and ‘better’ is here now understood to mean t2 is closer to the truth than t1. Thus scientific progress involves, on this view, the abandonment of partially true, but falsified, theories, for theories with a higher level of verisimilitude, i.e., which approach more closely to the truth. In this way, verisimilitude allowed Popper to mitigate what many saw as the pessimism of an anti-inductivist philosophy of science which held that most, if not all scientific theories are false, and that a true theory, even if discovered, could not be known to be such. With the introduction of the new concept, Popper was able to represent this as an essentially optimistic position in terms of which we can legitimately be said to have reason to believe that science makes progress towards the truth through the falsification and corroboration of theories. Scientific progress, in other words, could now be represented as progress towards the truth, and experimental corroboration could be seen an indicator of verisimilitude.

However, in the 1970’s a series of papers published by researchers such as Miller, Tichý, and Grünbaum in particular revealed fundamental defects in Popper’s formal definitions of verisimilitude. The significance of this work was that verisimilitude is largely important in Popper’s system because of its application to theories which are known to be false. In this connection, Popper had written:

Ultimately, the idea of verisimilitude is most important in cases where we know that we have to work with theories which are at best approximations—that is to say, theories of which we know that they cannot be true. (This is often the case in the social sciences). In these cases we can still speak of better or worse approximations to the truth (and we therefore do not need to interpret these cases in an instrumentalist sense). (Conjectures and Refutations, 235).

For these reasons, the deficiencies discovered by the critics in Popper’s formal definitions were seen by many as devastating, precisely because the most significant of these related to the levels of verisimilitude of false theories. In 1974, Miller and Tichý, working independently of each other, demonstrated that the conditions specified by Popper in his accounts of both qualitative and quantitative verisimilitude for comparing the truth- and falsity-contents of theories can be satisfied only when the theories are true. In the crucially important case of false theories, however, Popper’s definitions are formally defective. For while Popper had believed that verisimilitude intersected positively with his account of corroboration, in the sense that he viewed an improbable theory which had withstood critical testing as one the truth-content of which is great relative to rival theories, while its falsity-content (if it exists) would be relatively low, Miller and Tichý proved, on the contrary, that in the case of a false theory t2 which has excess content over a rival theory false t1 both the truth-content and the falsity-content of t2 will exceed that of t1. With respect to theories which are false, therefore, Popper’s conditions for comparing levels of verisimilitude, whether in quantitative and qualitative terms, can never be met.

Commentators on Popper, with few exceptions, had initially attached little importance to his theory of verisimilitude. However, after the failure of Popper’s definitions in 1974, some critics came to see it as central to his philosophy of science, and consequentially held that the whole edifice of the latter had been subverted. For his part, Popper’s response was two-fold. In the first place, while acknowledging the deficiencies in his own formal account (“my main mistake was my failure to see at once that … if the content of a false statement a exceeds that of a statement b, then the truth-content of a exceeds the truth-content of b, and the same holds of their falsity-contents”, Objective Knowledge, 371), Popper argued that “I do think that we should not conclude from the failure of my attempts to solve the problem [of defining verisimilitude] that the problem cannot be solved” (Objective Knowledge, 372), a point of view which was to precipitate more than two decades of important technical research in this field. At another, more fundamental level, he moved the task of formally defining the concept from centre-stage in his philosophy of science, by protesting that he had never intended to imply “that degrees of verisimilitude … can ever be numerically determined, except in certain limiting cases” (Objective Knowledge, 59), and arguing instead that the chief value of the concept is heuristic and intuitive, in which the absence of an adequate formal definition is not an insuperable impediment to its utilisation in the actual appraisal of theories relativised to problems in which we have an interest. The thrust of the latter strategy seems to many to genuinely reflect the significance of the concept of verisimilitude in Popper’s system, but it has not satisfied all of his critics.

6. Social and Political Thought—The Critique of Historicism and Holism

Given Popper’s personal history and background, it is hardly surprising that he developed a deep and abiding interest in social and political philosophy. However, it is worth emphasising that his angle of approach to these fields is through a consideration of the nature of the social sciences which seek to describe and explicate them systematically, particularly history. It is in this context that he offers an account of the nature of scientific prediction, which in turn allows him a point of departure for his attack upon totalitarianism and all its intellectual supports, especially holism and historicism. In this context holism is to be understood as the view that human social groupings are greater than the sum of their members, that such groupings are ‘organic’ entities in their own right, that they act on their human members and shape their destinies, and that they are subject to their own independent laws of development. Historicism, which is closely associated with holism, is the belief that history develops inexorably and necessarily according to certain principles or rules towards a determinate end (as for example in the dialectic of Hegel, which was adopted and implemented by Marx). The link between holism and historicism is that the holist believes that individuals are essentially formed by the social groupings to which they belong, while the historicist—who is usually also a holist—holds that we can understand such a social grouping only in terms of the internal principles which determine its development.

These beliefs lead to what Popper calls ‘The Historicist Doctrine of the Social Sciences’, the views (a) that the principal task of the social sciences is to make predictions about the social and political development of man, and (b) that the task of politics, once the key predictions have been made, is, in Marx’s words, to lessen the ‘birth pangs’ of future social and political developments. Popper thinks that this view of the social sciences is both theoretically misconceived (in the sense of being based upon a view of natural science and its methodology which is totally wrong), and socially dangerous, as it leads inevitably to totalitarianism and authoritarianism—to centralised governmental control of the individual and the attempted imposition of large-scale social planning. Against this Popper strongly advances the view that any human social grouping is no more (or less) than the sum of its individual members, that what happens in history is the (largely unplanned and unforeseeable) result of the actions of such individuals, and that large scale social planning to an antecedently conceived blueprint is inherently misconceived—and inevitably disastrous—precisely because human actions have consequences which cannot be foreseen. Popper, then, is an historical indeterminist, insofar as he holds that history does not evolve in accordance with intrinsic laws or principles, that in the absence of such laws and principles unconditional prediction in the social sciences is an impossibility, and that there is no such thing as historical necessity.

The link between Popper’s theory of knowledge and his social philosophy is his fallibilism—just as we make theoretical progress in science by deliberately subjecting our theories to critical scrutiny, and abandoning those which have been falsified, so too, Popper holds, the critical spirit can and should be sustained at the social level. More specifically, the open society can be brought about only if it is possible for the individual citizen to evaluate critically the consequences of the implementation of government policies, which can then be abandoned or modified in the light of such critical scrutiny—in such a society, the rights of the individual to criticise administrative policies will be formally safeguarded and upheld, undesirable policies will be eliminated in a manner analogous to the elimination of falsified scientific theories, and differences between people on social policy will be resolved by critical discussion and argument rather than by force. The open society as thus conceived of by Popper may be defined as ‘an association of free individuals respecting each other’s rights within the framework of mutual protection supplied by the state, and achieving, through the making of responsible, rational decisions, a growing measure of humane and enlightened life’ (Levinson, R.B. In Defense of Plato, 17). As such, Popper holds, it is not a utopian ideal, but an empirically realised form of social organisation which, he argues, is in every respect superior to its (real or potential) totalitarian rivals. But he does not engage in a moral defence of the ideology of liberalism; rather his strategy is the much deeper one of showing that totalitarianism is typically based upon historicist and holist presuppositions, and of demonstrating that these presuppositions are fundamentally incoherent.

7. Scientific Knowledge, History, and Prediction

At a very general level, Popper argues that historicism and holism have their origins in what he terms ‘one of the oldest dreams of mankind—the dream of prophecy, the idea that we can know what the future has in store for us, and that we can profit from such knowledge by adjusting our policy to it.’ (Conjectures and Refutations, 338). This dream was given further impetus, he speculates, by the emergence of a genuine predictive capability regarding such events as solar and lunar eclipses at an early stage in human civilisation, which has of course become increasingly refined with the development of the natural sciences and their concomitant technologies. The kind of reasoning which has made, and continues to make, historicism plausible may, on this account, be reconstructed as follows: if the application of the laws of the natural sciences can lead to the successful prediction of such future events as eclipses, then surely it is reasonable to infer that knowledge of the laws of history as yielded by a social science or sciences (assuming that such laws exist) would lead to the successful prediction of such future social phenomena as revolutions? Why should it be possible to predict an eclipse, but not a revolution? Why can we not conceive of a social science which could and would function as the theoretical natural sciences function, and yield precise unconditional predictions in the appropriate sphere of application? These are amongst the questions which Popper seeks to answer, and in doing so, to show that they are based upon a series of misconceptions about the nature of science, and about the relationship between scientific laws and scientific prediction.

His first argument may be summarised as follows: in relation to the critically important concept of prediction, Popper makes a distinction between what he terms ‘conditional scientific predictions’, which have the form ‘If X takes place, then Y will take place’, and ‘unconditional scientific prophecies’, which have the form ‘Y will take place’. Contrary to popular belief, it is the former rather than the latter which are typical of the natural sciences, which means that typically prediction in natural science is conditional and limited in scope—it takes the form of hypothetical assertions stating that certain specified changes will come about if particular specified events antecedently take place. This is not to deny that ‘unconditional scientific prophecies’, such as the prediction of eclipses, for example, do take place in science, and that the theoretical natural sciences make them possible. However, Popper argues that (a) these unconditional prophecies are not characteristic of the natural sciences, and (b) that the mechanism whereby they occur, in the very limited way in which they do, is not understood by the historicist.

What is the mechanism which makes unconditional scientific prophecies possible? The answer is that such prophecies can sometimes be derived from a combination of conditional predictions (themselves derived from scientific laws) and existential statements specifying that the conditions in relation to the system being investigated are fulfilled. Schematically, this can be represented as follows:

[C.P. + E.S.]=U.P.

where C.P. = Conditional Prediction; E.S. = Existential Statement; U.P. = Unconditional Prophecy. The most common examples of unconditional scientific prophecies in science relate to the prediction of such phenomena as lunar and solar eclipses and comets.

Given, then, that this is the mechanism which generates unconditional scientific prophecies, Popper makes two related claims about historicism: (a) That the historicist does not in fact derive his unconditional scientific prophecies in this manner from conditional predictions, and (b) the historicist cannot do so because long-term unconditional scientific prophecies can be derived from conditional predictions only if they apply to systems which are well-isolated, stationary, and recurrent (like our solar system). Such systems are quite rare in nature, and human society is most emphatically not one of them.

This, then, Popper argues, is the reason why it is a fundamental mistake for the historicist to take the unconditional scientific prophecies of eclipses as being typical and characteristic of the predictions of natural science—in fact such predictions are possible only because our solar system is a stationary and repetitive system which is isolated from other such systems by immense expanses of empty space. The solar system aside, there are very few such systems around for scientific investigation—most of the others are confined to the field of biology, where unconditional prophecies about the life-cycles of organisms are made possible by the existence of precisely the same factors. Thus one of the fallacies committed by the historicist is to take the (relatively rare) instances of unconditional prophecies in the natural science as constituting the essence of what scientific prediction is, to fail to see that such prophecies apply only to systems which are isolated, stationary, and repetitive, and to seek to apply the method of scientific prophecy to human society and human history. The latter, of course, is not an isolated system (in fact it’s not a system at all), it is constantly changing, and it continually undergoes rapid, non-repetitive development. In the most fundamental sense possible, every event in human history is discrete, novel, quite unique, and ontologically distinct from every other historical event. For this reason, it is impossible in principle that unconditional scientific prophecies could be made in relation to human history—the idea that the successful unconditional prediction of eclipses provides us with reasonable grounds for the hope of successful unconditional prediction regarding the evolution of human history turns out to be based upon a gross misconception, and is quite false. As Popper himself concludes, “The fact that we predict eclipses does not, therefore, provide a valid reason for expecting that we can predict revolutions.” (Conjectures and Refutations, 340).

8. Immutable Laws and Contingent Trends

This argument is one of the strongest that has ever been brought against historicism, cutting, as it does, right to the heart of one of its main theoretical presuppositions. However, it is not Popper’s only argument against it. An additional mistake which he detects in historicism is the failure of the historicist to distinguish between scientific laws and trends, which is also frequently accompanied by a simple logical fallacy. The fallacy is that of inferring from the fact that our understanding of any (past) historical event—such as, for example, the French Revolution—is in direct proportion to our knowledge of the antecedent conditions which led to that event, that knowledge of all the antecedent conditions of some future event is possible, and that such knowledge would make that future event precisely predictable. For the truth is that the number of factors which predate and lead to the occurrence of any event, past, present, or future, is indefinitely large, and therefore knowledge of all of these factors is impossible, even in principle. What gives rise to the fallacy is the manner in which the historian (necessarily) selectively isolates a finite number of the antecedent conditions of some past event as being of particular importance, which are then somewhat misleadingly termed ‘the causes’ of that event, when in fact what this means is that they are the specific conditions which a particular historian or group of historians take to be more relevant than any other of the indefinitely large number of such conditions (for this reason, most historical debates range over the question as to whether the conditions thus specified are the right ones). While this kind of selectivity may be justifiable in relation to the treatment of any past event, it has no basis whatsoever in relation to the future—if we now select, as Marx did, the ‘relevant’ antecedent conditions for some future event, the likelihood is that we will select wrongly.

The historicist’s failure to distinguish between scientific laws and trends is equally destructive of his cause. This failure makes him think it possible to explain change by discovering trends running through past history, and to anticipate and predict future occurrences on the basis of such observations. Here Popper points out that there is a critical difference between a trend and a scientific law, the failure to observe which is fatal. For a scientific law is universal in form, while a trend can be expressed only as a singular existential statement. This logical difference is crucial because unconditional predictions, as we have already seen, can be based only upon conditional ones, which themselves must be derived from scientific laws. Neither conditional nor unconditional predictions can be based upon trends, because these may change or be reversed with a change in the conditions which gave rise to them in the first instance. As Popper puts it, there can be no doubt that “the habit of confusing trends with laws, together with the intuitive observation of trends such as technical progress, inspired the central doctrines of … historicism.” (The Poverty of Historicism, 116). Popper does not, of course, dispute the existence of trends, nor does he deny that the observation of trends can be of practical utility value—but the essential point is that a trend is something which itself ultimately stands in need of scientific explanation, and it cannot therefore function as the frame of reference in terms of which anything else can be scientifically explained or predicted.

A point which connects with this has to do with the role which the evolution of human knowledge has played in the historical development of human society. It is incontestable that, as Marx himself observed, there has been a causal link between the two, in the sense that advances in scientific and technological knowledge have given rise to widespread global changes in patterns of human social organisation and social interaction, which in turn have led to social structures (e.g. educational systems) which further growth in human knowledge. In short, the evolution of human history has been strongly influenced by the growth of human knowledge, and it is extremely likely that this will continue to be the case—all the empirical evidence suggests that the link between the two is progressively consolidating. However, this gives rise to further problems for the historicist. In the first place, the statement that ‘if there is such a thing as growing human knowledge, then we cannot anticipate today what we shall know only tomorrow’ is, Popper holds, intuitively highly plausible. Moreover, he argues, it is logically demonstrable by a consideration of the implications of the fact that no scientific predictor, human or otherwise, can possibly predict, by scientific methods, its own future results. From this it follows, he holds, that ‘no society can predict, scientifically, its own future states of knowledge’. (The Poverty of Historicism, vii). Thus, while the future evolution of human history is extremely likely to be influenced by new developments in human knowledge, as it always has in the past, we cannot now scientifically determine what such knowledge will be. From this it follows that if the future holds any new discoveries or any new developments in the growth of our knowledge (and given the fallible nature of the latter, it is inconceivable that it does not), then it is impossible for us to predict them now, and it is therefore impossible for us to predict the future development of human history now, given that the latter will, at least in part, be determined by the future growth of our knowledge. Thus once again historicism collapses—the dream of a theoretical, predictive science of history is unrealisable, because it is an impossible dream.

Popper’s arguments against holism, and in particular his arguments against the propriety of large-scale planning of social structures, are interconnected with his demonstration of the logical shortcomings of the presuppositions of historicism. Such planning (which actually took place, of course, in the USSR, in China, and in Cambodia, for example, under totalitarian regimes which accepted forms of historicism and holism), Popper points out, is necessarily structured in the light of the predictions which have been made about future history on the basis of the so-called ‘laws’ which historicists such as Marx and Mao claimed to have discovered in relation to human history. Accordingly, recognition that there are no such laws, and that unconditional predictions about future history are based, at best, upon nothing more substantial than the observation of contingent trends, shows that, from a purely theoretical as well as a practical point of view, large-scale social planning is indeed a recipe for disaster. In summary, unconditional large-scale planning for the future is theoretically as well as practically misguided, because, again, part of what we are planning for is our future knowledge, and our future knowledge is not something which we can in principle now possess—we cannot adequately plan for unexpected advances in our future knowledge, or for the effects which such advances will have upon society as a whole. The acceptance of historical indeterminism, then, as the only philosophy of history which is commensurate with a proper understanding of the nature of scientific knowledge, fatally undermines both historicism and holism.

Popper’s critique of both historicism and holism is balanced, on the positive side, by his affirmation of the ideals of individualism and market economics and his strong defence of the open society—the view, again, that a society is equivalent to the sum of its members, that the actions of the members of society serve to fashion and to shape it, and that the social consequences of intentional actions are very often, and very largely, unintentional. This part of his social philosophy was influenced by the economist Friedrich Hayek, who worked with him at the London School of Economics and who was a life-long friend. Popper advocated what he (rather unfortunately) terms ‘piecemeal social engineering’ as the central mechanism for social planning—for in utilising this mechanism intentional actions are directed to the achievement of one specific goal at a time, which makes it possible to monitor the situation to determine whether adverse unintended effects of intentional actions occur, in order to correct and readjust when this proves necessary. This, of course, parallels precisely the critical testing of theories in scientific investigation. This approach to social planning (which is explicitly based upon the premise that we do not, because we cannot, know what the future will be like) encourages attempts to put right what is problematic in society—generally-acknowledged social ills—rather than attempts to impose some preconceived idea of the ‘good’ upon society as a whole. For this reason, in a genuinely open society piecemeal social engineering goes hand-in-hand for Popper with negative utilitarianism (the attempt to minimise the amount of misery, rather than, as with positive utilitarianism, the attempt to maximise the amount of happiness). The state, he holds, should concern itself with the task of progressively formulating and implementing policies designed to deal with the social problems which actually confront it, with the goal of eliminating human misery and suffering to the highest possible degree. The positive task of increasing social and personal happiness, by contrast, can and should be should be left to individual citizens (who may, of course, act collectively to this end), who, unlike the state, have at least a chance of achieving this goal, but who in a free society are rarely in a position to systematically subvert the rights of others in the pursuit of idealised objectives. Thus in the final analysis for Popper the activity of problem-solving is as definitive of our humanity at the level of social and political organisation as it is at the level of science, and it is this key insight which unifies and integrates the broad spectrum of his thought.

9. Critical Evaluation

While it cannot be said that Popper was a modest man, he took criticism of his theories very seriously, and spent much of his time in his later years endeavouring to show that such criticisms were either based upon misunderstandings, or that his theories could, without loss of integrity, be made compatible with new and important insights. The following is a summary of some of the main criticisms which he has had to address. (For Popper’s responses to critical commentary, see his ‘Replies to My Critics’, in P.A. Schilpp (ed.), The Philosophy of Karl Popper, Volume 2, and his Realism and the Aim of Science, edited by W.W. Bartley III.)

1. Popper professes to be anti-conventionalist, and his commitment to the correspondence theory of truth places him firmly within the realist’s camp. Yet, following Kant, he strongly repudiates the positivist/empiricist view that basic statements (i.e., present-tense observation statements about sense-data) are infallible, and argues convincingly that such basic statements are not mere ‘reports’ of passively registered sensations. Rather they are descriptions of what is observed as interpreted by the observer with reference to a determinate theoretical framework. This is why Popper repeatedly emphasises that basic statements are not infallible, and it indicates what he means when he says that they are ‘theory laden’—perception itself is an active process, in which the mind assimilates data by reference to an assumed theoretical backdrop. He accordingly asserts that basic statements themselves are open-ended hypotheses: they have a certain causal relationship with experience, but they are not determined by experience, and they cannot be verified or confirmed by experience. However, this poses a difficulty regarding the consistency of Popper’s theory: if a theory X is to be genuinely testable (and so scientific) it must be possible to determine whether or not the basic propositions which would, if true, falsify it, are actually true or false (i.e., whether its potential falsifiers are actual falsifiers). But how can this be known, if such basic statements cannot be verified by experience? Popper’s answer is that ‘basic statements are not justifiable by our immediate experiences, but are … accepted by an act, a free decision’. (Logic of Scientific Discovery, 109). However, and notwithstanding Popper’s claims to the contrary, this itself seems to be a refined form of conventionalism—it implies that it is almost entirely an arbitrary matter whether it is accepted that a potential falsifier is an actual one, and consequently that the falsification of a theory is itself the function of a ‘free’ and arbitrary act. It also seems very difficult to reconcile this with Popper’s view that science progressively moves closer to the truth, conceived of in terms of the correspondence theory, for this kind of conventionalism is inimical to this (classical) conception of truth.

2. As Lakatos has pointed out, Popper’s theory of demarcation hinges quite fundamentally on the assumption that there are such things as critical tests, which either falsify a theory, or give it a strong measure of corroboration. Popper himself is fond of citing, as an example of such a critical test, the resolution, by Adams and Leverrier, of the problem which the anomalous orbit of Uranus posed for nineteenth century astronomers. Both men independently came to the conclusion that, assuming Newtonian mechanics to be precisely correct, the observed divergence in the elliptical orbit of Uranus could be explained if the existence of a seventh, as yet unobserved outer planet was posited. Further, they were able, again within the framework of Newtonian mechanics, to calculate the precise position of the ‘new’ planet. Thus when subsequent research by Galle at the Berlin observatory revealed that such a planet (Neptune) did in fact exist, and was situated precisely where Adams and Leverrier had calculated, this was hailed as by all and sundry as a magnificent triumph for Newtonian physics: in Popperian terms, Newton’s theory had been subjected to a critical test, and had passed with flying colours. Popper himself refers to this strong corroboration of Newtonian physics as ‘the most startling and convincing success of any human intellectual achievement’. Yet Lakatos flatly denies that there are critical tests, in the Popperian sense, in science, and argues the point convincingly by turning the above example of an alleged critical test on its head. What, he asks, would have happened if Galle had not found the planet Neptune? Would Newtonian physics have been abandoned, or would Newton’s theory have been falsified? The answer is clearly not, for Galle’s failure could have been attributed to any number of causes other than the falsity of Newtonian physics (e.g., the interference of the earth’s atmosphere with the telescope, the existence of an asteroid belt which hides the new planet from the earth, etc). The point here is that the ‘falsification/corroboration’ disjunction offered by Popper is far too logically neat: non-corroboration is not necessarily falsification, and falsification of a high-level scientific theory is never brought about by an isolated observation or set of observations. Such theories are, it is now generally accepted, highly resistant to falsification. They are falsified, if at all, Lakatos argues, not by Popperian critical tests, but rather within the elaborate context of the research programmes associated with them gradually grinding to a halt, with the result that an ever-widening gap opens up between the facts to be explained, and the research programmes themselves. (Lakatos, I. The Methodology of Scientific Research Programmes, passim). Popper’s distinction between the logic of falsifiability and its applied methodology does not in the end do full justice to the fact that all high-level theories grow and live despite the existence of anomalies (i.e., events/phenomena which are incompatible with the theories). The existence of such anomalies is not usually taken by the working scientist as an indication that the theory in question is false; on the contrary, he will usually, and necessarily, assume that the auxiliary hypotheses which are associated with the theory can be modified to incorporate, and explain, existing anomalies.

3. Scientific laws are expressed by universal statements (i.e., they take the logical form ‘All As are X’, or some equivalent) which are therefore concealed conditionals—they have to be understood as hypothetical statements asserting what would be the case under certain ideal conditions. In themselves they are not existential in nature. Thus ‘All As are X’ means ‘If anything is an A, then it is X’. Since scientific laws are non-existential in nature, they logically cannot imply any basic statements, since the latter are explicitly existential. The question arises, then, as to how any basic statement can falsify a scientific law, given that basic statements are not deducible from scientific laws in themselves? Popper answers that scientific laws are always taken in conjunction with statements outlining the ‘initial conditions’ of the system under investigation; these latter, which are singular existential statements, do, when combined with the scientific law, yield hard and fast implications. Thus, the law ‘All As are X’, together with the initial condition statement ‘There is an A at Y’, yields the implication ‘The A at Y is X’, which, if false, falsifies the original law.

This reply is adequate only if it is true, as Popper assumes, that singular existential statements will always do the work of bridging the gap between a universal theory and a prediction. Hilary Putnam in particular has argued that this assumption is false, in that in some cases at least the statements required to bridge this gap (which he calls ‘auxiliary hypotheses’) are general rather than particular, and consequently that when the prediction turns out to be false we have no way of knowing whether this is due to the falsity of the scientific law or the falsity of the auxiliary hypotheses. The working scientist, Putnam argues, always initially assumes that it is the latter, which shows not only that scientific laws are, contra Popper, highly resistant to falsification, but also why they are so highly resistant to falsification.

Popper’s final position is that he acknowledges that it is impossible to discriminate science from non-science on the basis of the falsifiability of the scientific statements alone; he recognizes that scientific theories are predictive, and consequently prohibitive, only when taken in conjunction with auxiliary hypotheses, and he also recognizes that readjustment or modification of the latter is an integral part of scientific practice. Hence his final concern is to outline conditions which indicate when such modification is genuinely scientific, and when it is merely ad hoc. This is itself clearly a major alteration in his position, and arguably represents a substantial retraction on his part: Marxism can no longer be dismissed as ‘unscientific’ simply because its advocates preserved the theory from falsification by modifying it (for in general terms, such a procedure, it now transpires, is perfectly respectable scientific practice). It is now condemned as unscientific by Popper because the only rationale for the modifications which were made to the original theory was to ensure that it evaded falsification, and so such modifications were ad hoc, rather than scientific. This contention—though not at all implausible—has, to hostile eyes, a somewhat contrived air about it, and is unlikely to worry the convinced Marxist. On the other hand, the shift in Popper’s own basic position is taken by some critics as an indicator that falsificationism, for all its apparent merits, fares no better in the final analysis than verificationism.

Feminist Perspectives on Marxism

Posted in Uncategorized by drsivalaw on February 25, 2010

A good place to situate the start of theoretical debates about women, class and work is in the intersection with Marxism and feminism. Such debates were shaped not only by academic inquiries but as questions about the relation between women’s oppression and liberation and the class politics of the left, trade union and feminist movements in the late 19th and 20th centuries, particularly in the U.S., Britain and Europe. It will also be necessary to consider various philosophical approaches to the concept of work, the way that women’s work and household activities are subsumed or not under this category, how the specific features of this work may or may not connect to different “ways of knowing” and different approaches to ethics, and the debate between essentialist and social constructionist approaches to differences between the sexes as a base for the sexual division of labor in most known human societies. The relation of women as a social group to the analysis of economic class has spurred political debates within both Marxist and feminist circles as to whether women’s movements challenging male domination can assume a common set of women’s interests across race, ethnicity, and class. If there are no such interests, on what can a viable women’s movement be based, and how can it evade promoting primarily the interests of white middle class and wealthy women? To the extent to which women do organize themselves as a political group cutting across traditional class lines, under what conditions are they a conservative influence as opposed to a progressive force for social change? If poor and working class women’s issues are different than middle and upper class women’s issues, how can middle class women’s movements be trusted to address them? In addition to these questions, there is a set of issues related to cross-cultural comparative studies of women, work and relative power in different societies, as well as analyses of how women’s work is connected to processes of globalization.

1. Marxism, Work, and Human Nature

Marxism as a philosophy of human nature stresses the centrality of work in the creation of human nature itself and human self-understanding. Link to Marx essay. Both the changing historical relations between human work and nature, and the relations of humans to each other in the production and distribution of goods to meet material needs construct human nature differently in different historical periods: nomadic humans are different than agrarian or industrial humans. Marxism as a philosophy of history and social change highlights the social relations of work in different economic modes of production in its analysis of social inequalities and exploitation, including relations of domination such as racism and sexism. (Marx 1844, 1950, 1906-9; Marx and Engels 1848, 1850; Engels 1942). Within capitalism, the system they most analyzed, the logic of profit drives the bourgeois class into developing the productive forces of land, labor and capital by expanding markets, turning land into a commodity and forcing the working classes from feudal and independent agrarian production into wage labor. Marx and Engels argue that turning all labor into a commodity to be bought and sold not only alienates workers by taking the power of production away from them, it also collectivizes workers into factories and mass assembly lines. This provides the opportunity for workers to unite against the capitalists and to demand the collectivization of property, i.e., socialism, or communism.

According to Engels’s famous analysis of women’s situation in the history of different economic modes production in The Origin of the Family, Private Property and the State(1942), women are originally equal to, if not more powerful than, men in communal forms of production with matrilineal family organizations. Women lose power when private property comes into existence as a mode of production. Men’s control of private property, and the ability thereby to generate a surplus, changes the family form to a patriarchal one where women, and often slaves, [1] become the property of the father and husband.

The rise of capitalism, in separating the family household from commodity production, further solidifies this control of men over women in the family when the latter become economic dependents of the former in the male breadwinner-female housewife nuclear family form. Importantly, capitalism also creates the possibility of women’s liberation from family-based patriarchy by creating possibilities for women to work in wage labor and become economically independent of husbands and fathers. Engels stresses, however, that because of the problem of unpaid housework, a private task allocated to women in the sexual division of labor of capitalism, full women’s liberation can only be achieved with the development of socialism and the socialization of housework and childrearing in social services provided by the state. For this reason, most contemporary Marxists have argued that women’s liberation requires feminists to join the working class struggle against capitalism (Cliff 1984).

2. Marxist-Feminist Analyses

Many Marxist-feminists thinkers, prominent among them sociologists and anthropologists, have done cross-cultural and historical studies of earlier forms of kinship and economy and the role of the sexual or gender division of labor in supporting or undermining women’s social power (cf. Reed 1973, Leacock 1972, Rosaldo and Lamphere 1974). They have also attempted to assess the world economic development of capitalism as a contradictory force for the liberation of women (Saffioti 1978) and to argue that universal women’s liberation requires attention to the worse off: poor women workers in poor post-colonial countries (Sen & Grown 1987). Other feminist anthropologists have argued that other variables in addition to women’s role in production are key to understanding women’s social status and power (Sanday 1981; Leghorn and Parker 1981). Yet other feminist economic historians have done historical studies of the ways that race, class and ethnicity have situated women differently in relation to production, for example in the history of the United States (Davis 1983; Amott and Matthaei 1991). Finally some Marxist-feminists have argued that women’s work in biological and social reproduction is a necessary element of all modes of production and one often ignored by Marxist economists (Benston 1969; Vogel 1995).

3. First Wave Feminist Analyses of Women and Work

Those feminist analyses which have highlighted the role of women’s work in the social construction of gender and the perpetuation of male dominance have been termed liberal, radical, Marxist, and socialist feminism by such influential categorizers as Jaggar and Rothenberg [Struhl] (1978), Tong (2000), Barrett (1980), Jaggar (1983) and Walby (1990)[2]. However, the pigeonhole categories of liberal, radical, Marxist, or socialist categories apply poorly to both to first wave women’s movement feminist predecessors and contemporary deconstructionist, post-structuralist and post-colonialist perspectives.

A number of first wave feminists write about work and class as key issues for women’s liberation, such as socialist-feminist Charlotte Perkins Gilman, heavily influenced by Darwinism and 19th century utopian modernism (Gilman 1898, 1910, 1979), anarchist Emma Goldman (1969), and existentialist, radical feminist and Marxist of sorts Simone de Beauvoir (1952). This is because the debates that arose around the place of the women’s movement in class politics were different in the early and mid-twentieth century than they were in the 1960s when many feminist theorists were trying to define themselves independently of the left anti-Vietnam war and civil rights movements of the time.

The debate about the economic and social function of housework and its relation to women’s oppression is an old one that has been a feature of both the first and second wave women’s movements in the US, Britain and Europe. In both eras, the underlying issue is how to handle the public/private split of capitalist societies in which women’s reproductive functions have either limited their work to the home or created a “second shift” problem of unpaid housework and childcare as well as waged work. In the first wave, located as it was in the Victorian period where the dominant ideology for middle and upper class women was purity, piety and domesticity (also called the “cult of true womanhood”), the debate centered on whether to keep housework in the private sphere yet make it more scientific and efficient (Beecher 1841; Richards 1915 ), or whether to “socialize” it by bringing it into the public sphere, as socialist Charlotte Perkins Gilman advocated (1898).

In the US, the “public housekeeping” aspect of the Progressive movement of the 1890s through early 1900s advocated that women bring the positive values associated with motherhood into the public sphere — by obtaining the vote, cleaning out corruption in politics, creating settlement houses to educate and support immigrants, and forming the women’s peace movement, etc. (cf. Jane Addams 1914). Disagreements about whether to downplay or valorize the distinctive function and skills in motherhood as work for which women are naturally superior, or to see motherhood as restricting women’s chances for economic independence and equality with men in the public sphere, were also evident in debates between Ellen Keys (1909, 1914) and Gilman. Keys represented the difference side, that women are superior humans because of mothering; while Gilman and Goldman took the equality side of the debate, that is, that, women are restricted, and made socially unequal to men, by unpaid housework and mothering[3].

4. Second Wave Feminist Analyses of Housework

In the second wave movement, theorists can be grouped by their theory of how housework oppresses women. Typically, liberal feminists critique housework because it is unpaid. This makes women dependent on men and devalued, since their work is outside the meaningful sphere of public economic production (Friedan 1963). Marxist feminist theorists see this as part of the problem, but some go further to maintain that housework is part of a household feudal mode of production of goods for use that persists under capitalism and gives men feudal powers over women’s work (Benston 1969, Fox 1980). Other Marxist feminists argue that women’s housework is part of the social reproduction of capitalism (Federici 1975, 2004; Malos 1975; Vogel 1995). That the necessary work of reproducing the working class is unpaid allows more profits to capitalists. It is the sexual division of labor in productive and reproductive work that makes woman unequal to men and allows capitalists to exploit women’s unpaid labor. Some even make this analysis the basis for a demand for wages for housework (Dalla Costa 1974; Federici 1975). More recently, Federici has done an analysis of the transition to capitalism in Europe. She argues that it was the emerging capitalist class need to control working class reproduction, to eliminate working class women’s control over biological reproduction, and to assure their unpaid reproductive work in the home by restricting abortions, that fueled the campaign against witches during this period (Federici 2004).

One of the philosophical problems raised by the housework debate is how to draw the line between work and play or leisure activity when the activity is not paid: is a mother playing with her baby working or engaged in play? If the former, then her hours in such activity may be compared with those of her husband or partner to see if there is an exploitation relation present, for example, if his total hours of productive and reproductive work for the family are less than hers (cf. Delphy 1984). But to the extent that childrearing counts as leisure activity, as play, as activity held to be intrinsically valuable (Ferguson 2004), no exploitation is involved. Perhaps childrearing and other caring activity is both work and play, but only that portion which is necessary for the psychological growth of the child and the worker(s) counts as work. If so, who determines when that line is crossed? Since non-market activity does not have a clear criterion to distinguish work from non-work, nor necessary from non-necessary social labor, an arbitrary element seems to creep in that makes standards of fairness difficult to apply to gendered household bargains between men and women dividing up waged and non-waged work. (Barrett 1980).

One solution to this problem is simply to take all household activity that could also be done by waged labor (nannies, domestic servants, gardeners, chauffeurs, etc.) as work and to figure its comparable worth by the waged labor necessary to replace it (Folbre 1982, 1983). Another is to reject altogether the attempts to base women’s oppression on social relations of work, on the grounds that such theories are overly generalizing and ignore the discrete meanings that kinship activities have for women in different contexts (Nicholson 1991; Fraser and Nicholson 1991; Marchand 1995). Or, one can argue that although the line between work and leisure changes historically, those doing the activity should have the decisive say as to whether their activity counts as work, i.e., labor necessary to promote human welfare. The existence of second wave women’s movements critiques of the “second shift” of unpaid household activity indicates that a growing number of women see most of it as work, not play (cf. Hochchild 1989). Finally, one can argue that since the human care involved in taking care of children and elders creates a public good, it should clearly be characterized as work, and those who are caretakers, primarily women, should be fairly compensated for it by society or the state (Ferguson and Folbre 2000: Folbre 2000, Ferguson 2004).

5. The Public/Private Split and Its Implications

Liberal, Marxist and radical feminists have all characterized women as doubly alienated in capitalism because of the public/private split that relegates their work as mothers and houseworkers to the home, and psychologically denies them full personhood, citizenship and human rights (Foreman 1974, Okin 1989, Pateman 1988, Goldman 1969). Noting that women workers on average only have about 70% of the average salary of men in the contemporary U.S., feminists have claimed this is because women’s work, tied stereotypically to housework and hence thought unskilled is undervalued, whether it is cleaning or rote service work, or nurturing work thought to be connected to natural maternal motivations and aptitudes. Hence some feminists have organized in campaigns for “comparable worth” to raise women’s wages to the same as men’s wages involving comparable skills (Brenner 2000; cf. also articles in Hansen and Philipson eds. 1990).

Many radical feminists maintain that women’s work is part of a separate patriarchal mode of reproduction that underlies all economic systems of production and in which men exploit women’s reproductive labor (Delphy 1984; O’Brien 1981; Leghorn and Parker 1981; Rich 1980; Mies 1986). Smith (1974), O’Brien (1981), Hartsock (1983 a,b), Haraway (1985) and Harding (1986) pioneered in combining this radical feminist assumption with a perspectival Marxist theory of knowledge to argue that one’s relation to the work of production and reproduction gave each gender and each social class a different way of knowing the social totality. Women’s work, they argued, ties them to nature and human needs in a different way than men’s work does, which creates the possibility of a less alienated and more comprehensive understanding of the workings of the social totality. Collins argues further that the racial division of labor, institutional racism and different family structures put African American women in yet a different epistemic relation to society than white and other women (1990, 2000). Writing in a post-modernist re-articulation of this feminist standpoint theory, Donna Haraway argues that the breakdown of the nature/culture distinction because of scientific technology and its alteration of the human body makes us into “cyborgs.” Hence our perspectives are so intersectional that they cannot be unified simply by a common relation to work. What is required for a feminist politics is not a situated identity politics, whether of gender and/or race and/or class, but an affinity politics based on alliances and coalitions that combine epistemic perspectives (Haraway 1985).

Like these radical feminists, some socialist-feminists have tried to develop a “dual systems” theory (cf. Young 1981). This involves theorizing a separate system of work relations that organizes and directs human sexuality, nurturance, affection and biological reproduction. Rather than seeing this as an unchanging universal base for patriarchy, however, they have argued that this system, thought of as the “sex/gender system” (Rubin 1975; Hartmann 1978, 1981a,b), or as “sex/affective production” (Ferguson 1989, 1991; Ferguson and Folbre 1981) has different historical modes, just as Marx argued that economies do. Rubin argues that sex/gender systems have been based in different kinship arrangements, most of which have supported the exchange of women by men in marriage, and hence have supported male domination and compulsory heterosexuality. She is hopeful that since capitalism shifted the organization of the economy from kinship to commodity production, the power of fathers and husbands over daughters and wives, and the ability to enforce heterosexuality, will continue to decline, and women’s increasing ability to be economically independent will lead to women’s liberation and equality with men.

With a different historical twist, Hartmann argues that a historical bargain was cemented between capitalist and working class male patriarchs to shore up patriarchal privileges that were being weakened by the entrance of women into wage labor in the 19th century by the creation of the “family wage” to allow men sufficient wages to support a non-wage-earning wife and children at home (1981a). While Ferguson and Folbre (1981) agree that there is no inevitable fit between capitalism and patriarchy, they argue that there are conflicts, and that the family wage bargain has broken down at present. Indeed, both Ferguson and Smart (1984) argue that welfare state capitalism and the persistent sexual division of wage labor in which work coded as women’s is paid less than men’s with less job security are ways that a “public patriarchy” has replaced different systems of family patriarchy that were operating in early and pre-capitalist societies. Walby (1990) has a similar analysis, but to her the connection between forms of capitalism and forms of patriarchy is more functional and less accidental than it appears to Ferguson and Smart. [It would be helpful to briefly explain how Walby sees it as functional. Added paragraph below:]

Walby argues that there are two different basic forms of patriarchy which emerge in response to the tensions between capitalist economies and patriarchal household economies: private and public patriarchy. Private patriarchy as a form is marked by excluding women from economic and political power while public patriarchy works by segregating women. There is a semi-automatic re-adjustment of the dual systems when the older private father patriarchy based on the patriarchal family is broken down due to the pressures of early industrial capitalism. The family wage and women’s second class citizenship that marked that initial re-adjustment are then functionally replaced by a public form of patriarchy, the patriarchal welfare state, where women enter the wage labor force permanently but in segregated less well paid jobs. But Ferguson (1989,1991), Smart (1984) and Folbre (1994) suggest that although the patriarchal control of fathers and husbands over wife and children as economic assets has been diminished in advanced capitalism, there is always a dialectical and contradictory tension between patriarchy and capitalism in which both advances and retreats for women’s equality as citizens and in work relations are constantly occurring in the new form of public patriarchy. Thus, the new “marriage” of patriarchal capitalism operates to relegate women to unpaid or lesser paid caring labor, whether in the household or in wage labor, thus keeping women by and large unequal to men. This is especially notable in the rise of poor single-mother-headed families. However, as it forces more and more women into wage labor, women are given opportunities for some independence from men and the possibility to challenge male dominance and sex segregation in all spheres of social life. Examples are the rise of the first and second wave women’s movements and consequent gains in civil rights for women.

6. Psychological Theories of Women and Work

The socialist-feminist idea that there are two interlocking systems that structure gender and the economy, and thus are jointly responsible for male domination, has been developed in a psychological direction by the psychoanalytic school of feminist theorists. Particularly relevant to the question of women and work are the theories of Mitchell (1972, 1974), Kuhn and Wolpe (1978), Chodorow (1978, 1979, 1982) and Ruddick (1989). Mothering, or, taking care of babies and small children, as a type of work done overwhelmingly by women, socializes women and men to have different identities, personalities and skills. In her first work (1972), Mitchell argues that women’s different relations to productive work, reproduction, socialization of children and sexuality in patriarchy give her lesser economic and psychological power in relation to men. In a Freudian vein, Mitchell later argues (1974) that women learn that they are not full symbolic subjects because compulsory heterosexuality and the incest taboo bar them from meeting either the desire of their mother or any other woman. Chodorow, also reading Freud from a feminist perspective, suggests that women’s predominance in mothering work is the basis for the learned gender distinction between women and men. The sexual division of infant care gives boys, who must learn their masculine identity by separating from their mother and the feminine, a motive for deprecating, as well as dominating, women. Ruddick from a more Aristotelian perspective suggests that it is the skills and virtues required in the practice of mothering work which not only socially construct feminine gender differently from men’s, but could ground an alternative vision for peace and resolving human conflicts, if a peace movement were led by women.

Ferguson argues that the “sex/affective” work of mothering and wifely nurturing is exploitative of women: women give more nurturance and satisfaction (including sexual satisfaction) to men and children than they receive, and do much more of the work of providing these important human goods (cf. also Bartky 1990). The gendered division of labor has both economic and psychological consequences, since women’s caring labor creates women less capable of or motivated to separate from others, and hence less likely to protest such gender exploitation (Ferguson 1989, 1991). Folbre argues by contrast that it is only because women’s bargaining power is less than men’s because of the power relations involved in the gender division of labor and property that women acquiesce to such inequalities (Folbre 1982). Ferguson argues that gendered exploitation in a system of meeting human needs suggests that women can be seen as a “sex class” (or gender class) which cuts across economic class lines (1979, 1989, 1991). This line of thought is also developed by Christine Delphy (1984), Monique Wittig (1980) and Luce Irigaray (1975).

On the other side of the debate, Brenner (2000) argues that women are not uniformly exploited by men across economic class lines: indeed, for working class women their unpaid work as housewives serves the working class as a whole, because the whole class benefits when its daily and future reproduction needs are met by women’s nurturing and childcare work. They argue further that middle and upper class women’s economic privileges will inevitably lead them to betray working class women in any cross-class alliance that is not explicitly anti-capitalist. Hochchild (2000) and hooks (2000) point out that career women tend to pay working class women to do the second shift work in the home so they can avoid that extra work, and they have an interest in keeping such wages, e.g., for house cleaning and nannies, as low as possible to keep the surplus for themselves. Kollias (1981) argues further that working class women are in a stronger political position to work effectively for women’s liberation than middle class women, while McKenny (1981) argues that professional women have to overcome myths of professionalism that keep them feeling superior to working class women and hence unable to learn from or work with them for social change.

7. Ethical Theories of Women’s Caring Work

Several authors have explored the ethical implications of the sexual division of labor in which it is primarily women who do caring labor. Nancy Fraser (1997) and Susan Moller Okin (1989) formulate ethical arguments to maintain that a just model of society would have to re-structure work relations so that the unpaid and underpaid caring labor now done primarily by women would be given a status equivalent to (other) wage labor by various means. In her council socialist vision, Ferguson (1989, 1991) argues that an ideal society would require both women and men to do the hitherto private unpaid work of caring or “sex/affective labor.” For example, such work would be shared by men, either in the family and/or provided by the state where appropriate (as for elders and children’s childcare), and compensated fairly by family allowances (for those, women or men, doing the major share of housework), and by higher pay for caring wage work (such as daycare workers, nurses, and teachers).

Carol Gilligan (1982) claims that women and girls tend to use a different form of ethical reasoning — she terms this the “ethics of care” — than men and boys who use an ethics of justice. Some have argued that this different ethical approach is due to women’s caring sensibilities that have been developed by the sexual division of labor (Ruddick 1989). Interestingly, the debate between feminist theorists of justice, e.g., Fraser and Okin, and ethics of care feminists such as Gilligan and Ruddick, is less about substance than a meta-ethical disbute as to whether ethics should concern principles or judgments in particular cases. All of these theorists seem to have ideal visions of society which dovetail: all would support the elimination of the sexual division of labor so that both men and women could become equally sensitized to particular others through caring work.

8. Modernist vs. Postmodernist Feminist Theory

Useful anthologies of the first stage of second wave socialist feminist writings which include discussions of women, class and work from psychological as well as sociological and economic perspectives are Eisenstein (1979), Hansen and Philipson (1990), Hennessy and Ingraham (1997), and Holmstrom (2002). Jaggar (1983) wrote perhaps the first philosophy text explaining the categories of liberal, radical, Marxist and socialist-feminist thought and defending a socialist-feminist theory of male domination based on the notion of women’s alienated labor. Others such as Jaggar and Rothenberg (1978), Tuana and Tong (1995) and Herrmann and Stewart (1993) include classic socialist feminist analyses in their collections, inviting comparisons of the authors to others grouped under the categories of liberal, radical, psychoanalytic, Marxist, postmodern, postcolonial and multicultural feminisms.

Various post-modern critiques of these earlier feminist schools of thought such as post-colonialism as well as deconstruction and post-structuralism challenge the over-generalizations and economic reductionism of many of those constructing feminist theories that fall under the early categories of liberal, radical, Marxist or socialist- feminism (cf. Nicholson 1991; Fraser and Nicholson 1991; hooks 1984, 2000; Anzaldua and Moraga, eds. 1981). Others argue that part of the problem is the master narratives of liberalism or Marxism, the first of which sees all domination relations due to traditional hierarchies and undermined by capitalism, thus ignoring the independent effectivity of racism (Josephs 1981); and the second of which ties all domination relations to the structure of contemporary capitalism and ignores the non-capitalist economics contexts in which many women work, even within so-called capitalist economies, such as housework and voluntary community work (Gibson-Graham 1996).

In spite of the “pomo” critiques, there are some powerful thinkers within this tendency who have not completely rejected a more general starting point of analysis based on women, class and work. For example, Spivak (1988), Mohanty (1997), Carby (1997), and Hennessy (1993, 2000) are creating and re-articulating forms of Marxist and socialist-feminism less susceptible to charges of over-generalization and reductionism, and more compatible with close contextual analysis of the power relations of gender and class as they relate to work. They can be grouped loosely with a tendency called materialist feminism that incorporates some of the methods of deconstruction and post-structuralism (Hennessy 1993; Landry and MacLean 1993; and the online paper by Ferguson in the Other Internet Resources section).

9. Race, Class, and Intersectional Feminist Analyses

Many in the contemporary feminist theory debate are interested in developing concrete “intersectional” or “integrative feminist” analyses of particular issues which try to give equal weight to gender, race, class and sexuality in a global context without defining themselves by the categories, such as liberal, radical or materialist, of the earlier feminist debate categories (cf. work by Davis 1983; Brewer 1995; Crenshaw 1997; Stanlie and James 1997; Anzaldua; hooks 1984, 2000). Nonetheless strong emphasis on issues of race and ethnicity can be found in their work on women, class and work. For example, Brewer shows that white and African-American working class women are divided by race in the workforce, and that even changes in the occupational structure historically tend to maintain this racial division of labor. Hooks argues that women of color and some radical feminists were more sensitive to class and race issues than those, primarily white, feminists whom she labels “reformist feminists” (hooks 2000).

Presupposed in the general theoretical debates concerning the relations between gender, social and economic class, and work are usually definitions of each of these categories that some thinkers would argue are problematic. For example, Tokarczyk and Fay have an excellent anthology on working class women in the academy (1993) in which various contributors discuss the ambiguous positions in which they find themselves by coming from poor family backgrounds and becoming academics. One problem is whether they are still members of the working class in so doing, and if not, whether they are betraying their families of origin by a rise to middle class status. Another is, whether they have the same status in the academy, as workers, thinkers and women, as those men or women whose families of origin were middle class or above. Rita Mae Brown wrote an early article on this, arguing that education and academic status did not automatically change a working class woman’s identity, which is based not just on one’s relation to production, but one’s behavior, basic assumptions about life, and experiences in childhood (Brown 1974). Tokarczyk and Fay acknowledge that the definition of “class” is vague in the U.S. Rather than provide a standard philosophical definition in terms of necessary and sufficient conditions for membership in the working class, they provide a cluster of characteristics and examples of jobs, such as physically demanding, repetitive and dangerous jobs, jobs that lack autonomy and are generally paid badly. Examples of working class jobs they give are cleaning women, waitresses, lumberjacks, janitors and police officers. They then define their term “working class women academics” to include women whose parents had jobs such as these and are in the first generation in their family to attend college (Tokarczyk and Fay: 5). They challenge those that would argue that family origin can be overcome by the present position one has in the social division of labor: simply performing a professional job and earning a salary does not eradicate the class identity formed in one’s “family class” (cf. Ferguson 1979).

To theorize the problematic relation of women to social class, Ferguson (1979, 1989, 1991) argues that there are at least three different variables — an individual’s work, family of origin, and present household economic unit — which relate an individual to a specific socio-economic class. For example, a woman may work on two levels: as a day care worker (working class), but also as a member of a household where she does the housework and mothering/child care, while her husband is a wealthy contractor (petit bourgeois, small capitalist class). If in addition her family of origin is professional middle class (because, say, her parents were college educated academics), the woman may be seen and see herself as either working class or middle class, depending on whether she and others emphasize her present relations of wage work (her individual economic class, which in this case is working class), her household income (middle class) or her family of origin (middle class).

Sylvia Walby deals with this ambiguity of economic class as applying to women as unpaid houseworkers by claiming against Delphy (1984) that the relevant economic sex classes are those who are housewives vs. those who are husbands benefiting from such work, not those of all women and men, whether or not they do or receive housework services (Walby 1990). Ferguson, however, sides with Delphy in putting all women into “sex class”, since all women, since trained into the gender roles of patriarchal wife and motherhood, are potentially those whose unpaid housework can be so exploited. But seeing herself as a member of a fourth class category, “sex class,” and hence, in a patriarchal capitalist system, seeing herself exploited as a woman worker in her wage work and unpaid second shift housework, [4] is thus not a given but an achieved social identity. Such an identity is usually formed through political organizing and coalitions with other women at her place of employment, in her home and her community. In this sense the concept of sex class is exactly analogous to the concept of a feminist epistemological standpoint: not a given identity or perspective, but one that is achievable under the right conditions.

Realizing the importance of this disjuncture between economic class and sex class for women, Maxine Molyneux (1984) argues in a often cited article that there are no “women’s interests” in the abstract that can unify women in political struggle. Instead, she theorizes that women have both “practical gender interests” and “strategic gender interests.” Practical gender interests are those that women develop because of the sexual division of labor, which makes them responsible for the nurturant work of sustaining the physical and psychological well-being of children, partners and relatives through caring labor. Such practical gender interests, because they tie a woman’s conception of her own interests as a woman to those of her family, support women’s popular movements for food, water, child and health care, even defense against state violence, which ally them with the economic class interests of their family. Strategic gender interests, on the contrary, may ally women across otherwise divided economic class interests, since they are those, like rights against physical male violence and reproductive rights, which women have as a sex class to eliminate male domination.

Molyneux used her distinctions between practical and strategic gender interests to distinguish between the popular women’s movement in Nicaragua based on demands for economic justice for workers and farmers against the owning classes, demands such as education, health and maternity care, clean water, food and housing, and the feminist movement which emphasized the fight for legal abortion, fathers’ obligation to pay child support to single mothers, and rights against rape and domestic violence. She and others have used this distinction between practical and strategic gender interests to characterize the tension between popular women’s movements and feminist movements in Latin America (Molyneux 2001; Alvarez 1998; Foweraker 1998).

A similar distinction between different types of women’s interests was developed further as a critique of interest group paradigms of politics by Anna Jónasdóttir (1988, 1994). Jónasdóttir argues that women have a common formal interest in votes for women, women’s political caucuses, gender parity demands, and other mechanisms which allow women a way to develop a collective political voice, even though their content interests, that is, their specific needs and priorities, may vary by race and economic class, among others. Her distinctions, and those of Molyneux, have been changed slightly — practical vs. strategic gender needs, rather than interests — to compare and contrast different paradigms of economic development by World Bank feminist theorist Carolyn Moser (1993). Most recently the Jónasdóttir distinctions have been used by Mohanty (1997) to defend and maintain, in spite of postmodernists’ emphasis on intersectional differences, that commonalities in women’s gendered work can create a cross-class base for demanding a collective political voice for women: a transnational feminism which creates a demand for women’s political representation, developing the platform of women’s human rights as women and as workers. Nonetheless, the tension between women’s economic class-based interests or needs and their visionary/strategic gender interests or needs is still always present, and must therefore always be negotiated concretely by popular movements for social justice involving women’s issues.

Another approach to the problematic nature of socio-economic class as it relates to women are empirical studies which show how class distinctions are still important for women in their daily lives as a way to compare and contrast themselves with other women and men, even if they do not use the concepts of “working class,” “professional class” or “capitalist class”. Many have pointed out that the concept of class itself is mystified in the U.S. context, but that nonetheless class distinctions still operate because of different structural economic constraints, which act on some differently from others. The Ehrenreichs (1979), in a classic article, argue that this mystification is due to the emergence of a professional-managerial class that has some interests in common with the capitalist class and some with the working class. Whatever its causes, there are empirical studies which show that class distinctions still operate between women, albeit in an indirect way. Barbara Ehrenreich (2001), by adopting the material life conditions of a poor woman, did an empirical study of the lives of women working for minimum wages and found their issues to be quite different from and ignored by middle and upper-class women. Diane Reay (2004) does an empirical study of women from manual labor family backgrounds and their relation to the schooling of their children, and discovers that they use a discourse that acknowledges class differences of educational access and career possibilities, even though it does not specifically define these by class per se. Similarly, Julie Bettie (2000) does an impressive discourse analysis of the way that Latina high school students create their own class distinctions through concepts such as “chicas,” “cholas” and “trash” to refer to themselves and their peers. These categories pick out girls as having middle class, working class or poor aspirations by performance indicators such as dress, speech, territorial hang-outs and school achievement, while never mentioning “class” by name. Women’s experiences of growing up working class are presented in the anthology edited by Tea (2003).

Theoretical and empirical debates about the relation of women to class and work, and the implications of these relations for theories of male domination and women’s oppression as well as for other systems of social domination, continue to be important sources of theories and investigations of gender identities, roles and powers in the field of women and gender studies, as well as in history, sociology, anthropology and economics. They also have important implications for epistemology, metaphysics and political theory in the discipline of philosophy, and consequently other disciplines in humanities and the social sciences.

Colonialism

Posted in Uncategorized by drsivalaw on February 25, 2010

1. Definition

Colonialism is not a modern phenomenon. World history is full of examples of one society gradually expanding by incorporating adjacent territory and settling its people on newly conquered territory. The ancient Greeks set up colonies as did the Romans, the Moors, and the Ottomans, to name just a few of the most notorious examples. Colonialism, then, is not restricted to a specific time or place. Nevertheless, in the sixteenth century, colonialism changed decisively because of technological developments in navigation that began to connect more remote parts of the world. Fast sailing ships made it possible to reach distant ports while sustaining closer ties between the center and colonies. Thus, the modern European colonial project emerged when it became possible to move large numbers of people across the ocean and to maintain political sovereignty in spite of geographical dispersion. This entry uses the term colonialism to describe the process of European settlement and political control over the rest of the world, including Americas, Australia, and parts of Africa and Asia.

The difficulty of defining colonialism stems from the fact that the term is often used as a synonym for imperialism. Both colonialism and imperialism were forms of conquest that were expected to benefit Europe economically and strategically. The term colonialism is frequently used to describe the settlement of places such as North America, Australia, New Zealand, Algeria, and Brazil that were controlled by a large population of permanent European residents. The term imperialism often describes cases in which a foreign government administers a territory without significant settlement; typical examples include the scramble for Africa in the late nineteenth century and the American domination of the Philippines and Puerto Rico. The distinction between the two, however, is not entirely consistent in the literature. Some scholars distinguish between colonies for settlement and colonies for economic exploitation. Others use the term colonialism to describe dependencies that are directly governed by a foreign nation and contrast this with imperialism, which involves indirect forms of domination.

The confusion about the meaning of the term imperialism reflects the way that the concept has changed over time. Although the English word imperialism was not commonly used before the nineteenth century, Elizabethans already described the United Kingdom as “the British Empire.” As Britain began to acquire overseas dependencies, the concept of empire was employed more frequently. Thus, the traditional understanding of imperialism was a system of military domination and sovereignty over territories. The day to day work of government might be exercised indirectly through local assemblies or indigenous rulers who paid tribute but sovereignty rested with the British. The shift away from this traditional understanding of empire was influenced by the Leninist analysis of imperialism as a system oriented towards economic exploitation. According to Lenin, imperialism was the necessary and inevitable result of the logic of accumulation in late capitalism. Thus, for Lenin and subsequent Marxists, imperialism described a historical stage of capitalism rather than a trans-historical practice of political and military domination. The lasting impact of the Marxist approach is apparent in contemporary debates about American imperialism, a term which usually means American economic hegemony, regardless of whether such power is exercised directly or indirectly (Young 2001).

Given the difficulty of consistently distinguishing between the two terms, this entry will use colonialism as a broad concept that refers to the project of European political domination from the sixteenth to the twentieth centuries that ended with the national liberation movements of the 1960s. Post-colonialism will be used to describe the political and theoretical struggles of societies that experienced the transition from political dependence to sovereignty. This entry will use imperialism as a broad term that refers to economic, military, political domination that is achieved without significant permanent European settlement.

2. Natural Law and the Age of Discovery

The Spanish conquest of the Americas sparked a theological, political, and ethical debate about the legitimacy of using military force in order to acquire control over foreign lands. This debate took place within the framework of a religious discourse that legitimized military conquest as a way to facilitate the conversion and salvation of indigenous peoples. The idea of a “civilizing mission” was by no means the invention of the British in the nineteenth century. The Spanish conquistadores and colonists explicitly justified their activities in the Americas in terms of a religious mission to bring Christianity to the native peoples. The Crusades provided the initial impetus for developing a legal doctrine that rationalized the conquest and possession of infidel lands. Whereas the Crusades were initially framed as defensive wars to reclaim Christian lands that had been conquered by non-Christians, the resulting theoretical innovations played an important role in subsequent attempts to justify the conquest of the Americas. The core claim was that the “Petrine mandate” to care for the souls of Christ’s human flock required Papal jurisdiction over temporal as well as spiritual matters, and this control extended to non-believers as well as believers.

Even the spread of Christianity, however, did not provide an unproblematic justification for the project of overseas conquest. The Spanish conquest of the Americas was taking place during a period of reform when humanist scholars within the Church were increasingly influenced by the natural law theories of theologians such as St. Thomas Aquinas. According to Pope Innocent IV, war could not be waged against infidels and they could not be deprived of their property simply because of their non-belief. Under the influence of Thomism, Innocent IV concluded that force was legitimate only in cases where infidels violated natural law. Thus nonbelievers had legitimate dominion over themselves and their property, but this dominion was abrogated if they proved incapable of governing themselves according to principles that every reasonable being would recognize. The Spanish quickly concluded that the habits of the native Americans, from nakedness to unwillingness to labor to alleged cannibalism, clearly demonstrated their inability to recognize natural law. From this, they legitimized the widespread enslavement of the Indians as the only way of teaching them civilization and introducing them to Christianity.

Many of the Spanish missionaries sent to the New World, however, immediately noticed that the brutal exploitation of slave labor was widespread while any serious commitment to religious instruction was absent. Members of the Dominican order in particular noted the hypocrisy of enslaving the Indians because of their alleged barbarity while practicing a form of conquest, warfare, and slavery that reduced the indigenous population of Hispaniola from 250,000 to 15,000 in two decades of Spanish rule. Given the genocidal result of Spanish “civilization,” they began to question vocally the idea of a civilizing mission. Bartolomé de Las Casas and Franciscus de Victoria were two of the most influential critics of Spanish colonial practice. Victoria gave a series of lectures on Indian rights that applied Thomistic humanism to the practice of Spanish rule. He argued that all human beings share the capacity for rationality and have natural rights that stem from this capacity. From this premise, he deduced that the Papal decision to grant Spain title to the Americas was illegitimate. Unlike the position of Pope Innocent IV, Victoria argued that neither the Pope nor the Spaniards could subjugate the Indians in order to punish violations of natural law, such as fornication or adultery. He noted that the Pope has no right to make war on Christians and take their property simply because they are “fornicators or thieves.” If this were the case, then no European king’s dominion would ever be safe. Furthermore, according to Victoria, the pope and Christian rulers acting on his mandate have even less right to enforce laws against unbelievers, because they are outside of the Christian community, which is the domain of Papal authority (Williams 1990).

Despite this strongly worded critique of the dominant modes of justifying Spanish conquest, Victoria concluded that the use of force in the New World was legitimate in cases when Indian communities violated the Law of Nations, a set of principles derivable from reason and therefore universally binding. At first it might sound contradictory that Victoria concluded that the Indians’ supposed violation of the law of nature did not justify conquest but their violation of the Law of Nations, itself derived from natural law, did. Victoria emphasized that the Law of Nations is binding because “there exists clearly enough a consensus of the greater part of the whole world” (391) and because the principles benefit “the common good of all.” This distinction seems to rely on the assumption that other principles usually associated with natural law (such as the prohibitions on adultery and idolatry) only affect those who consent to the practices, whereas violations of the Law of Nations (e.g. prohibitions on peaceful travel and trade) have consequences for those who do not consent. Ultimately, Victoria’s understanding of the Law of Nations led him to defend the practice of Spanish colonialism, even as he emphasized that the Spanish remedy of warfare should be limited to minimal measures required to attain the legitimate objectives of peaceful trade and missionary work. Within Victoria’s critique of the legality and morality of Spanish colonialism was a rationalization for conquest, albeit a restrictive one.

3. Liberalism and Empire

The legitimacy of colonialism was also a topic of debate among French, German, and British philosophers in the eighteenth and nineteenth centuries. Enlightenment thinkers such as Kant, Smith and Diderot were critical of the barbarity of colonialism and challenged the idea that Europeans had the obligation to “civilize” the rest of the world. At first it might seem relatively obvious that Enlightenment thinkers would develop a critique of colonialism. The system of colonial domination, which involved some combination of slavery, quasi-feudal forced labor, or expropriation of property, is antithetical to the basic Enlightenment principle that each individual is capable of reason and self-government. The rise of anti-colonial political theory, however, required more than a universalistic ethic that recognized the shared humanity of all people. As suggested above, the universalism and humanism of Thomism proved to be a relatively weak basis for criticizing colonialism. Given the tension between the abstract universalism of natural law and the actual cultural practices of indigenous peoples, it was easy to interpret native difference as evidence for the violation of natural law. This in turn became a justification for exploitation.

Diderot was one of the most forceful critics of European colonization. In his Histoire des deux Indes, he challenged the view that indigenous people benefit from European civilization and argued that the European colonists are the uncivilized ones. He claimed that culture (“national character”) helps to inculcate morality and reinforces norms of respect, but these norms tend to dissipate when the individual is far from his country of origin. Colonial empires, he believed, frequently become the sites of extreme brutality because when the colonists were far away from legal institutions and informal sanctions, the habits of restraint fell away, exposing natural man’s full instinct for violence (Muthu 2003).

In Book VIII of Histoire des deux Indes, Diderot also refutes the dominant justifications for European colonialism. Although he grants that it is legitimate to colonize an area that is not actually inhabited, he insists that foreign traders and explorers have no right of access to fully inhabited lands. This is important because the right to commerce (understood to encompass not only trade but also missionary work and exploration) was used as a justification for colonization by Spanish thinkers in the sixteenth and seventeenth century. Emblematic of this approach was Victoria’s conclusion that an indigenous people could not exclude peaceful traders and missionaries without violating the Law of Nations. If the native peoples resisted these incursions, the Spanish could legitimately wage war and conquer their territory. Diderot specifically challenged this view, noting that the European traders have proven themselves “dangerous as guests.” (Muthu 2003: 75)

Before enlightenment thinkers could articulate a compelling critique of colonialism, they had to recognize the importance of culture and the possibility of cultural pluralism. The claim that all individuals are equally worthy of dignity and respect was a necessary but not sufficient basis for anti-imperialist thought. They also had to recognize that the tendency to develop diverse institutions, narratives, and aesthetic practices was an essential human capacity. The French term moeurs or what today would be called culture captures the idea that the humanity of human beings is expressed in the distinctive practices that they adopt as solutions to the challenges of existence.

The work of enlightenment anti-imperialists such as Diderot and Kant reflects their struggle with the tension between universalistic concepts such as human rights and the realities of cultural pluralism. The paradox of enlightenment anti-imperialism is that human dignity is understood to be rooted in the universal human capacity for reason. Yet when people engage in cultural practices that are unfamiliar or disturbing to the European observer, they appear irrational and thus undeserving of recognition and respect. Diderot’s solution was to identify particularity as the universal human trait. In other words, he emphasized that human beings all share similar desires to create workable rules of conduct that allow particular ways of life to flourish without themselves creating harsh injustices and cruelties. (Muthu 2003: 77) There are infinite varieties of solutions to the challenges posed by human existence. Societies all need to find a way to balance individual egoism and sociability and to overcome the adversities that stem from the physical environment. From this perspective, culture itself, rather than rationality, is the universal human capacity.

Unlike many other eighteenth and nineteenth century political philosophers, Diderot did not assume that non-Western societies were necessarily primitive (e.g. lacking political and social organization) nor did he assume that more complex forms of social organization were necessarily superior. One of the key issues that distinguished critics from proponents of colonialism and imperialism was their view of the relationship between culture, history and progress. Most of the influential philosophers writing in France and England in the eighteenth and nineteenth centuries had assimilated some version of the developmental approach to history that was associated with the Scottish Enlightenment. While the Scots quite consciously took their lead from Montesquieu, they went on to develop a unique and profoundly influential eighteenth-century historical narrative known as the four-stages thesis. In that story, all societies were imagined as naturally moving from hunting, to herding, to farming, to commerce, a developmental process that simultaneously tracked a cultural arc from “savagery,” through “barbarism,” to “civilization.” This meant that for the Scots, “civilization” was not just a marker of material improvement, but also a normative judgment about the moral progress of society. The Scottish Enlightenment thinkers were central to the creation of an historical imaginary that described a civilizing process, one marked most significantly by increasing refinement in modes of social interaction, which they saw as tied to the advent of commercial society. This, in turn, produced a historical narrative, which celebrated the emergence of a shared Western civilization based on the emergence of wealth and commerce (Kohn and O’Neill 2006)

The language of civilization, savagery, and barbarism is pervasive in writers as diverse of Edmund Burke, Karl Marx, and John Stuart Mill. It would therefore be incorrect to conclude that a developmental theory of history is somehow particular to the liberal tradition; nevertheless, given that figures of the Scottish Enlightenment such as Ferguson and Smith were among its leading expositors, it is strongly associated with liberalism. Smith himself opposed imperialism for economic reasons. He felt that relations of dependence between metropole and periphery distorted self-regulating market mechanisms and worried that the cost of military domination would be burdensome for taxpayers (Pitts 2005). The idea that civilization is the culmination of a process of historical development, however, proved useful in justifying imperialism. According to Uday Mehta, liberal imperialism was the product of the interaction between universalism and developmental history (1999). A core doctrine of liberalism holds that all individuals share a capacity for reason and self-government. The theory of development history, however, modifies this universalism with the notion that these capacities only emerge at a certain stage of civilization. For example, according to John Stuart Mill (hereafter Mill), savages do not have the capacity for self-government because of their excessive love of freedom. Serfs, slaves, and peasants in barbarous societies, on the other hand, may be so schooled in obedience that their capacity for rationality is stifled. Only in commercial society are the material and cultural conditions ideal for individuals to realize and exercise their potential. The consequence of this logic is that civilized societies like Great Britain are acting in the interest of less-developed peoples by governing them. Imperialism, from this perspective, is not primarily a form of political domination and economic exploitation but rather a paternalistic practice of government that exports “civilization” (e.g. modernization) in order to foster the improvement and native peoples. Despotic government (and Mill doesn’t hesitate to use this term) is a means to the end of improvement and ultimately self-government.

Of course, Mill, a life-long employee of the British East India Company, recognized that despotic government by a foreign people could lead to injustice and economic exploitation. These abuses, in turn, if unchecked, could undermine the legitimacy and efficacy of the imperial project. In Considerations on Representative Government (1861), Mill identified four reasons why foreign peoples were not suited to governing dependencies. First, metropolitan politicians were unlikely to have the knowledge of local conditions that was necessary for effectively solving problems of public policy. Second, given cultural, linguistic, and often religious difference, European colonists were unlikely to sympathize with the native peoples and more likely to act tyrannically. Third, even if the Englishmen abroad really tried to act fairly to native peoples, their natural tendency to sympathize with those similar to themselves (other foreign colonists or merchants) would likely lead to distorted judgment in cases of disputes. Finally, British colonists and merchants went abroad primarily to acquire wealth with no long term investment and little effort, which meant that their economic activity was likely to exploit rather than develop the country. These arguments also echoed points made in Edmund Burke’s voluminous writings assailing the misgovernment in India, most notably Burke’s famous Speech on Fox’s East India Bill (1783).

For Mill, parliamentary oversight was no solution. First of all, it would politicize decisions, making imperial policy a result of the factional struggles of party politics rather than technocratic expertise. Furthermore, given that members of the House of Commons were accountable to their domestic electors, it would guarantee that imperial policy would be aimed exclusively at maximizing British self-interest rather than promoting good government and economic development in the dependencies. Mill’s solution to the problem of imperial misgovernment was to eschew parliamentary oversight in favor of a specialized administrative corps. Members of this specialized body would have the training to acquire relevant knowledge of local conditions. Paid by the government, they would not personally benefit from economic exploitation and could fairly arbitrate conflicts between colonists and indigenous people. Mill, however, was not able to explain how to ensure good government in a situation in which those wielding political power were not accountable to the population. In this sense, Mill’s writing is emblematic of the failure of liberal imperial thought.

Nineteenth century liberal thinkers held a range of views on the legitimacy of foreign domination and differed about what tactics should be used to achieve that goal. Alexis de Tocqueville, for example, made a case for colonialism that did not rely on the idea of a “civilizing mission.” Tocqueville recognized that colonialism probably did not bring good government to the native peoples, but this was irrelevant since his justification rested entirely on the benefit to France. Tocqueville insisted that French colonies in Algeria would increase France’s stature vis-à-vis rivals like England; they would provide an outlet for excess population that was a cause of disorder in France; and imperial endeavors would incite a feeling of patriotism that would counterbalance the modern centrifugal forces of materialism and class conflict.

Tocqueville was actively engaged in advancing the project of French colonization of Algeria. Tocqueville’s first analysis of French colonialism was published during his 1837 electoral campaign for a seat in the Chamber of Deputies. As a member of the Chamber of Deputies, Tocqueville argued in favor of expanding the French presence in Algeria. He traveled to Algeria in 1841 composing an “Essay on Algeria” that served as the basis for two parliamentary reports on the topic (Tocqueville 2001). Unlike the more naïve proponents of the “civilizing mission,” Tocqueville recognized that the brutal military occupation did little to introduce good government or advance civilization. In an apparent reversal of the four-stages theory of the Scottish Enlightenment, he acknowledged that “we are now fighting far more barbarously than the Arabs themselves” and “it is on their side that one meets with civilization.” (Tocqueville 2001: 70) This realization, however, was not the basis of a critique of French brutality. Instead, Tocqueville defended controversial tactics such as destroying crops, confiscating land, and seizing unarmed civilians. His texts, however, provide little in the way of philosophical justification and dismiss the entire just war tradition with a curt statement that “I believe that the right of war authorizes us to ravage the country.” (Tocqueville 2001: 70). Tocqueville’s writing on Algeria, the French national interest is paramount and moral considerations are explicitly subordinate to political goals.

Tocqueville’s analysis of Algeria reflects little anxiety about its legitimacy and much concern about the pragmatics of effective colonial governance. The stability of the regime, he felt, depended on the ability of the colonial administration to provide good government to the French settlers. Tocqueville emphasized that the excessive centralization of decision-making in Paris combined with the arbitrary practices of the local military leadership meant that French colonists had no security of property, let alone the political and civil rights that they were accustomed to France. Tocqueville was untroubled by the use of martial law against indigenous peoples, but felt that it was counterproductive when applied to the French. For Tocqueville, the success of the French endeavor in Algeria depended entirely on attracting large numbers of permanent French settlers. Given that it was proving impossible to win the allegiance of the indigenous people, France could not hold Algeria without creating a stable community of colonists. The natives were to be ruled through military domination and the French were to be enticed to settle through the promise of economic gain in an environment that reproduced, as much as possible, the cultural and political life of France. After a brief period of optimism about “amalgamation” of the races in his Second Letter on Algeria” (Tocqueville 2001: 25), Tocqueville understood the colonial world in terms of the permanent opposition of settler and native, an opposition structured to ensure the economic benefit of the former.

4. Marxism and Leninism

In recent years, scholars have devoted less attention to the debates on colonialism within the Marxist tradition. This reflects the waning influence of Marxism in the academy and in political circles more generally. Marxism, however, has been extremely influential on both post-colonial theory and anti-colonial independence movements around the world. Marxists have drawn attention to the material basis of European political expansion and developed concepts that help explain the persistence of economic exploitation after the end of direct political rule.

Although Marx never developed a theory of colonialism, his analysis of capitalism emphasized its inherent tendency to expand in search of new markets. In his classics works such as The Communist Manifesto, Grundrisse, and Capital, Marx predicted that the bourgeoisie would continue to create a global market and undermine any local or national barriers to its own expansion. Expansion is a necessary product of the core dynamic of capitalism: overproduction. Competition among producers drives them to cut wages, which in turn leads to a crisis of under-consumption. The only way to prevent economic collapse is to find new markets to absorb excess consumer goods. For a Marxist perspective, some form of imperialism is inevitable. By exporting population to resource rich foreign territories, a nation creates a market for industrial goods and a reliable source of natural resources. Alternately, weaker countries can face the choice of either voluntarily admitting foreign products that will undermine domestic industry or submitting to political domination, which will accomplish the same end.

In a series of newspaper articles published in the 1850s in the New York Daily Tribune, Marx specifically discussed the impact of British colonialism in India. His analysis was consistent with his general theory of political and economic change. He described India as an essentially feudal society experiencing the painful process of modernization. According to Marx, however, Indian “feudalism” was a distinctive form because, he believed (incorrectly) that agricultural land in India was owned communally. Marx used the concept of “Oriental despotism” to describe a specific type of class domination that used the mechanism of the state and taxation in order to extract resources from the peasantry. Oriental despotism emerged in India because agricultural productivity depended on large-scale public works that could only be financed by the state, particularly irrigation. This meant that the state could not be easily replaced by a more decentralized system of authority. In Western Europe, feudal property could be transformed gradually into privately owned, alienable property in land. In India, communal land ownership made this impossible, thereby blocking the development of commercial agriculture and free markets. Since “oriental despotism” inhibited the indigenous development of economic modernization, British domination became the agent of economic modernization.

Marx’s analysis of colonialism as a progressive force bringing modernization to a backward feudal society sounds like a transparent rationalization for foreign domination. His endorsement of British domination, however, reflects the same ambivalence that he shows towards capitalism in Europe. In both cases, Marx recognized the immense suffering brought about during the transition from feudal to bourgeois society while insisting that the transition is both necessary and ultimately progressive. He argued that the penetration of foreign commerce is causing a social revolution in India. For Marx, this upheaval has both positive and negative ramifications. When peasants loose their traditional livelihoods, there is a great deal of human suffering, but he also pointed out that the traditional village communities were hardly idyllic; they were sites of caste oppression, slavery, misery, and cruelty. The first stage of this process is entirely negative, because it involves heavy burdens of taxation to support British rule and economic upheaval due to the glut of cheaply produced English cotton. Eventually, however, British merchants begin to realize that Indians cannot pay for imported cloth or administrators if they don’t efficiently produce goods to trade, which provides an incentive for British investment in production and infrastructure. Even though Marx believed that British rule was motivated by greed and exercised through cruelty, he felt it was still unwittingly the agent of progress. Thus, Marx’s discussion of British rule in India has three dimensions: an account of the progressive character of foreign rule, a critique of the human suffering involved, and a concluding argument that British rule must be temporary if the progressive potential it unleashed is to be realized.

Lenin developed his analysis of Western economic and political domination in his pamphlet Imperialism: The Highest Stage of Capitalism (1917) (see Other Internet Resources). Unlike Marx, Lenin took a more explicitly critical view of imperialism. He noted that imperialism was a technique which allowed European countries to put off the inevitable domestic revolutionary crisis by exporting their own economic burdens onto weaker states. Lenin argued that late-nineteenth century imperialism was driven by the economic logic of late-capitalism. The falling rate of profit caused an economic crisis which could only be resolved through territorial expansion. Capitalist conglomerates were compelled to expand beyond their national borders in pursuit of new markets and resources. In a sense, this analysis is fully consistent with Marx, who saw European colonialism as continuous with the process of internal expansion within states and across Europe. From this perspective, colonialism and imperialism resulted from the same logic that drove the economic development and modernization of peripheral areas in Europe. But there was one difference. Since late capitalism was organized around national monopolies, the competition for markets took the form of military competition between states over territories that could be dominated for their exclusive economic benefit.

Marxist theorists including Rosa Luxemburg, Karl Kautsky, and Nikolai Bukharin also explored the issue of imperialism. Kautsky’s position is especially important because his analysis introduced concepts that continue to play a prominent role in contemporary world systems theory and post-colonial studies. Kautsky challenged the assumption that imperialism would lead to the development of the areas subjected to economic exploitation. He suggested that imperialism was a relatively permanent relationship structuring the interactions between two types of countries. (Young 2001) Although imperialism initially took the form of military competition between capitalist countries, it would result in collusion between capitalist interests to maintain a stable system of exploitation of the non-developed world. The most influential contemporary proponent of this view is Immanuel Wallerstein, who is known for world-system theory. According to this theory, the world-system involves a relatively stable set of relations between core and peripheral states as a functional in internal division of labor that is structured to benefit the core states (Wallerstein 1974-1989).

5. Post-colonial Theory

From the perspective of world-system theory, the economic exploitation of the periphery does not necessarily require direct political or military domination. In a similar vein, contemporary literary theorists have drawn attention to practices of representation that reproduce a logic of subordination that endures even after former colonies gain independence. The field of postcolonial studies was established by Edward Said in his path-breaking book Orientalism. In Orientalism Said applied Michel Foucault’s technique of discourse analysis to the production of knowledge about the Middle East. The term orientalism described a structured set of concepts, assumptions, and discursive practices that were used to produce, interpret, and evaluate knowledge about non-European peoples. Said’s analysis made it possible for scholars to deconstruct literary and historical texts in order to understand how they reflected and reinforced the imperialist project. Unlike previous studies that focused on the economic or political logics of colonialism, Said drew attention to the relationship between knowledge and power. By foregrounding the cultural and epistemological work of imperialism, Said was able to undermine the ideological assumption of value-free knowledge and show that “knowing the Orient” was part of the project of dominating it. Thus, Orientalism can be seen as an attempt to extend the geographical and historical terrain of the poststructuralist critique of Western epistemology.

Said uses the term Orientalism in several different ways. First, Orientalism is a specific field of academic study about the Middle East and Asia, albeit one that Said conceives quite expansively as including history, sociology, literature, anthropology and especially philology. He also identifies it as a practice that helps define Europe by creating a stable depiction of its other, its constitutive outside. Orientalism is a way of characterizing Europe by drawing a contrasting image or idea, based on a series of binary oppositions (rational/irrational, mind/body, order/chaos) that manage and displace European anxieties. Finally, Said emphasizes that it is also a mode of exercising authority by organizing and classifying knowledge about the Orient. This discursive approach is distinct both from a vulgar materialist assumption that knowledge is simply a reflection of economic or political interests and from an idealist conviction that scholarship is disinterested and neutral. Following Foucault, Said’s concept of discourse identifies a way in which knowledge is not used instrumentally in service of power but rather is itself a form of power.

The second quasi-canonical contribution to the field of post-colonial theory is Gayatri Spivak’s “Can the Subaltern Speak?” Spivak works within Said’s problematic of representation but extends it to the contemporary academy. By posing the question “Can the subaltern speak?” she asks whether the scholarly interest in non-Western cultures may unwittingly reproduce a new kind of orientalism, whereby academic theorists mine non-Western sources in order to speak authoritatively in their place. Even though the goal is to challenge the existing Eurocentrism of the academy, post-colonial studies is particularly vulnerable to the risks associated with any claim to speak authoritatively on behalf of the subaltern. Thus the field of post-colonial studies is haunted by its own impossibility. It was born out of the recognition that representation is inevitably implicated in power and domination yet struggles to reconfigure representation as an act of resistance. In order to do so, it introduces new strategies of reading and interpretation while recognizing the limitations of this endeavor.

The core problematic of post-colonial theory is an examination of the relationship between power and knowledge in the non-Western world. Some scholars have approached this topic through historical research rather than literary or discursive analysis. The most influential movement is the Subaltern Studies group, which was originally made up of South Asian historians who explored the contribution of non-elites to Indian politics and culture. The term subaltern suggests an interest in social class but more generally it is also a methodological orientation that opens up the study of logics of subordination. Whereas Said raised the broad issue of Orientalism, the Subaltern Studies group dismantled particular hegemonic narratives of Indian colonial history. According to Spivak, the Subaltern Studies group developed two important challenges to the narrative of Indian colonial history as a change from semi-feudalism to capitalist domination. First, they showed that the moment of change must be pluralized as a story of multiple confrontations involving domination and resistance rather than a simple great modes-of-production narrative. Second, these epochal shifts are marked by a multidimensional change in sign-system from the religious to the militant, crime to insurgency, bondsman to worker (Guha and Spivak 1988: 3)

The work of the Subaltern Studies group is emblematic of the way that post-colonial theory often inhabits the terrain between post-structuralism and Marxism, two traditions that have many differences as well as some commonalities. Despite the fact that many practitioners of the field are sympathetic to both traditions, other scholars highlight the incompatibility of the two. For example, Aijaz Ahmad has criticized post-colonialist theory from a Marxist perspective, arguing that its infatuation with issues of representation and discourse makes it blind to the material basis and systematic structure of power relations. The use of concepts such as hybridity easily degenerates into a kind of eclecticism that gestures at radical resistance while denying the theoretical basis of any theory of revolutionary change. Ahmad also argued that the influence of Said’s Orientalism was due not to its originality but, on the contrary, to its conventionality. According to Ahmad, Orientalism benefited from its affinity with two problematic intellectual fashions: the reaction against Marxism that lead to the vogue for post-structuralism and the “Third-worldism” that provided academics with a veneer of radicalism. Said, for his part, also developed a sustained critique of Marxism. In Orientalism, Said argued that Marx’s explicit defense of British colonialism was emblematic of his own implication in Orientalist discourse. Furthermore, for Said, Marx’s position was not merely a personal failure but instead reflected a more general problem with totalizing theory that he felt tended to marginalize any signs of difference that undermined Marx’s narrative of progress.

To conclude, it is worth noting that some scholars have begun to question the usefulness of the concept post-colonial theory. Like the idea of the Scottish four stages theory, a theory with which it would appear to have little in common, the very concept of post-colonialism seems to rely on a progressive understanding of history (McClintock 1992)). It suggests, perhaps unwittingly, that the core concepts of hybridity, alterity, particularly, and multiplicity may lead to a kind of methodological dogmatism or developmental logic. Moreover, the term “colonial” as a marker of this domain of inquiry is also problematic in so far as it suggests historically implausible commonalities across territories that experienced very different techniques of domination. Thus, the critical impulse behind post-colonial theory has turned on itself, drawing attention to the way that it may itself be marked by the utopian desire to transcend the trauma of colonialism (Gandhi 1998).

The Marxist Philosophy of Louis Althusser

Posted in Uncategorized by drsivalaw on February 25, 2010

Louis Pierre Althusser (1918–1990) was one of the most influential Marxist philosophers of the 20th Century. As they seemed to offer a renewal of Marxist thought as well as to render Marxism philosophically respectable, the claims he advanced in the 1960s about Marxist philosophy were discussed and debated worldwide. Due to apparent reversals in his theoretical positions, to the ill-fated facts of his life, and to the historical fortunes of Marxism in the late twentieth century, this intense interest in Althusser’s reading of Marx did not survive the 1970s.

Despite its being anthologized and translated during the mid 1990s, there has been relatively little critical attention paid to Althusser’s writings prior to 1961. The reason for this lack of interest may be that the Althusser found in these works is manifestly not the Althusser of For Marx and Reading Capital. In his writings from the 1940s, for instance, he resembles the Marxist Humanists of whom he would later be so critical, while texts from the 1950s deploy without irony the Stalinist shibboleths he would later subject to such castigation. Nonetheless, as these texts announce many of Althusser’s perennial themes and because some of the contradictions these works possess are shared with his classic texts and are repeated again in his late work, these early essays, books, and translations are worthy of examination.

1 Christianity and Marxism

Althusser’s philosophical output between 1946 and 1961 can roughly be divided into four categories. The first category includes those essays, mostly written between 1946 and 1951, where Althusser explores possible rapports between Christianity and Marxism. In the first of these essays “The International of Decent Feelings,” Althusser argues from what he takes to be “the truth of Christianity” against the popular post-war view that the misery, guilt, and alienation of the human condition in the atomic age is equally experienced by all subjects. For him, this existentialist diagnosis is a type of idolatry: it replaces recognition of our equality before God with our equality before the fear of death. In that it does so, it is twice anti-Christian. For, in addition to the sin of idolatry (death equals God), it fails to acknowledge the existence of a particular class, the proletariat, for whom anguish is not its lot and who is actually capable of delivering the emancipation from fear by re-appropriating the products of human production, including the atomic bomb. A subsequent essay from 1947, “A Matter of Fact,” continues in this vein, suggesting the necessity of socialist means for realizing Christian ends. It also includes a Hegelian critique of the existing Catholic Church which suggests that the church is incapable of such an alliance without a theological revolution. Each of these essays includes the suggestion that critique and reform will occasion a better church and a truer Christianity. By 1949, however, Althusser was totally pessimistic about this possibility and, in a letter to his mentor Jean Lacroix, he argued that the sole possibility for realizing Christian values is through communist action. Though some critics have argued that Christian and Catholic values and modes of reasoning inform all of Althusser’s philosophy, any explicit consideration of a practical and theoretical reconciliation between the two was abandoned at this point in Althusser’s development.

2 Hegelian Marxism

The second category of Althusser’s early work, one closely related to the first, are those texts that deal with Hegel. Written primarily for an academic audience, they approach Hegel’s philosophy either critically, in terms of the history of its reception and use, or exegetically, in terms of examining what possibility Hegel’s metaphysics, logic, politics, epistemology, and understanding of subjectivity offer to those interested in understanding and encouraging societal transformation. Between 1946 and 1950, the results of Althusser’s exegeses were positive: Hegel indeed had something to offer. This judgment finds its most detailed explanation in Althusser’s 1947 thesis “On Content in the thought of G.W.F. Hegel.” In addition to detailing Hegel’s relation to Kant and criticizing the simplification of the dialectic by Hegel’s commentators, Althusser argues in this work that the dialectic “cannot be attacked for its form” (1947, 116). Instead, Hegel can only be critiqued for a failure of the contents of the form (as these contents are specified in Hegel’s historical and political works) to have actually fulfilled the absolute idea. Following the Young Hegelians, then, Althusser uses Hegel’s dialectic against itself to criticize claims like the one made in The Philosophy of Right that the Prussian state is the fulfillment of the dialectic. Though he uses Marx’s Critique of Hegel’s Philosophy of Right to make his points and though he is in agreement with Marx that the Hegelian concept, realized in thought, must now be realized in the world, Althusser does not suggest in his thesis that Marx’s philosophy leaves Hegel’s insights about, history, logic, and the subject behind. Instead, he contends that Marx is guilty of committing the same error as Hegel in mistaking historical content for the fulfillment of the dialectic. Because all knowledge is historical, Althusser argues, Marxists can only correct for this error by appeal to the idea of the dialectic and to its end in the absolute and the eternal, to a time “when the human totality will be reconciled with its own structure” (1947, 156). Something like this argument will appear again in his classical work as a critique of the empiricist tendency in Marxist philosophy.

3 Marx not Hegel

By the early 1950s, Althusser’s judgments that Marxism was, of necessity, Hegelian and that it aimed at human fulfillment had undergone revision. This transition to thinking about Marx as the originator of a philosophy totally distinct from Hegel’s was signaled in a review essay from 1950 which argued that the post-war mania for Hegel in France was only a bourgeois attempt to combat Marx. In two short essays from 1953 on Marxist philosophy, this switch is fully apparent. In these texts, Althusser aligns himself with the position advanced by Mehring and Lenin that, at a certain point in Marx’s development, Hegel is left behind and that, afterwards, Marx forged his own original concepts and methodology. In his description of what these concepts and methodology are, Althusser pretty much follows the Party line, insisting that Marx reversed the Hegelian dialectic, that historical materialism is a science, that the sciences verify dialectical materialism, and that the proletariat needs to be taught Marxist science from above. Though these essays repeat the Party philosophy as formulated by Lenin, Stalin, and Zhdanov, they also include recognizable Althusserian themes and show his thinking about these themes to be in transition. For instance, both essays retain the idea from Althusser’s 1957 thesis about the quasi-transcendental status of present scientific knowledge. Both also anticipate future concerns in their speculations about the ideological character of current scientific knowledge and in their incorporation of ideas from Mao about the relationship between theory and practice. Written as a response to Paul Ricoeur and representing the last example of this third category of Althusser’s early work, a text from 1955 argues for the objectivity of historical science. This is a theme to which he would return. Noticeably absent from this body of work, however, are the detailed and original claims Althusser would make in the early 1960s about Marx’s philosophy.

4 Historical Work: Montesquieu and Feuerbach

Two essays that Althusser wrote in the mid 1950s were the first to focus exclusively on Marxist philosophy and are interesting inasmuch as they evidence his rejection of Hegel and his embrace of the Party’s Marxism-Leninism. In addition, these texts suggest the need for a thorough study of Marx. This study, however, would wait until the beginning of the next decade. For the rest of the 1950s, most of Althusser’s published work involved the study of philosophical figures who preceded Marx. These figures included Montesquieu, on whose political philosophy and theory of history he wrote a book-length study, and Feuerbach, whose writings he translated and commented upon. The dual thesis of Althusser’s Montesquieu book: that, insofar as Montesquieu studies the “concrete behavior of men” he resists idealism and inaugurates the study of history as a science and that, insofar as Montesquieu accepts past and present political formations as delimiting the possibilities for political life, he remains an idealist, is one that will find echoes in Althusser’s study of Marx during the next decade. Similarly, inasmuch as he makes the argument in a commentary (1960) that part of his intention in translating Feuerbach is to show just what Marx owes in his early writings to the author of The Essence of Christianity so that these may be better seen as absent from Marx’s mature work, these studies of Feuerbach can also be seen as propaedeutic to the study of Marx which Althusser inaugurated in 1961 with his article “On the Young Marx.

The Role of Philosophy

According to Althusser, most activity labeled “philosophy” is really a type of ideological production. By this, he means to say that most philosophy reproduces, in highly abstract form, notions about the world whose effect is to sustain existing socio-economic relations. As such, philosophy merely reflects the background values, attitudes, and ideas that allow the socio-economic world to function. However, for Althusser, genuine philosophy functions as a “Theory of theoretical practice” (1965b). In this mode, it works to provide an aid to scientific practice by distinguishing between ideological concepts and scientific ones as well as by clarifying and rendering consistent the scientific concepts that enable a science to transforms existing ideas into scientific knowledge.

For Althusser, it is not necessary that this process of distinction and clarification be accomplished before a specific theoretical practice can generate scientific knowledge. In fact, scientific activity often proceeds without a clear understanding of the concepts that allow it to produce its knowledge. Indeed, Althusser maintained that this was Marx’s lot when he was writing Capital: scientific knowledge of the capitalist economic system was being produced, but Marx did not possess a full awareness of the concepts allowing this production. According to this definition of philosophy as the Theory of theoretical practice, Althusser’s re-reading of Capital and other texts was philosophical insofar as it was able to name and distinguish the concepts that allowed Marx’s scientific analysis of history to proceed.

Marxist Philosophy

The latent concepts rendered explicit by the practice of symptomatic reading were said by Althusser to constitute the theory of Dialectical Materialism, or what is the same thing, Marx’s philosophy. With these concepts made explicit, Althusser believed that Marxist science, or Historical Materialism, could employ them in order to achieve better analyses of specific modes of production and better understandings of the opportunities that specific modes of production presented for political change. Some of these concepts have already been articulated in the discussion of the mode of production above, but without being named. To label these concepts and then to add some more, the idea that each individual productive process or element stands in relation to and plays a part of a complexly structured whole, none of which is reducible to being the simple or essential cause of the others, is what Althusser terms the idea of “structural causality.” This concept, in turn, is closely related to the idea of “overdetermination” or the theory that every element in the total productive process constituting a historical moment is determined by all the others.

Another Marxist philosophical concept that allows the historical materialist scientist to understand the logic of a specific mode of production is that of “contradiction.” This is the idea that, at any given period, multiple, concrete and definite practices take place within a mode of production. Among and within these specific practices, there may or may not be tensions. To take an example from Marx’s chapter on “Primitive Accumulation” in Capital V.I, at the same time as peasants holdings were being expropriated in the late 15th and early 16th centuries by a nascent bourgeoisie, the church and the aristocracy were passing laws against this appropriation. Any isolable element of the total structure, be it a person, a social class, an institution, or the state, in some way reflects and embodies these practices and these antagonisms and as such each is said to be “overdetermined.” Further, Althusser specifies that the development of productive practices within a specific mode of production is often “uneven” in addition to possibly being antagonistic. This means, for instance, that some economic elements within a whole may be more or less capitalistic while others simultaneously operate according to socialist norms. Thus the development within a mode of production of the practices specific to it is not necessarily homogenous or linear.

Added to the Marxian concepts of structural causality, contradiction, uneven development, and overdetermination is that of the “structure in dominance.” This concept designates that major element in a structural whole that tends to organize all of the other practices. In much of the contemporary world and inasmuch as it tends to organize the production of moral values, scientific knowledge, the family, art, etc. this structure is the economic practice of commodity production and consumption. However, in another era and in other places, it may be the production and dissemination of religious beliefs and practices that dominates and organizes the socio-economic structure.

Social and Political Philosophy, Historiography

With this understanding of the elements that compose any socio-economic structure and their relations made explicit, something can now be said about the social and political philosophies that follow from it. First, with the idea that human individuals are merely one of the sites at which the contradictory productive forces that characterize an era are enacted, Althusser signals that the primary object of social philosophy is not the human individual. Second, with the idea that the state produced by political activity is merely one productive process among others, Althusser signals that the primary element in political philosophy is not the state. Though both states and individuals are important elements of the socio-economic whole, nothing philosophical is learned by examining the essence of the individual or the way in which justice is embodied by the state.

As Althusser understands them, whatever conceptions we have of the nature of human beings or about the proper function of the state are historically generated and serve to reproduce existing social relations. In other words, they are ideological. Apart from the necessity of human beings to engage in productive relations with other human beings and with their environment in order to produce their means of subsistence, there is no human nature or essence. This is the core of Althusser’s “anti-humanist” position. Further, though some order must exist in order to allow for the production and reproduction of social life, there is no essential or best form that this order must take. This is not to say that human beings do not conceive of or strive for the best order for social life or that they do not believe that they are essentially free or equal and deserving of rights. It also does not mean that all of our ideas are homogenous and that heterogeneous ideas about what is best cannot exist side by side in the same system without leading to conflict (though they sometimes do). However, the science of Historical Materialism has revealed the desire for such orders to be historically generated along with the ideas about human nature that justify them.

This account of the ideological role of our conceptions of human nature and of the best political arrangement shows Althusser to differ little from interpretations of Marx which hold that political ideologies are the product of and serve existing economic relations. However, and as was detailed above, Althusser rejects the simple understanding of causality offered by this model in which economic practices order consciousness and our cultural practices. He also rejects the philosophy of history that often accompanies this model. This philosophy has it that certain economic practices not only generate corresponding cultural practices, but that there is a pattern to economic development in which each economic order inexorably leads to its own demise and replacement by a different economic system. In this understanding of history, feudalism must lead to capitalism and capitalism to socialism. Althusser, however, argues against the idea that history has a subject (such as the economy or human agency) and that history has a goal (such as communism or human freedom). History, for Althusser, is a process without a subject. There are patterns and orders to historical life and there is historical change. However, there is no necessity to any of these transformations and history does not necessarily progress. Transformations do occur. However, they do so only when the contradictions and levels of development inherent in a mode of production allow for such change.

Marxism

Posted in Uncategorized by drsivalaw on February 25, 2010

Karl Marx (1818-1883) is best known not as a philosopher but as a revolutionary communist, whose works inspired the foundation of many communist regimes in the twentieth century. It is hard to think of many who have had as much influence in the creation of the modern world.

1. Marx’s Life and Works

Karl Marx was born in Trier, in the German Rhineland, in 1818. Although his family was Jewish they converted to Christianity so that his father could pursue his career as a lawyer in the face of Prussia’s anti-Jewish laws. A precocious schoolchild, Marx studied law in Bonn and Berlin, and then wrote a PhD thesis in Philosophy, comparing the views of Democritus and Epicurus. On completion of his doctorate in 1841 Marx hoped for an academic job, but he had already fallen in with too radical a group of thinkers and there was no real prospect. Turning to journalism, Marx rapidly became involved in political and social issues, and soon found himself having to consider communist theory. Of his many early writings, four, in particular, stand out. ‘Contribution to a Critique of Hegel’s Philosophy of Right, Introduction’, and ‘On The Jewish Question’, were both written in 1843 and published in the Deutsch-Französische Jahrbücher. The Economic and Philosophical Manuscripts, written in Paris 1844, and the ‘Theses on Feuerbach’ of 1845, remained unpublished in Marx’s lifetime.

The German Ideology, co-written with Engels in 1845, was also unpublished but this is where we see Marx beginning to develop his theory of history. The Communist Manifesto is perhaps Marx’s most widely read work, even if it is not the best guide to his thought. This was again jointly written with Engels and published with a great sense of excitement as Marx returned to Germany from exile to take part in the revolution of 1848. With the failure of the revolution Marx moved to London where he remained for the rest of his life. He now concentrated on the study of economics, producing, in 1859, his Contribution to a Critique of Political Economy. This is largely remembered for its Preface, in which Marx sketches out what he calls ‘the guiding principles’ of his thought, on which many interpretations of historical materialism are based. Marx’s main economic work is, of course, Capital Volume 1, published in 1867, although Volume 3, edited by Engels, and published posthumously in 1894, contains much of interest. Finally, the late pamphlet Critique of the Gotha Programme (1875) is an important source for Marx’s reflections on the nature and organisation of communist society.

The works so far mentioned amount only to a small fragment of Marx’s opus, which will eventually run to around 100 large volumes when his collected works are completed. However the items selected above form the most important core from the point of view of Marx’s connection with philosophy, although other works, such as the 18th Brumaire of Louis Napoleon (1852), are often regarded as equally important in assessing Marx’s analysis of concrete political events. In what follows, I shall concentrate on those texts and issues which have been given the greatest attention within the philosophical literature.

2. The Early Writings

The intellectual climate within which the young Marx worked was dominated by the influence of Hegel, and the reaction to Hegel by a group known as the Young Hegelians, who rejected what they regarded as the conservative implications of Hegel’s work. The most significant of these thinkers was Ludwig Feuerbach, who attempted to transform Hegel’s metaphysics, and, thereby, provided a critique of Hegel’s doctrine of religion and the state. A large portion of the philosophical content of Marx’s works written in the early 1840s is a record of his struggle to define his own position in reaction to that of Hegel and Feuerbach and those of the other Young Hegelians.

2.1 ‘On The Jewish Question’

In this text Marx begins to make clear the distance between himself and his radical liberal colleagues among the Young Hegelians; in particular Bruno Bauer. Bauer had recently written against Jewish emancipation, from an atheist perspective, arguing that the religion of both Jews and Christians was a barrier to emancipation. In responding to Bauer, Marx makes one of the most enduring arguments from his early writings, by means of introducing a distinction between political emancipation — essentially the grant of liberal rights and liberties — and human emancipation. Marx’s reply to Bauer is that political emancipation is perfectly compatible with the continued existence of religion, as the contemporary example of the United States demonstrates. However, pushing matters deeper, in an argument reinvented by innumerable critics of liberalism, Marx argues that not only is political emancipation insufficient to bring about human emancipation, it is in some sense also a barrier. Liberal rights and ideas of justice are premised on the idea that each of us needs protection from other human beings. Therefore liberal rights are rights of separation, designed to protect us from such perceived threats. Freedom on such a view, is freedom from interference. What this view overlooks is the possibility — for Marx, the fact — that real freedom is to be found positively in our relations with other people. It is to be found in human community, not in isolation. So insisting on a regime of rights encourages us to view each other in ways which undermine the possibility of the real freedom we may find in human emancipation. Now we should be clear that Marx does not oppose political emancipation, for he sees that liberalism is a great improvement on the systems of prejudice and discrimination which existed in the Germany of his day. Nevertheless, such politically emancipated liberalism must be transcended on the route to genuine human emancipation. Unfortunately, Marx never tells us what human emancipation is, although it is clear that it is closely related to the idea of non-alienated labour, which we will explore below

2.2 ‘Contribution to a Critique of Hegel’s Philosophy of Right, Introduction’

This work is home to the Marx’s notorious remark that religion is the ‘opiate of the people’, and it is here that Marx sets out his account of religion in most detail. Just as importantly Marx here also considers the question of how revolution might be achieved in Germany, and sets out the role of the proletariat in bringing about the emancipation of society as a whole.

With regard to religion, Marx fully accepted Feuerbach’s claim in opposition to traditional theology that human beings had created God in their own image; indeed a view that long pre-dated Feuerbach. Feuerbach’s distinctive contribution was to argue that worshipping God diverted human beings from enjoying their own human powers. While accepting much of Feuerbach’s account Marx’s criticizes Feuerbach on the grounds that he has failed to understand why people fall into religious alienation and so is unable to explain how it can be transcended. Marx’s explanation is that religion is a response to alienation in material life, and therefore cannot be removed until human material life is emancipated, at which point religion will wither away. Precisely what it is about material life that creates religion is not set out with complete clarity. However, it seems that at least two aspects of alienation are responsible. One is alienated labour, which will be explored shortly. A second is the need for human beings to assert their communal essence. Whether or not we explicitly recognize it, human beings exist as a community, and what makes human life possible is our mutual dependence on the vast network of social and economic relations which engulf us all, even though this is rarely acknowledged in our day-to-day life. Marx’s view appears to be that we must, somehow or other, acknowledge our communal existence in our institutions. At first it is ‘deviously acknowledged’ by religion, which creates a false idea of a community in which we are all equal in the eyes of God. After the post-Reformation fragmentation of religion, where religion is no longer able to play the role even of a fake community of equals, the state fills this need by offering us the illusion of a community of citizens, all equal in the eyes of the law. But the state and religion will both be transcended when a genuine community of social and economic equals is created.

Of course we are owed an answer to the question how such a society could be created. It is interesting to read Marx here in the light of his third Thesis on Feuerbach where he criticises an alternative theory. The crude materialism of Robert Owen and others assumes that human beings are fully determined by their material circumstances, and therefore to bring about an emancipated society it is necessary and sufficient to make the right changes to those material circumstances. However, how are those circumstances to be changed? By an enlightened philanthropist like Owen who can miraculously break through the chain of determination which ties down everyone else? Marx’s response, in both the Theses and the Critique, is that the proletariat can break free only by their own self-transforming action. Indeed if they do not create the revolution for themselves — guided, of course, by the philosopher — they will not be fit to receive it.

2.3 Economic and Philosophical Manuscripts

The Economic and Philosophical Manuscripts cover a wide range of topics, including much interesting material on private property and communism, and on money, as well as developing Marx’s critique of Hegel. However, the manuscripts are best known for their account of alienated labour. Here Marx famously depicts the worker under capitalism as suffering from four types of alienated labour. First, from the product, which as soon as it is created is taken away from its producer. Second, in productive activity (work) which is experienced as a torment. Third, from species-being, for humans produce blindly and not in accordance with their truly human powers. Finally, from other human beings, where the relation of exchange replaces the satisfaction of mutual need. That these categories overlap in some respects is not a surprise given Marx’s remarkable methodological ambition in these writings. Essentially he attempts to apply a Hegelian deduction of categories to economics, trying to demonstrate that all the categories of bourgeois economics — wages, rent, exchange, profit, etc. — are ultimately derived from an analysis of the concept of alienation. Consequently each category of alienated labour is supposed to be deducible from the previous one. However, Marx gets no further than deducing categories of alienated labour from each other. Quite possibly in the course of writing he came to understand that a different methodology is required for approaching economic issues. Nevertheless we are left with a very rich text on the nature of alienated labour. The idea of non-alienation has to be inferred from the negative, with the assistance of one short passage at the end of the text ‘On James Mill’ in which non-alienated labour is briefly described in terms which emphasise both the immediate producer’s enjoyment of production as a confirmation of his or her powers, and also the idea that production is to meet the needs of others, thus confirming for both parties our human essence as mutual dependence. Both sides of our species essence are revealed here: our individual human powers and our membership in the human community.

It is important to understand that for Marx alienation is not merely a matter of subjective feeling, or confusion. The bridge between Marx’s early analysis of alienation and his later social theory is the idea that the alienated individual is ‘a plaything of alien forces’, albeit alien forces which are themselves a product of human action. In our daily lives we take decisions that have unintended consequences, which then combine to create large-scale social forces which may have an utterly unpredicted effect. In Marx’s view the institutions of capitalism — themselves the consequences of human behaviour — come back to structure our future behaviour, determining the possibilities of our action. For example, for as long as a capitalist intends to stay in business he must exploit his workers to the legal limit. Whether or not wracked by guilt the capitalist must act as a ruthless exploiter. Similarly the worker must take the best job on offer; there is simply no other sane option. But by doing this we reinforce the very structures that oppress us. The urge to transcend this condition, and to take collective control of our destiny — whatever that would mean in practice — is one of the motivating and sustaining elements of Marx’s social analysis.

2.4 ‘Theses on Feuerbach’

The Theses on Feuerbach contain one of Marx’s most memorable remarks: “the philosophers have only interpreted the world, the point is to change it” (thesis 11). However the eleven theses as a whole provide, in the compass of a couple of pages, a remarkable digest of Marx’s reaction to the philosophy of his day. Several of these have been touched on already (for example, the discussions of religion in theses 4, 6 and 7, and revolution in thesis 3) so here I will concentrate only on the first, most overtly philosophical, thesis.

In the first thesis Marx states his objections to ‘all hitherto existing’ materialism and idealism. Materialism is complimented for understanding the physical reality of the world, but is criticised for ignoring the active role of the human subject in creating the world we perceive. Idealism, at least as developed by Hegel, understands the active nature of the human subject, but confines it to thought or contemplation: the world is created through the categories we impose upon it. Marx combines the insights of both traditions to propose a view in which human beings do indeed create — or at least transform — the world they find themselves in, but this transformation happens not in thought but through actual material activity; not through the imposition of sublime concepts but through the sweat of their brow, with picks and shovels. This historical version of materialism, which transcends and thus rejects all existing philosophical thought, is the foundation of Marx’s later theory of history. As Marx puts it in the 1844 Manuscripts, ‘Industry is the real historical relationship of nature … to man’. This thought, derived from reflection on the history of philosophy, together with his experience of social and economic realities, as a journalist, sets the agenda for all Marx’s future work.

3. Economics

Capital Volume 1 begins with an analysis of the idea of commodity production. A commodity is defined as a useful external object, produced for exchange on a market. Thus two necessary conditions for commodity production are the existence of a market, in which exchange can take place, and a social division of labour, in which different people produce different products, without which there would be no motivation for exchange. Marx suggests that commodities have both use-value — a use in other words — and an exchange-value — initially to be understood as their price. Use value can easily be understood, so Marx says, but he insists that exchange value is a puzzling phenomenon, and relative exchange values need to be explained. Why does a quantity of one commodity exchange for a given quantity of another commodity? His explanation is in terms of the labour input required to produce the commodity, or rather, the socially necessary labour, which is labour exerted at the average level of intensity and productivity for that branch of activity within the economy. Thus the labour theory of value asserts that the value of a commodity is determined by the quantity of socially necessary labour time required to produce it. Marx provides a two stage argument for the labour theory of value. The first stage is to argue that if two objects can be compared in the sense of being put on either side of an equals sign, then there must be a ‘third thing of identical magnitude in both of them’ to which they are both reducible. As commodities can be exchanged against each other, there must, Marx argues, be a third thing that they have in common. This then motivates the second stage, which is a search for the appropriate ‘third thing’, which is labour in Marx’s view, as the only plausible common element. Both steps of the argument are, of course, highly contestable.

Capitalism is distinctive, Marx argues, in that it involves not merely the exchange of commodities, but the advancement of capital, in the form of money, with the purpose of generating profit through the purchase of commodities and their transformation into other commodities which can command a higher price, and thus yield a profit. Marx claims that no previous theorist has been able adequately to explain how capitalism as a whole can make a profit. Marx’s own solution relies on the idea of exploitation of the worker. In setting up conditions of production the capitalist purchases the worker’s labour power — his ability to labour — for the day. The cost of this commodity is determined in the same way as the cost of every other; i.e. in terms of the amount of socially necessary labour power required to produce it. In this case the value of a day’s labour power is the value of the commodities necessary to keep the worker alive for a day. Suppose that such commodities take four hours to produce. Thus the first four hours of the working day is spent on producing value equivalent to the value of the wages the worker will be paid. This is known as necessary labour. Any work the worker does above this is known as surplus labour, producing surplus value for the capitalist. Surplus value, according to Marx, is the source of all profit. In Marx’s analysis labour power is the only commodity which can produce more value than it is worth, and for this reason it is known as variable capital. Other commodities simply pass their value on to the finished commodities, but do not create any extra value. They are known as constant capital. Profit, then, is the result of the labour performed by the worker beyond that necessary to create the value of his or her wages. This is the surplus value theory of profit.

It appears to follow from this analysis that as industry becomes more mechanised, using more constant capital and less variable capital, the rate of profit ought to fall. For as a proportion less capital will be advanced on labour, and only labour can create value. In Capital Volume 3 Marx does indeed make the prediction that the rate of profit will fall over time, and this is one of the factors which leads to the downfall of capitalism. (However, as pointed out by Marx’s able expositor Paul Sweezy in The Theory of Capitalist Development, the analysis is problematic.) A further consequence of this analysis is a difficulty for the theory that Marx did recognise, and tried, albeit unsuccessfully, to meet also in Capital Volume 3. It follows from the analysis so far that labour intensive industries ought to have a higher rate of profit than those which use less labour. Not only is this empirically false, it is theoretically unacceptable. Accordingly, Marx argued that in real economic life prices vary in a systematic way from values. Providing the mathematics to explain this is known as the transformation problem, and Marx’s own attempt suffers from technical difficulties. Although there are known techniques for solving this problem now (albeit with unwelcome side consequences), we should recall that the labour theory of value was initially motivated as an intuitively plausible theory of price. But when the connection between price and value is rendered as indirect as it is in the final theory, the intuitive motivation of the theory drains away. But even if the defender of the theory is still not ready to concede defeat, a further objection appears devastating. Marx’s assertion that only labour can create surplus value is unsupported by any argument or analysis, and can be argued to be merely an artifact of the nature of his presentation. Any commodity can be picked to play a similar role. Consequently with equal justification one could set out a corn theory of value, arguing that corn has the unique power of creating more value than it costs. Formally this would be identical to the labour theory of value.

Although Marx’s economic analysis is based on the discredited labour theory of value, there are elements of his theory that remain of worth. The Cambridge economist Joan Robinson, in An Essay on Marxian Economics, picked out two aspects of particular note. First, Marx’s refusal to accept that capitalism involves a harmony of interests between worker and capitalist, replacing this with a class based analysis of the worker’s struggle for better wages and conditions of work, versus the capitalist’s drive for ever greater profits. Second, Marx’s denial that there is any long-run tendency to equilibrium in the market, and his descriptions of mechanisms which underlie the trade-cycle of boom and bust. Both provide a salutary corrective to aspects of orthodox economic theory.

4. Theory of History

Marx did not set out his theory of history in great detail. Accordingly, it has to be constructed from a variety of texts, both those where he attempts to apply a theoretical analysis to past and future historical events, and those of a more purely theoretical nature. Of the latter, the 1859 Preface to A Critique of Political Economy has achieved canonical status. However, The German Ideology, co-written with Engels in 1845, is a vital early source in which Marx first sets out the basics of the outlook of historical materialism. We shall briefly outline both texts, and then look at the reconstruction of Marx’s theory of history in the hands of his philosophically most influential recent exponent, G.A. Cohen.

4.1 The German Ideology

In The German Ideology Marx and Engels contrast their new materialist method with the idealism which had characterised previous German thought. Accordingly, they take pains to set out the ‘premises of the materialist method’. They start, they say, from ‘real human beings’, emphasising that human beings are essentially productive, in that they must produce their means of subsistence in order to satisfy their material needs. The satisfaction of needs engenders new needs of both a material and social kind, and forms of society arise corresponding to the state of development of human productive forces. Material life determines, or at least ‘conditions’ social life, and so the primary direction of social explanation is from material production to social forms, and thence to forms of consciousness. As the material means of production develop, ‘modes of co-operation’ or economic structures rise and fall, and eventually communism will become a real possibility once the plight of the workers and their awareness of an alternative motivates them sufficiently to become revolutionaries.

4.2 1859 Preface

In the sketch of The German Ideology, all the key elements of historical materialism are present, even if the terminology is not yet that of Marx’s more mature writings. Marx’s statement in 1859 Preface renders much the same view in sharper form. Cohen’s reconstruction of Marx’s view in the Preface begins from what Cohen calls the Development Thesis, which is pre-supposed, rather than explicitly stated in the Preface. This is the thesis that the productive forces tend to develop, in the sense of becoming more powerful, over time. This states not that they always do develop, but that there is a tendency for them to do so. The productive forces are the means of production, together with productively applicable knowledge: technology, in other words. The next thesis is the primacy thesis, which has two aspects. The first states that the nature of the economic structure is explained by the level of development of the productive forces, and the second that the nature of the superstructure — the political and legal institutions of society— is explained by the nature of the economic structure. The nature of a society’s ideology, which is to say the religious, artistic, moral and philosophical beliefs contained within society, is also explained in terms of its economic structure, although this receives less emphasis in Cohen’s interpretation. Indeed many activities may well combine aspects of both the superstructure and ideology: a religion is constituted by both institutions and a set of beliefs.

Revolution and epoch change is understood as the consequence of an economic structure no longer being able to continue to develop the forces of production. At this point the development of the productive forces is said to be fettered, and, according to the theory once an economic structure fetters development it will be revolutionised — ‘burst asunder’ — and eventually replaced with an economic structure better suited to preside over the continued development of the forces of production.

In outline, then, the theory has a pleasing simplicity and power. It seems plausible that human productive power develops over time, and plausible too that economic structures exist for as long as they develop the productive forces, but will be replaced when they are no longer capable of doing this. Yet severe problems emerge when we attempt to put more flesh on these bones.

4.3 Functional Explanation

Prior to Cohen’s work, historical materialism had not been regarded as a coherent view within English-language political philosophy. The antipathy is well summed up with the closing words of H.B. Acton’s The Illusion of the Epoch: “Marxism is a philosophical farrago”. One difficulty taken particularly seriously by Cohen is an alleged inconsistency between the explanatory primacy of the forces of production, and certain claims made elsewhere by Marx which appear to give the economic structure primacy in explaining the development of the productive forces. For example, in The Communist Manifesto Marx states that: ‘The bourgeoisie cannot exist without constantly revolutionising the instruments of production.’ This appears to give causal and explanatory primacy to the economic structure — capitalism — which brings about the development of the forces of production. Cohen accepts that, on the surface at least, this generates a contradiction. Both the economic structure and the development of the productive forces seem to have explanatory priority over each other.

Unsatisfied by such vague resolutions as ‘determination in the last instance’, or the idea of ‘dialectical’ connections, Cohen self-consciously attempts to apply the standards of clarity and rigour of analytic philosophy to provide a reconstructed version of historical materialism.

The key theoretical innovation is to appeal to the notion of functional explanation (also sometimes called ‘consequence explanation’). The essential move is cheerfully to admit that the economic structure does indeed develop the productive forces, but to add that this, according to the theory, is precisely why we have capitalism (when we do). That is, if capitalism failed to develop the productive forces it would disappear. And, indeed, this fits beautifully with historical materialism. For Marx asserts that when an economic structure fails to develop the productive forces — when it ‘fetters’ the productive forces — it will be revolutionised and the epoch will change. So the idea of ‘fettering’ becomes the counterpart to the theory of functional explanation. Essentially fettering is what happens when the economic structure becomes dysfunctional.

Now it is apparent that this renders historical materialism consistent. Yet there is a question as to whether it is at too high a price. For we must ask whether functional explanation is a coherent methodological device. The problem is that we can ask what it is that makes it the case that an economic structure will only persist for as long as it develops the productive forces. Jon Elster has pressed this criticism against Cohen very hard. If we were to argue that there is an agent guiding history who has the purpose that the productive forces should be developed as much as possible then it would make sense that such an agent would intervene in history to carry out this purpose by selecting the economic structures which do the best job. However, it is clear that Marx makes no such metaphysical assumptions. Elster is very critical — sometimes of Marx, sometimes of Cohen — of the idea of appealing to ‘purposes’ in history without those being the purposes of anyone.

Cohen is well aware of this difficulty, but defends the use of functional explanation by comparing its use in historical materialism with its use in evolutionary biology. In contemporary biology it is commonplace to explain the existence of the stripes of a tiger, or the hollow bones of a bird, by pointing to the function of these features. Here we have apparent purposes which are not the purposes of anyone. The obvious counter, however, is that in evolutionary biology we can provide a causal story to underpin these functional explanations; a story involving chance variation and survival of the fittest. Therefore these functional explanations are sustained by a complex causal feedback loop in which dysfunctional elements tend to be filtered out in competition with better functioning elements. Cohen calls such background accounts ‘elaborations’ and he concedes that functional explanations are in need of elaborations. But he points out that standard causal explanations are equally in need of elaborations. We might, for example, be satisfied with the explanation that the vase broke because it was dropped on the floor, but a great deal of further information is needed to explain why this explanation works. Consequently, Cohen claims that we can be justified in offering a functional explanation even when we are in ignorance of its elaboration. Indeed, even in biology detailed causal elaborations of functional explanations have been available only relatively recently. Prior to Darwin, or arguably Lamark, the only candidate causal elaboration was to appeal to God’s purposes. Darwin outlined a very plausible mechanism, but having no genetic theory was not able to elaborate it into a detailed account. Our knowledge remains incomplete to this day. Nevertheless, it seems perfectly reasonable to say that birds have hollow bones in order to facilitate flight. Cohen’s point is that the weight of evidence that organisms are adapted to their environment would permit even a pre-Darwinian atheist to assert this functional explanation with justification. Hence one can be justified in offering a functional explanation even in absence of a candidate elaboration: if there is sufficient weight of inductive evidence.

At this point the issue, then, divides into a theoretical question and an empirical one. The empirical question is whether or not there is evidence that forms of society exist only for as long as they advance productive power, and are replaced by revolution when they fail. Here, one must admit, the empirical record is patchy at best, and there appear to have been long periods of stagnation, even regression, when dysfunctional economic structures were not revolutionised.

The theoretical issue is whether a plausible elaborating explanation is available to underpin Marxist functional explanations. Here there is something of a dilemma. In the first instance it is tempting to try to mimic the elaboration given in the Darwinian story, and appeal to chance variations and survival of the fittest. In this case ‘fittest’ would mean ‘most able to preside over the development of the productive forces’. Chance variation would be a matter of people trying out new types of economic relations. On this account new economic structures begin through experiment, but thrive and persist through their success in developing the productive forces. However the problem is that such an account would seem to introduce a larger element of contingency than Marx seeks, for it is essential to Marx’s thought that one should be able to predict the eventual arrival of communism. Within Darwinian theory there is no warrant for long-term predictions, for everything depends on the contingencies of particular situations. A similar heavy element of contingency would be inherited by a form of historical materialism developed by analogy with evolutionary biology. The dilemma, then, is that the best model for developing the theory makes predictions based on the theory unsound, yet the whole point of the theory is predictive. Hence one must either look for an alternative means of producing elaborating explanation, or give up the predictive ambitions of the theory.

4.4 Rationality

The driving force of history, in Cohen’s reconstruction of Marx, is the development of the productive forces, the most important of which is technology. But what is it that drives such development? Ultimately, in Cohen’s account, it is human rationality. Human beings have the ingenuity to apply themselves to develop means to address the scarcity they find. This on the face of it seems very reasonable. Yet there are difficulties. As Cohen himself acknowledges, societies do not always do what would be rational for an individual to do. Co-ordination problems may stand in our way, and there may be structural barriers. Furthermore, it is relatively rare for those who introduce new technologies to be motivated by the need to address scarcity. Rather, under capitalism, the profit motive is the key. Of course it might be argued that this is the social form that the material need to address scarcity takes under capitalism. But still one may raise the question whether the need to address scarcity always has the influence that it appears to have taken on in modern times. For example, a ruling class’s absolute determination to hold on to power may have led to economically stagnant societies. Alternatively, it might be thought that a society may put religion or the protection of traditional ways of life ahead of economic needs. This goes to the heart of Marx’s theory that man is an essentially productive being and that the locus of interaction with the world is industry. As Cohen himself later argued in essays such as ‘Reconsidering Historical Materialism’, this may appear one-sided, and ignore other powerful elements in human nature. Such a criticism chimes with a criticism from the previous section; that the historical record may not, in fact, display the tendency to growth in the productive forces assumed by the theory.

5. Morality

The issue of Marx and morality poses a conundrum. On reading Marx’s works at all periods of his life, there appears to be the strongest possible distaste towards bourgeois capitalist society, and an undoubted endorsement of future communist society. Yet the terms of this antipathy and endorsement are far from clear. Despite expectations, Marx never says that capitalism is unjust. Neither does he say that communism would be a just form of society. In fact he takes pains to distance himself from those who engage in a discourse of justice, and makes a conscious attempt to exclude direct moral commentary in his own works. The puzzle is why this should be, given the weight of indirect moral commentary one finds.

There are, initially, separate questions, concerning Marx’s attitude to capitalism and to communism. There are also separate questions concerning his attitude to ideas of justice, and to ideas of morality more broadly concerned. This, then, generates four questions: (1) Did Marx think capitalism unjust?; (2) did he think that capitalism could be morally criticised on other grounds?; (3) did he think that communism would be just? (4) did he think it could be morally approved of on other grounds? These are the questions we shall consider in this section.

The initial argument that Marx must have thought that capitalism is unjust is based on the observation that Marx argued that all capitalist profit is ultimately derived from the exploitation of the worker. Capitalism’s dirty secret is that it is not a realm of harmony and mutual benefit but a system in which one class systematically extracts profit from another. How could this fail to be unjust? Yet it is notable that Marx never concludes this, and in Capital he goes as far as to say that such exchange is ‘by no means an injustice’.

Allen Wood has argued that Marx took this approach because his general theoretical approach excludes any trans-epochal standpoint from which one can comment on the justice of an economic system. Even though one can criticize particular behaviour from within an economic structure as unjust (and theft under capitalism would be an example of this) it is not possible to criticise capitalism as a whole. This is a consequence of Marx’s analysis of the role of ideas of justice from within historical materialism. That is to say, juridical institutions are part of the superstructure, and ideas of justice are ideological, and the role of both the superstructure and ideology, in the functionalist reading of historical materialism adopted here, is to stabilise the economic structure. Consequently, to state that something is just under capitalism is simply a judgement applied to those elements of the system that will tend to have the effect of advancing capitalism. According to Marx, in any society the ruling ideas are those of the ruling class; the core of the theory of ideology.

Ziyad Husami, however, argues that Wood is mistaken, ignoring the fact that for Marx ideas undergo a double determination in that the ideas of the non-ruling class may be very different from those of the ruling class. Of course it is the ideas of the ruling class that receive attention and implementation, but this does not mean that other ideas do not exist. Husami goes as far as to argue that members of the proletariat under capitalism have an account of justice which matches communism. From this privileged standpoint of the proletariat, which is also Marx’s standpoint, capitalism is unjust, and so it follows that Marx thought capitalism unjust.

Plausible though it may sound, Husami’s argument fails to account for two related points. First, it cannot explain why Marx never described capitalism as unjust, and second, it does not account for the distance Marx wanted to place between his own scientific socialism, and that of the utopian socialists who argued for the injustice of capitalism. Hence one cannot avoid the conclusion that the ‘official’ view of Marx is that capitalism is not unjust.

Nevertheless, this leaves us with a puzzle. Much of Marx’s description of capitalism — his use of the words ‘embezzlement’, ‘robbery’ and ‘exploitation’ — belie the official account. Arguably, the only satisfactory way of understanding this issue is, once more, from G.A. Cohen, who proposes that Marx believed that capitalism was unjust, but did not believe that he believed it was unjust. In other words, Marx, like so many of us, did not have perfect knowledge of his own mind. In his explicit reflections on the justice of capitalism he was able to maintain his official view. But in less guarded moments his real view slips out, even if never in explicit language. Such an interpretation is bound to be controversial, but it makes good sense of the texts.

Whatever one concludes on the question of whether Marx thought capitalism unjust, it is, nevertheless, obvious that Marx thought that capitalism was not the best way for human beings to live. Here points made in his early writings remain present throughout his writings, if no longer connected to an explicit theory of alienation. The worker finds work a torment, suffers poverty, overwork and lack of fulfillment and freedom. People do not relate to each other as humans should.

Does this amount to a moral criticism of capitalism or not? In the absence of any special reason to argue otherwise, it simply seems obvious that Marx’s critique is a moral one. Capitalism impedes human flourishing.

Marx, though, once more refrained from making this explicit; he seemed to show no interest in locating his criticism of capitalism in any of the traditions of moral philosophy, or explaining how he was generating a new tradition. There may have been two reasons for his caution. The first was that while there were bad things about capitalism, there is, from a world historical point of view, much good about it too. For without capitalism, communism would not be possible. Capitalism is to be transcended, not abolished, and this may be difficult to convey in the terms of moral philosophy.

Second, and perhaps more importantly, we need to return to the contrast between scientific and utopian socialism. The utopians appealed to universal ideas of truth and justice to defend their proposed schemes, and their theory of transition was based on the idea that appealing to moral sensibilities would be the best, perhaps only, way of bringing about the new chosen society. Marx wanted to distance himself from this tradition of utopian thought, and the key point of distinction was to argue that the route to understanding the possibilities of human emancipation lay in the analysis of historical and social forces, not in morality. Hence, for Marx, any appeal to morality was theoretically a backward step.

This leads us now to Marx’s assessment of communism. Would communism be a just society? In considering Marx’s attitude to communism and justice there are really only two viable possibilities: either he thought that communism would be a just society or he thought that the concept of justice would not apply: that communism would transcend justice.

Communism is described by Marx, in the Critique of the Gotha Programme, as a society in which each person should contribute according to their ability and receive according to their need. This certainly sounds like a theory of justice, and could be adopted as such. However it is possibly truer to Marx’s thought to say that this is part of an account in which communism transcends justice, as Lukes has argued.

If we start with the idea that the point of ideas of justice is to resolve disputes, then a society without disputes would have no need or place for justice. We can see this by reflecting upon Hume’s idea of the circumstances of justice. Hume argued that if there was enormous material abundance — if everyone could have whatever they wanted without invading another’s share — we would never have devised rules of justice. And, of course, Marx often suggested that communism would be a society of such abundance. But Hume also suggested that justice would not be needed in other circumstances; if there were complete fellow-feeling between all human beings. Again there would be no conflict and no need for justice. Of course, one can argue whether either material abundance or human fellow-feeling to this degree would be possible, but the point is that both arguments give a clear sense in which communism transcends justice.

Nevertheless we remain with the question of whether Marx thought that communism could be commended on other moral grounds. There are certainly reasons to believe that Marx did not want to make moral assessments at all, for example, in the Communist Manifesto he writes that “communism abolishes … all religion and all morality, rather than constituting them on a new basis”. However, it may be that Marx here is taking morality in a rather narrow sense. On a broad understanding, in which morality, or perhaps better to say ethics, is concerning with the idea of living well, it seems that communism can be assessed favourably in this light. One compelling argument is that Marx’s career simply makes no sense unless we can attribute such a belief to him. But beyond this we can be brief in that the considerations adduced in section 2 above apply again. Communism clearly advances human flourishing, in Marx’s view. The only reason for denying that, in Marx’s vision, it would amount to a good society is a theoretical antipathy to the word ‘good’. And here the main point is that, in Marx’s view, communism would not be brought about by high-minded benefactors of humanity. Quite possibly his determination to retain this point of difference between himself and the Utopian socialists led him to disparage the importance of morality to a degree that goes beyond the call of theoretical necessity.

Austin Revisted

Posted in Uncategorized by drsivalaw on February 25, 2010

In preparation for the revision. I thought I would share something on Austin with you to help those of you whom are still having some problems.

1. Life

John Austin’s life (1790–1859) was filled with disappointment and unfulfilled expectations. His influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas Carlyle) were impressed by his intellect and his conversation, and predicted he would go far. However, in public dealings, Austin’s nervous disposition, shaky health, tendency towards melancholy, and perfectionism combined to end quickly careers at the Bar, in academia, and in government service (Hamburger 1985, 1992).

Austin was born to a Suffolk merchant family, and served briefly in the military before beginning his legal training. He was called to the Bar in 1818, but he took on few cases, and quit the practice of law in 1825. Austin shortly thereafter obtained an appointment to the first Chair of Jurisprudence at the recently established University of London. He prepared for his lectures by study in Bonn, and evidence of the influence of continental legal and political ideas can be found scattered throughout Austin’s writings. Commentators have found evidence in Austin’s writings of the German Pandectist treatment of Roman Law, in particular, its approach to law as something that is, or should be, systematic and coherent (Schwarz 1934; Stein 1988: pp. 223–229, 238–244; Lobban 1991: pp. 223–256)

Lectures from the course he gave were eventually published in 1832 as “Province of Jurisprudence Determined” (Austin 1832/1995). However, attendance at his courses was small and getting smaller, and he gave his last lecture in 1833. A short-lived effort to give a similar course of lectures at the Inner Temple met the same result. Austin resigned his University of London Chair in 1835. He later briefly served on the Criminal Law Commission, and as a Royal Commissioner to Malta, but he never found either success or contentment. He did some occasional writing on political themes, but his plans for longer works never came to anything during his lifetime, due apparently to some combination of perfectionism, melancholy, and writer’s block. His changing views on moral, political, and legal matters also apparently hindered both the publication of a revised edition of “Province of Jurisprudence Determined,” and the completion of a longer project started when his views had been different.

(There is some evidence that Austin’s views later in his life may have moved away from analytical jurisprudence (see below) towards something more approximating the historical jurisprudence school (Hamburger 1985: pp. 178–91).)

Much of whatever success Austin found during his life, and after, must be attributed to his wife Sarah, for her tireless support, both moral and economic (during the later years of their marriage, they lived primarily off her efforts as a translator and reviewer), and her work to publicize his writings after his death (including the publication of a more complete set of his Lectures on Jurisprudence) (Austin 1879). Credit should also be given to Austin’s influential friends, who not only helped him to secure many of the positions he held during his lifetime, but also gave important support for his writings after his death (Hamburger 1985: pp. 33, 197; Morison 1982: p. 17; Mill 1863).

Austin’s work was influential in the decades after his passing away. E. C. Clark wrote in the late 19th century that Austin’s work “is undoubtedly forming a school of English jurists, possibly of English legislators also. It is the staple of jurisprudence in all our systems of legal education.” (Clark 1883: pp. 4–5) A similar assessment is made by H.L.A. Hart, looking back nearly a century later: “within a few years of his death it was clear that his work had established the study of jurisprudence in England” (Hart 1955: p. xvi). As will be discussed, Austin’s influence can be seen at a number of levels, including the general level of how legal theory, and law generally, were taught (Stein 1988: pp. 238–244), and the use of an analytical approach in legal theory. At such levels, Austin’s impact is felt to this day. Hart could write that “Austin’s influence on the development of England of [Jurisprudence] has been greater than that of any other writer,” (Hart 1955: p. xvi) even while Austin’s particular command theory of law became almost friendless, and is today probably best known from Hart’s use of it (1958, 1994) as a foil for the elaboration of Hart’s own, more nuanced approach to legal theory. In recent decades, some theorists have revisited Austin’s command theory (and other works), offering new characterizations and defenses of his ideas (e.g., Morison 1982, Rumble 1985).

2. Analytical Jurisprudence and Legal Positivism

Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham’s utilitarianism is evident (though with some differences) in the work for which Austin is best known today. On Austin’s reading of utilitarianism, Divine will is equated with Utilitarian principles: “The commands which God has revealed we must gather from the terms wherein they are promulg[ate]d. The command which he has not revealed, we must construe by the principle of utility” (Austin 1873: Lecture IV, p. 160; see also Austin 1832/1995: Lecture II, p. 41). This particular reading of utilitarianism, however, has had little long-term influence, though it seems to have been the part of his work that received the most attention in his own day (Rumble 1995: p. xx). Some have also seen Austin as being one of the early advocates of “rule utilitarianism.”(e.g., Austin 1832/1995: Lecture II, p. 42, where Austin urges that we analyze not the utility of particular acts, but that of “class[es] of action”). Additionally, Austin early on shared many of the ideas of the Benthamite philosophical radicals; he was “a strong proponent of modern political economy, a believer in Hartleian metaphysics, and a most enthusiastic Malthusian” (Rumble 1985: pp. 16–17). Austin was to lose most of his “radical” inclinations as he grew older.

Austin’s importance to legal theory lies elsewhere—his theorizing about law was novel at four different levels of generality. First, he was arguably the first writer to approach the theory of law analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments about law that were secondary to more general moral and political theories). Analytical jurisprudence emphasizes the analysis of key concepts, including “law,” “(legal) right,” “(legal) duty,” and “legal validity.” Though analytical jurisprudence has been challenged by some in recent years (e.g., Leiter 2007a, 2007b), it remains the dominant approach to discussing the nature of law. Analytical jurisprudence, an approach to theorizing about law, has sometimes been confused with what the American legal realists (an influential group of theorists prominent in the early decades of the 20th century) called “legal formalism”—a narrow approach to how judges should decide cases. The American legal realists saw Austin in particular, and analytical jurisprudence in general, as their opponents in their critical and reform-minded efforts (e.g., Sebok 1998: pp. 65-69). In this, the realists were simply mistaken; unfortunately, it is a mistake that can still be found in some contemporary legal commentators.

Second, Austin’s work should be seen against a background where most English judges and commentators saw common-law reasoning (the incremental creation or modification of law through judicial resolution of particular disputes) as supreme, as declaring existing law, as discovering the requirements of “Reason,” as the immemorial wisdom of popular “custom.” Such (Anglo-American) theories about common law reasoning fit with a larger tradition of theorizing about law (which had strong roots in continental European thought—e.g., the historical jurisprudence of theorists like Karl Friedrich von Savigny (1975)): the idea that generally law did or should reflect community mores, “spirit,” or custom. In general, one might look at many of the theorists prior to Austin as exemplifying an approach that was more “community-oriented”—law as arising from societal values or needs, or expressive of societal customs or morality. By contrast, Austin’s is one of the first, and one of the most distinctive, theories that views law as being “imperium oriented”—viewing law as mostly the rules imposed from above from certain authorized (pedigreed) sources. More “top-down” theories of law, like that of Austin, better fit the more centralized governments (and the modern political theories about government) of modern times (Cotterrell 2003: pp. 21–77).

Third, within analytical jurisprudence, Austin was the first systematic exponent of a view of law known as “legal positivism.” Most of the important theoretical work on law prior to Austin had treated jurisprudence as though it were merely a branch of moral theory or political theory: asking how should the state govern? (and when were governments legitimate?), and under what circumstances did citizens have an obligation to obey the law? Austin specifically, and legal positivism generally, offered a quite different approach to law: as an object of “scientific” study (Austin 1879: pp. 1107–1108), dominated neither by prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin’s efforts to treat law systematically gained popularity in the late 19th century among English lawyers who wanted to approach their profession, and their professional training, in a more serious and rigorous manner. (Hart 1955: pp. xvi-xviii; Cotterrell 2003: pp. 74-77; Stein 1988: pp. 231-244)

Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral descriptive (or “conceptual”—though this is not a term Austin used) theory of law. (The main competitor to legal positivism, in Austin’s day as in our own, has been natural law theory.) Legal positivism does not deny that moral and political criticism of legal systems is important, but insists that a descriptive or conceptual approach to law is valuable, both on its own terms and as a necessary prelude to criticism.

(The term “legal positivism” is sometimes used more broadly to include the position that we should construct or modify our concept of law to remove moral criteria of legal validity; or to include a prescription that moral values should not be used in judicial decision-making (Schauer 2010—see the Other Internet Resources). I do not think anything turns on whether the term is used more broadly or more narrowly, as long as it is clear which sense is being used. Additionally, while Schauer claims (2010) that Austin could be seen as supporting some of the views associated with the broader understanding of “legal positivism”, there is need for more evidence and argument before the point should be granted.)

There were theorists prior to Austin who arguably offered views similar to legal positivism or who at least foreshadowed legal positivism in some way. Among these would be Thomas Hobbes, with his amoral view of laws as the product of Leviathan (Hobbes 1996); David Hume, with his argument for separating “is” and “ought” (which worked as a sharp criticism for some forms of natural law theory, which purported to derive moral truths from statements about human nature) (Hume 1739/2000); and Jeremy Bentham, with his attacks on judicial lawmaking and on those, like Sir William Blackstone, who justified such lawmaking with natural-law-like justifications (Bentham 1970, 1996).

Austin’s famous formulation of what could be called the “dogma” of legal positivism is as follows:

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. (Austin 1832/1995: Lecture V, p. 157)

(While Austin saw himself as criticizing natural law theory, a view shared by most of the legal positivists who followed him, the extent to which the two schools disagree, and the location of their disagreement, remains a matter sharply contested (e.g., Finnis 1996, 2000; Bix 2000).)

Fourth, Austin’s version of legal positivism, a “command theory of law” (which will be detailed in the next section), was also, for a time, quite influential. Austin’s theory had similarities with views developed by Jeremy Bentham, whose theory could also be characterized as a “command theory.” Bentham, in a posthumously published work, would define law as:

…as assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question. (Bentham 1970: p. 1)

However, Austin’s command theory was more influential than Bentham’s, because the latter’s jurisprudential writings did not appear in an even-roughly systematic form until well after Austin’s work had already been published, with Bentham’s most systematic discussion only appearing posthumously, late in the 20th century (Bentham 1970, 1996; Cotterrell 2003: p. 50).

3. Austin’s Views

Austin’s basic approach was to ascertain what can be said generally, but still with interest, about all laws. Austin’s analysis can be seen as either a paradigm of, or a caricature of, analytical philosophy, in that his discussions are dryly full of distinctions, but are thin in argument. The modern reader is forced to fill in much of the meta-theoretical, justificatory work, as it cannot be found in the text. Where Austin does articulate his methodology and objective, it is a fairly traditional one: he “endeavored to resolve a law (taken with the largest signification which can be given to that term properly) into the necessary and essential elements of which it is composed” (Austin 1832/1995: Lecture V, p. 117).

As to what is the core nature of law, Austin’s answer is that laws (“properly so called”) are commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by analyzing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar:

  • “Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with.
  • Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”).
  • Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee.
  • The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign.
  • Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e.g., the laws of physics).
    (Austin 1832/1995: Lecture I).

Austin also wanted to include within “the province of jurisprudence” certain “exceptions,” items which did not fit his criteria but which should nonetheless be studied with other “laws properly so called”: repealing laws, declarative laws, and “imperfect laws”—laws prescribing action but without sanctions (a concept Austin ascribes to “Roman [law] jurists”) (Austin 1832/1995: Lecture I, p. 36).

In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion, morality, convention, and custom. However, also excluded from “the province of jurisprudence” were customary law (except to the extent that the sovereign had, directly or indirectly, adopted such customs as law), public international law, and parts of constitutional law. (These exclusions alone would make Austin’s theory problematic for most modern readers.)

Within Austin’s approach, whether something is or is not “law” depends on which people have done what: the question turns on an empirical investigation, and it is a matter mostly of power, not of morality. Of course, Austin is not arguing that law should not be moral, nor is he implying that it rarely is. Austin is not playing the nihilist or the skeptic. He is merely pointing out that there is much that is law that is not moral, and what makes something law does nothing to guarantee its moral value. “The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals” (Austin 1832/1995: Lecture V, p. 158).

In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial lawmaking as “highly beneficial and even absolutely necessary” (Austin, 1832/1995: Lecture V, p. 163). Nor did Austin find any difficulty incorporating judicial lawmaking into his command theory: he characterized that form of lawmaking, along with the occasional legal/judicial recognition of customs by judges, as the “tacit commands” of the sovereign, the sovereign’s affirming the “orders” by its acquiescence (Austin 1832/1995: Lecture 1, pp. 35–36). It should be noted, however, that one of Austin’s later lectures listed the many problems that can come with judicial legislation, and recommended codification of the law instead (Austin 1879: vol. 2, Lecture XXXIX, pp. 669–704).

4. Criticisms

As many readers come to Austin’s theory mostly through its criticism by other writers (prominently, that of H.L.A. Hart), the weaknesses of the theory are almost better known than the theory itself:

First, in many societies, it is hard to identify a “sovereign” in Austin’s sense of the word (a difficulty Austin himself experienced, when he was forced to describe the British “sovereign” awkwardly as the combination of the King, the House of Lords, and all the electors of the House of Commons). Additionally, a focus on a “sovereign” makes it difficult to explain the continuity of legal systems: a new ruler will not come in with the kind of “habit of obedience” that Austin sets as a criterion for a system’s rule-maker.

A few responses are available to those who would defend Austin. First, some commentators have argued that Austin is here misunderstood, in that he always meant “by the sovereign the office or institution which embodies supreme authority; never the individuals who happen to hold that office or embody that institution at any given time” (Cotterrell 2003: p. 63, footnote omitted); there are certainly parts of Austin’s lectures that support this reading (e.g., Austin 1832/1995: Lecture V, pp. 128–29; Lecture VI, p. 218).

Secondly, one could argue (see Harris 1977) that the sovereign is best understood as a constructive metaphor: that law should be viewed as if it reflected the view of a single will (a similar view, that law should be interpreted as if it derived from a single will, can be found in Ronald Dworkin’s work (1986: pp. 176–190)).

Thirdly, one could argue that Austin’s reference to a sovereign whom others are in the habit of obeying but who is not in the habit of obeying anyone else, captures what a “realist” or “cynic” would call a basic fact of political life. There is, the claim goes, entities or factions in society that are not effectively constrained, or could act in an unconstrained way if they so chose. For one type of example, one could point out that if there was a sufficiently large and persistent majority among the United States electorate, nothing could contain them: they could elect Presidents and legislators who would amend the Constitution and, through those same officials, appoint judges who would interpret the (revised or original) Constitution in a way amenable to their interests. A different sort of example (and some would say that there are recent real-life examples of this type) would be a President who ignored the constrains of statutory law, constitutional law, and international treaty commitments, while the public and other officials lacked the will or the means to hold that President to the legal norms that purported to constrain his or her actions.

As regards Austin’s “command” model, it seems to fit some aspects of law poorly (e.g., rules which grant powers to officials and to private citizens—of the latter, the rules for making wills, trusts, and contracts are examples), while excluding other matters (e.g., international law) which we are not inclined to exclude from the category “law.”

More generally, it seems more distorting than enlightening to reduce all legal rules to one type. For example, rules that empower people to make wills and contracts perhaps can be re-characterized as part of a long chain of reasoning for eventually imposing a sanction (Austin spoke in this context of the sanction of “nullity”) on those who fail to comply with the relevant provisions. However, such a re-characterization misses the basic purpose of those sorts of laws—they are arguably about granting power and autonomy, not punishing wrongdoing.

A different criticism of Austin’s command theory is that a theory which portrays law solely in terms of power fails to distinguish rules of terror from forms of governance sufficiently just that they are accepted as legitimate (or at least as reasons for action) by their own citizens.

Finally, one might note that the constitutive rules that determine who the legal officials are and what procedures must be followed in creating new legal rules, “are not commands habitually obeyed, nor can they be expressed as habits of obedience to persons” (Hart 1958: p. 603).

(Austin was aware of some of these lines of attack, and had responses ready; it is another matter whether his responses were adequate.) It should also be noted that Austin’s work shows a silence on questions of methodology, though this may be forgivable, given the early stage of jurisprudence. As discussed in an earlier section, in many ways, Austin was blazing a new path. On matters of methodology, later commentators on Austin’s work have had difficulty determining whether he is best understood as making empirical claims about the law or conceptual claims; elements of each sort of approach can be found in his writings (Lobban 1991: pp. 224–225; Cotterrell 2003: pp. 81–83).

When H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart 1958, 1994), he did it by criticizing and building on Austin’s theory: for example, Hart’s theory did not try to reduce all legal rules to one kind of rule, but emphasized the varying types and functions of legal rules; and Hart’s theory, grounded partly on the distinction between “obligation” and “being obliged,” was built around the fact that some participants within legal systems “accepted” the legal rules as reasons for action, above and beyond the fear of sanctions. Hart’s “hermeneutic” approach, building on the “internal point of view” of participants who accepted the legal system, diverged sharply from Austin’s approach to law.

5. A Revisionist View?

Some modern commentators appreciate in Austin elements that were probably not foremost in his mind (or that of his contemporary readers). For example, one occasionally sees Austin portrayed as the first “realist”: in contrast both to the theorists that came before Austin and to some modern writers on law, Austin is seen as having a keener sense of the connection of law and power, and the importance of keeping that connection at the forefront of analysis (cf. Cotterrell 2003: pp. 49–77). One commentator wrote:

Austin’s theory is not a theory of the Rule of Law: of government subject to law. It is a theory of the ‘rule of men’: of government using law as an instrument of power. Such a view may be considered realistic or merely cynical. But it is, in its broad outlines, essentially coherent. (Cotterrell 2003: p. 70)

When circumstances seem to warrant a more critical, skeptical or cynical approach to law and government, Austin’s equation of law and force will be attractive—however distant such a reading may be from Austin’s own liberal-utilitarian views at the time of his writing, or his more conservative political views later in his life (Hamburger, 1985).

Book by Nicola Lacey, A Life of H.L.A. Hart: the Nightmare and the Noble Dream – Reviewed by Richard Mullender

Posted in Uncategorized by drsivalaw on February 25, 2010

Introduction

In A Life of H.L.A. Hart(1), Nicola Lacey has written a biography that successfully details the many scholarly achievements of her subject.  But she does much more than this.  She also unfolds an account of Hart’s life that turns him from a jurisprudential reference point into a flesh-and-blood human being, able to pursue his various careers with conspicuous success while racked by self-doubt.  She also places Hart in the contexts that influenced him (e.g., Oxford as an undergraduate and as an academic).  Likewise, she examines a range of cultural influences that shaped his thinking: the Jewish faith into which he was born, England (with which he strongly identified), and the United States.  Moreover, she makes the point that Hart’s influence extended beyond the fields of jurisprudence and philosophy.  For his writings were relevant to the operations of the liberal and secular state.  Indeed, he and a number of other academics (e.g., John Rawls) have, as Lacey notes, encouraged debate on the pursuit of justice in the liberal state that continues to unfold.  This is a topic to which we will give detailed consideration below.  But, before doing so, we must examine the contents of Lacey’s book in some detail.

Herbert Hart: Work and Life

Lacey details each step in Hart’s journey to academic prominence.  Growing up in the spa town of Harrogate, at once a member of the Jewish community and someone who delighted in the English countryside, the young Herbert was uncommonly bright (11-13).  Moreover, he ‘showed an outstanding capacity to abstract himself from whatever was going on around him: to absorb himself in books, and to retain whatever he had absorbed’ (17). After an unhappy interlude at Cheltenham College (‘a very, very English – almost military – public school’) Hart excelled at Bradford Grammar School (17-19 (quoting from an interview with Hart)).  As a consequence, he was able, in 1926, to study Greats (Literae Humaniores) at New College, Oxford.  Again, he excelled – securing ‘one of the best firsts’ in his year (30 (quoting one of Hart’s tutors, A.H. Smith)).  Thereafter, Hart pursued a career at the Bar and built up a very successful Chancery practice (46). 

While at the Bar, Hart met and married Jenifer Williams, a woman from ‘an educated, moneyed, upper-middle-class [and Gentile] background’ (who shared Hart’s ‘steadfast atheism’).  When war came in 1939, Hart worked for the security services.   His work was diverse (64 and 81).  He prepared reports and briefing papers and ‘made an important contribution to MI5’s remarkable transformation from amateurishness and lack of direction to professionalism and effective strategic capability’ (100).  On one occasion, he successfully secured an espionage conviction, with the result that the court imposed the death penalty – an outcome that ‘weighed heavily on his mind’ (99).  With the defeat of the Nazis, Hart made an official visit to Germany, at least one purpose of which was ‘to report on the state of civilian morale’ (120).  Thereafter, he applied for and secured a fellowship in Philosophy at New College. 

As Lacey makes clear, one of the people best placed to make an assessment of Hart’s abilities, his friend Isaiah Berlin, did not foresee the significant contribution he would make in the field of legal philosophy.  When invited by Henry Price, Professor of Mind and Logic at New College, to make an assessment of Hart’s abilities, Berlin predicted that he would make ‘an admirable teacher of the staple diet’ (117-118).  However, Berlin doubted that Hart ‘would write anything very memorable’ (118).  Indeed, Berlin went on to predict that Hart would ‘not provide glimpses of something new and exciting’; rather, his output would be ‘solid’ (118).  As Lacey notes, Berlin ‘can rarely have been more mistaken’ (118).

Hart was plainly well equipped for his new role.  Lacey’s account of the influences that shaped his thinking helps us to understand why this was the case.  As an undergraduate, the ‘strongly committed Platonist’ H.W.B. Joseph had exerted a great influence on Hart’s thinking (26).  Lacey tells us that, as a student, Hart ‘came to see things very much from Joseph’s point of view’ (27).  As a result, Hart shared Joseph’s commitment to ‘detail and clarity’ and would, as an academic, press students and colleagues to explain ‘what you mean’ (27).  Moreover, while practising at the Bar, Hart devoured the works of Baudelaire, Darwin, E.M. Forster, Thackeray, Tolstoy, and many others (49).  He also maintained intellectually stimulating friendships with old friends from Oxford, including Douglas Jay, Isaiah Berlin, and Richard Wilberforce (61).

Thus, Hart returned to New College with a good grasp of philosophical essentials and a mind receptive to new ideas.  His receptivity to new ideas found expression in his readiness to embrace the ordinary language philosophy that was blossoming in the Oxford of the mid-1940s (in the work of Gilbert Ryle and J.L. Austin) (128).  Austin’s approach to philosophy particularly impressed Hart.  This was because Austin (like Hart) was committed to the pursuit of clarity (135).  This commitment manifested itself in the ‘dry, commonsensical Englishness’ of Austin’s approach to ordinary language and the nuances and distinctions often embedded in it (142).  Austin sought to uncover ‘subtle, unnoticed differences in linguistic idiom’ (135 (quoting Peter Hacker)).  His aim in fastening on these differences was to ‘sharpen our perception of phenomena’ through ‘a sharpened awareness of words’ (134).

By the beginning of the 1950s, Hart was, Lacey tells us, ‘a well established member of Oxford’s philosophical community’ (147).  In 1952 (and having published a limited number of well received essays), Austin and others encouraged Hart to apply for the Chair in Jurisprudence then available in Oxford (149).  Austin believed that only a ‘real’ philosopher could make a significant intellectual contribution in the post (149).  And, when Hart secured the Chair, Austin wrote him a note in which he observed: ‘[i]t is splendid to see the empire of philosophy annex another province in this way’ (149).  Lacey detects, however, ‘a marked difference of tone’ in the response to Hart’s appointment in the Law faculty (149-150).  Most of its members were ‘merely polite’ (150).  But R.V. Heuston looked forward to Hart providing a ‘town planning scheme’ for the ‘intellectual slum of English jurisprudence’ (150).

Like Heuston, Hart harboured misgivings about English jurisprudence.  He said of it that ‘[i]t had no broad principle, no broad faith, it confronted no large question’ (149).(2)  However, in the history of English jurisprudence Hart found not a slum but, rather, the rudimentary structure constructed by Jeremy Bentham and John Austin.  This structure was English legal positivism: a philosophy that identified law as the command of a sovereign, paid law’s normativity little attention, and denied the existence of a necessary connection between legal norms and morality.  In his most famous book, The Concept of Law, Hart built impressively on the foundations laid by his positivist predecessors.  But before doing so, he pursued a number of other projects that enhanced his reputation.  These projects included his inaugural lecture (on definition in the law) and an essay on the nature of rights (in which Hart set out the highly influential ‘choice theory’) (156 (inaugural lecture) and 169 (choice theory of rights)).  They also included his debate with Lon Fuller (on positivism and natural law), and a treatise (co-authored with Tony Honoré) on causation in the law (197-202 (on the Hart-Fuller debate) and 209-219 (on Causation in the Law)). 

Lacey describes each of these undertakings in illuminating detail.  For example, in her examination of the Hart-Fuller debate, she offers an evocative account of the context in which the debate unfolded, Harvard Law School.  Hart found himself in a ‘self-assured law school community’ (181).  And his opponent in argument, Lon Fuller, proved to be ‘a nice New Englander with some quite original ideas’ (181).  But, to Hart’s dismay, ‘inexcusable analytical imprecision’ was a feature of the environment’ (181).  Nonetheless, Harvard galvanised Hart.  He found that ideas ‘started pullulating at a rather alarming rate’ (190).  The result was an essay ‘setting out the agenda for a new version of legal positivism’ (190).  In common with Bentham and Austin, Hart insisted on the lack of any necessary connection between law and morality (197).  But he denied that ‘this betrayed an indifference to the moral status of laws’ (197).  He also rejected the argument (associated with American Legal Realism) that positivism provides a formalistic account of legal reasoning (197).

On his return from Harvard, Lacey tells us that Hart was ‘about to launch himself into a period of quite extraordinary intellectual creativity’ (210).  It was at this time that Hart and Honoré completed Causation in the Law.  Thereafter, Hart made a powerful contribution to debate on the moral limits of the criminal law (in the context of an exchange with Lord Patrick Devlin).  Devlin argued that criminal law should give expression to the moral sentiments of those who made up the majority in a society (221 and 261).(3)  Hart, by contrast, staked out a position informed by the liberal political philosophy of John Stuart Mill.  Hart sought to limit the circumstances in which the state could impose criminal sanctions.  And, to this end he offered a qualified defence of John Stuart Mill’s harm principle, according to which harm to others provides a powerful (but sometimes defeasible) ground for the use of criminal sanctions (221).  This contribution to the Hart-Devlin debate leads Lacey to conclude that he was ‘a broad-minded liberal’ whose thinking ‘tended to the libertarian rather than to the republican end of the spectrum’ (81 and 195).

But while Hart’s thinking tended in this direction, The Concept of Law, gave heavy emphasis to the concept of a rule.  For Hart, as Lacey notes, identified the ‘standard’ case of a legal system as a ‘union’ of primary and secondary rules (225-226).  On Hart’s account, primary rules directly govern behaviour (e.g., criminal prohibitions) while secondary rules systematise law by providing means for its identification, application, and modification (225).  But Hart did much more in The Concept of Law than offer this ‘skeleton account of the salient features of a municipal legal system’ (Hart, 1994, 3-5).  He also set out his highly influential account of law’s ‘internal point of view’.  This is a subject on which Lacey dwells.  She is right to do so.  For Hart made a contribution that greatly enriched the analyses of the earlier positivists.  Unlike Bentham and Austin, Hart was not prepared to reduce law to a pattern of behaviour involving habitual obedience on the part of the law’s addressees to orders backed by threats (226, 228, and 230-231; Duxbury, 2005, 49).  Instead, he placed emphasis on law’s normativity.  This led him to describe law’s internal point of view.  From this standpoint, law is a source of authoritative reasons for action (rather than orders backed by threats).  Moreover, Hart identified those who adopt the internal point of view as having a ‘critical reflective attitude’ towards the law (Hart, 1994, 57).  By this he means that they are, among other things, ready to ponder the law’s (authoritative) requirements in circumstances where the demands it places upon them are unclear (199 and 228).

On the subject of uncertainty in the law, Hart staked out a position (first articulated in the Hart-Fuller debate) that situated him between the extremes of formalism and rule-scepticism.  As Lacey notes, he was not prepared to accept the ‘formalistic vision of legal reasoning’ according to which judges simply grind out ‘deductive conclusions from closed sets of premises’ (197).  But neither could he accept the rule-sceptics’ claim that legal language fails to place significant constraints on the exercise of judicial discretion.  Nonetheless, Hart conceded some ground to each of these views.    He recognised that legal language exhibits a core of settled meaning (199).  Where this is the case, judges can subsume facts under it and apply the law deductively.  But concepts, on Hart’s account, also exhibit a fringe of vagueness or penumbra of doubt, where meaning is uncertain (199).(4)  In legal contexts, the upshot is a borderline case that judges resolve by specifying where the outer limits of the relevant concept lie.  Hart recognised that the discretion they thus exercise lends plausibility to the arguments of the rule-sceptics.  But he offered a powerful response to their criticisms of the law’s operations.  Here, Lacey discusses his account of the ‘open texture’ of legal language (191).  Since legal concepts (in common with other concepts) exhibit a fringe of uncertainty, judges are able to elaborate them in the light of new circumstances.  But such a process of elaboration is not the arbitrary exercise described by the rule-sceptics.  For judges may find in the core of settled meaning clues as to how they should reconfigure the relevant concept (199).  As well as offering a crisp account of this feature of Hart’s legal philosophy, Lacey also examines the influences that shaped his thinking on legal language (and language more generally).  She identifies Friedrich Waismann as the inspiration for Hart’s account of the open texture of legal language and the later philosophy of Wittgenstein as informing his thinking on the judicial elaboration of concepts (140 and 215, et seq).

While Lacey dwells on features of The Concept of Law that were prominent in Hart’s earlier work (his positivism and his interest in language), she says less about a further feature of the book. This is his account of the ‘minimum content of natural law’.  Drawing on Hobbes and Hume, Hart identifies human beings as exhibiting a limited range of characteristics that are apparent in all contexts.  These characteristics are ‘vulnerability’, approximate equality’, ‘limited altruism’, and ‘limited understanding and strength of will’ (Hart, 1994, 194-200).  To this, Hart adds that people, in all contexts, have to address the problems created by ‘limited resources’ (Hart, 1994, 196-197).  In light of these points, Hart argues that law is a practical necessity for all those who have ‘the modest aim of survival’ (Hart, 1994, 191).  For, without law, and the co-operation and order it brings, humans are in danger of becoming a ‘suicide club’ (Hart, 1994, 188-189).  Moreover, he describes the legal norms that work to counter this threat as ‘the minimum content of natural law’ (Hart, 1994, 193).  In setting out this argument, Hart was not asserting a necessary connection between law and morality.  Rather, he was following Hobbes and Hume in offering a form of ‘advisory’ natural law: if human beings wish to endure, they must act in accordance with the minimum content of natural law (Hampsher-Monk. 1992, 31 (on ‘advisory’ natural law)).  The fact that Hart’s account of the minimum content of natural law is derivative may explain why Lacey felt no need to say more on this topic.  Whatever the reason for her decision, it is regrettable.  For the minimum content of natural law is (as we will see later) a feature of Hart’s thinking that has enduring significance.

Lacey’s account of Hart’s many academic contributions lends strong support to the view that he ‘establish[ed] the basic categories and assumptions in terms of which jurisprudential debate is now generally constructed’ (Simmonds, 2007, 4).  But she does not simply offer her readers a chronicle of Hart’s achievements.  She also offers an account of his life that is at once vivid and sensitive.  By drawing on his diaries and correspondence, she makes his inner life a reality to the reader.  It emerges that Hart was seldom comfortable in his own skin.  Lacey observes that Hart ‘was not a man who ever found life straightforward’ (172).  Moreover, she describes a number of episodes in his life that make apparent the (sometimes near disabling) extent of his unease.  For example, Hart, having performed brilliantly as an undergraduate, sought to secure a Prize Fellowship at All Souls (41).  At a formal dinner to which candidates were invited, he ‘dropped a piece of cutlery, shattering a beautiful dinner plate’ (42).  Lacey tells us that, as he surveyed the fragments, ‘he was shocked to hear someone laughing hysterically’ (42).  And, as he registered the laugh, he grasped that it was ‘coming from his own mouth’ (42). 

Quite why Hart – given his prodigious academic ability – would find not just dining at All Souls but life more generally to be anything but straightforward is a question that Lacey ponders at length.  She variously identifies low-self-esteem, anxiety, and a determination to turn in academic performances of the highest standard as explanations for Hart’s unease (132 (lack of self-esteem); 74 and 126 (anxiety); 126 (commitment to high academic standards)).  Lacey also makes it clear that this unease never left him.  For example, as he prepared to make his contribution to the Hart-Fuller debate – a lecture that would win him plaudits – he ‘became increasingly anxious about whether he could deliver something of adequate quality’ (196).  Moreover, unease that troubled Hart had a profound impact on his most intimate relationships.  While he married in the 1930s, he wrestled with homosexual impulses – on which he does not appear to have acted – throughout his adult life (61-62; 110-111).

Plainly, Lacey succeeds in bringing out the complexities of Hart’s make up.  While doing so, she examines a range of influences (the Jewish faith, life in England, and time spent in the USA) that explain some of his personal complexity and the nuances of his thought.  We will examine these influences in the section below.  But, before doing so, we should note a feature of Hart’s outlook on which Lacey places emphasis.  This is his marked distaste for (even elective) group-identification (34).  Lacey tells us that Hart ‘resented being labelled as a member of a particular ethnic group’ (110).  She adds that this was because Hart saw such classifications as ‘irrelevant for most purposes and in any case his own business’ (110).  Hart’s adoption of this position is unsurprising, for he was, as Lacey notes, an ‘intensely private’ man (xvii).  And he was committed to individualism and those strands of liberal philosophy that underwrite it most strongly.

Influences on Hart

(i) The Jewish Faith

Hart’s parents, Simeon and Rose, were ‘a relatively observant Jewish couple’ who ran a successful business in Harrogate (11).  They raised Herbert in the Jewish faith, ensuring that he learned Hebrew and had a bar mitzvah (15).  But, while Hart acquired a ‘continuing … interest in [his] heritage’, he was anxious ‘to assimilate to the dominant culture’ (13 and 35).  In this he was successful.  While writing a reference for him, one of his tutors at Oxford, H.W.B. Joseph, stated that ‘I did not discover for some time the fact of his being a Jew’ (35).  And, many years later, Ronald Dworkin, expressed astonishment on learning of Hart’s Jewish background (73).

Lacey detects ‘a measure of denial’ in Hart’s efforts to assimilate to the dominant culture (35).  But this, as she recognises, does not adequately explain Hart’s attitude towards the faith into which he was born.  Hart wished ‘to be judged as an individual rather than as a member of a group’ (35).  In this, he was giving expression to a liberal political philosophy that, even as an undergraduate, was a prominent feature of his thinking (36).  This liberal outlook must, however, be set alongside Hart’s continuing interest in Jewish religion and culture.  Hart made this interest apparent when, for example, he gave his friend Richard Wilberforce a detailed account of the Talmud and the Jewish system of courts (15).  Likewise, he made plain his continuing interest in the Jewish faith when, later in life, he relearned Hebrew (247).

Lacey’s account of Hart’s relationship with his Jewish heritage leads her to conclude that he had an ambivalent attitude towards it (268-271).  In light of the evidence she offers, this seems correct.  But we might press the analysis further by drawing some comparisons between Hart’s thinking and that of his friend, Isaiah Berlin, on the Jewish faith.  Both men maintained an interest in this subject throughout their lives.  But Hart’s commitment to individualism made him ambivalent about his Jewish roots.  By contrast, Berlin did not see the Jewish faith as posing a significant threat to the individualism he sought to defend in his writings.  Indeed, he felt able to reconcile his faith (and advocacy of the Zionist cause) with a vigorous defence of negative freedom (the absence of coercive interference) (Crowder, 2004, 2-3 and 35).  This perhaps explains why he offered a distinctly uncharitable interpretation of Hart’s attitude towards Jewish religion and culture.  As Lacey notes, Berlin found in Hart’s unwillingness to identify with his Jewish roots evidence that he was (in some sense) ‘broken’.  But the man Berlin saw as broken may simply have been reluctant wholeheartedly to embrace a faith that he regarded as a threat to his individualistic self-understanding and the liberal principles that underwrote it.  Thus, we might see Hart not as broken but rather as one with a strongly individualistic dislike for all that has ‘a palpable design upon us’.(5)

While Hart’s views may have been significantly different from those of Berlin on the background they shared, he, like Berlin, identified strongly with England. 

(ii) England(6)

Lacey describes Hart’s identification with England as ‘deep’ (121).  Certainly, it is apparent in his adoption of a practical outlook that is in the empirical philosophical tradition.  Empiricism is the school of philosophical thought (strongly associated with England and the British Isles more generally) according to which experience is the wellspring of understanding (Scruton, 2000, 204).  Lacey emphasises that this approach to philosophy is apparent not just in Hart’s best known work but also in his undergraduate essays.  She tells us that, in these essays, Hart’s ‘deep fascination with the empiricist tradition’ and familiarity with the works of Hobbes, Locke, and Hume was plain to see (28).  Little wonder, then, that when working for MI5, Hart advised those seeking to gather evidence concerning enemy agents to ask themselves a question that he would later put to tutees: ‘How do you know?’ (96).

Empiricists in the British tradition have long seen themselves as adopting a plain-fact view of the world around them.  Rather than making appeal to the deliverances of ‘reason’ (grasped a priori), they take account of, and learn from, experience (Honderich, 1995, 226).  This commonsensical outlook was much in vogue in Oxford in the years after World War Two.  In Oxford at this time, there was, according to Lacey, ‘a strong sense of the opportunity to make a fresh start’ in the field of philosophy ‘on the English side of the Channel’ (141).  She adds that this involved ‘casting off the historical, political, and metaphysical baggage of Continental traditions … and constructing an indigenous, English, no-nonsense, post-war philosophy’ (141).

Lacey associates this ‘no-nonsense’ school of thought with an ‘upper-class Englishness’ that found expression in J.L. Austin’s ‘dry’ approach to ordinary language philosophy (142).  She also describes this approach as having ‘swept’ Hart along ‘on its tide’ (138).  Moreover, she suggests that linguistic philosophy on the Austinian model may have ‘plugged a gap’ in Hart’s ‘sense of identity, born of his searing Cheltenham experiences as a Jewish boy from a trade background’ (142).  Certainly, Hart had, at earlier points in his life, exhibited a willingness to identify himself with a distinctly Establishment form of Englishness.  Thus he had, while at the Bar, subjected himself to elocution lessons so as to ‘rid himself of any vestiges of a Yorkshire accent’ (45).  At the same time, he also took up fox- and stag-hunting (49-51).  

But Hart’s readiness to identify himself with Establishment England must be set against his political views.  As we have noted, Hart’s political views, as a young man, were liberal.  But while submitting himself to elocution lessons and hunting, Hart’s ‘political outlook’ was, Lacey tells us, ‘moving leftwards’ (48).  Under the influence of, inter alios, Douglas Jay (a friend from undergraduate days who published The Socialist Case in 1937), Hart began to think harder about politics (56).(7)  In particular, he began to dwell on the question as to how personal freedom might be reconciled with social justice (56).  This is a question that continued to interest him.  Thus, when Tony Crosland published The Future of Socialism (an argument for social democracy), Hart (who was visiting Harvard at the time) asked his wife to send him a copy (193).  Decades later, he was still examining this issue.  In for example, an essay on ‘the philosophy of government’ (‘Between Utility and Rights’) he wrestled with the question as to how the state might defensibly accommodate each of these values (Hart, 1983, 198).  But Lacey draws attention to an entry in Hart’s diary (made while he was visiting Harvard) that suggests that his readiness to move leftwards politically had very real limits.  With painful honesty, Hart observes that ‘I have touches of self-disgust occasionally when I contemplate the absence of public concern that distinguishes me so much from so many including Jen[ifer Hart]’ (207). 

Thus, when Lacey says that Hart’s later academic writings were ‘closely identified’ with a ‘left-leaning, social democratic liberalism’, she and others who categorise him in this way may have read him wrongly (56).(8)  Certainly, questions of social justice exercised Hart.  While at Harvard, ‘the refreshing lack of class snobbery in America’ impressed him (193).   And the practical impact of this lack of snobbery was not lost on him.  In his diary he noted that ‘[g]reat lawyers here have accents equivalent to Cockney: they just could not be great barristers at home’ (193).  But, while egalitarian, Hart was first and foremost a liberal.  Thus it becomes easy to understand why he was, as Lacey recognises, ‘uncomfortable with the more … state-centred forms of socialism’ (57).  This suggests that he was not a strongly committed proponent of ‘New Jerusalem’: the statist ideal pursued by the Labour government after its election victory in 1945 (Hennessey, 2006, ch 4 (on New Jerusalem)).(9)  Moreover, when he criticised the government responsible for dismantling the post-War welfarist settlement (Margaret Thatcher’s Conservative administration), his focus was on, inter alia, unjustified state intrusion in matters of sexual morality’ (356).

In light of these points, we find in Hart a commitment to liberty that has deep roots in English culture.  Hart, as we noted earlier, drew on the political philosophy of John Stuart Mill when staking out positions that underscored the importance of liberty.  But the themes in Mill that so appealed to Hart (the importance of the individual and the value of his or her liberty) were apparent in, for example, the seventeenth century in Daniel Defoe’s poem, ‘The True-Born Englishman’.  For we find in Defoe ‘a feeling that … the English system of ordered liberty permitted individual liberty to flower’ (Mandler, 2006, 17).  This ‘feeling’ is certainly apparent in a piece by Hart (prepared while at Harvard) that appeared in The Listener.  Writing on ‘the liberty of the Englishman’, Hart stated that ‘there is a circle around each man, inside which he can do as he please, and it is no concern of others’ (195; Hart, 1958, 98).  Moreover, Hart contrasted this English understanding of liberty with an American variant.  The latter (clearly the fruit of a culture in which the ideal of civic republicanism figures prominently) had to do with participation in democratic decision-making processes (195).  On this topic, as on many others, Hart found in the US academy, and American culture more generally, rich sources of stimulation.

(iii) The United States

As we have already noted, Hart’s debate with Fuller proved very fruitful.  As a result of his exchanges with the genial New Englander he was able to offer a greatly refined defence of positivism.  But Fuller was not the only thinker Hart encountered who led him to refine his thinking.  Lacey tells us that, ‘apart from Fuller, the person with whom [Hart] made the most significant intellectual contact’ was the criminal and constitutional lawyer, Herbert Wechsler (187).  Wechsler’s ‘rigorously utilitarian and policy-oriented approach’ to criminal law made a particular impression on Hart (188).(10)  ‘[R]egular exchanges’ with Wechsler led Hart to conclude that he and Tony Honoré would have to ensure that their joint work on causation took the ‘policy approach’ sufficiently seriously (188).(11) 

Thus, when Causation in the Law appeared in 1959, it offered a critical response to Wechsler and other proponents of the policy-based approach to causation (212).  Hart and Honoré argued that policy-based adjudication on causal questions issued in a form of thought they called ‘causal minimalism’ (212).  By this they meant the readiness to address only two considerations when dealing with questions of causation.  The first of these considerations was factual: what were the necessary conditions of the relevant outcome?  And the second had to do with the attribution of responsibility: what considerations of policy (e.g., the promotion of efficiency) led judges to hold someone liable for a harmful outcome? (212)  Hart and Honoré argued that those who embraced causal minimalism failed to recognise that there is a ‘sui generis concept of causation deployed in law beyond the “factual” idea of causation as a sine qua non’ (212).  Moreover, they deployed ordinary language philosophy to identify the principles and sub-principles that give content to the notion of causation in legal contexts. 

Causation in the Law illustrates Hart’s measured, open-minded response to a new source of influence.  On encountering broad-ranging policy-based analysis (and Wechsler’s rigorous utilitarianism), he felt no need to make a Damascene conversion.  Neither did he, on detecting weaknesses in Wechsler’s approach, lapse into the condescension to which many of his countrymen were (and remain) prone when confronted by Americans who philosophise in broad terms.(12)  Rather, he and Honoré offered, in response to causal minimalism, a tour de force that owed much of its analytical and critical power to the ordinary language school.  But Hart’s response to Wechsler was not in all respects critical.  He followed Wechsler’s utilitarian lead when he argued, in Punishment and Responsibility, that the general justifying aim of the criminal law is deterrence (280). However, Hart’s utilitarianism was qualified.  He identified pursuit of the criminal law’s general justifying aim as being constrained by principles of justice.  The mens rea principle specifies that full responsibility for one’s conduct is a condition of criminal liability (280).  And the proportionality principle specifies that punishment should reflect (or be commensurate with) the gravity of the relevant offence (280).(13)   

In invoking these principles, Hart qualified his utilitarianism by reference to considerations that have a distinctly deontological look.  Those who act on such considerations assume that certain acts should (or should not) be done regardless of all or, at least, the more serious consequences of their performance or non-performance (Honderich, 1995, 187).  Moreover, in identifying both deontological and utilitarian considerations as relevant to the criminal law’s operations, Hart’s thinking bears broad similarities to that of John Rawls.  For Rawls, like Hart, argued that just institutions should accommodate both types of consideration.  And Rawls was (as Lacey notes) another American academic who greatly impressed Hart during his time at Harvard.  Having visited Rawls at Cornell and enjoyed some ‘real talk’ with him, Hart described him in a letter to Jenifer as ‘a superior character both in character and intellect’ (193).(14)

In the 1950s, Rawls was (like Hart) seeking to identify ways in which utilitarian considerations and the fundamental interests (and rights) of individuals could be defensibly accommodated in a politico-legal framework (169).  In other words, Rawls’s concerns centred on what Hart would, many years later, call ‘the philosophy of government’ (Hart, 1983, 198).  Moreover, Lacey notes that, for both men, the philosophy of government turned into ‘a lifelong preoccupation’ (169).  In Rawls’s case, this preoccupation led him, in 1971, to publish A Theory of Justice.  In this book he offered a ‘provisional’ statement of his first principle of justice.  This principle specifies that ‘each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others’ (Rawls, 1971, 60).(15)  But Rawls’s commitment to the rights of the individual was qualified.  For he set out a further principle of justice.  This was the ‘difference principle’ and it specified that ‘social and economic inequalities’ are acceptable where they are ‘reasonably expected to be to everyone’s advantage’ (Rawls, 1971, 60).

Rawls’s argument made a great impression on Hart.  Writing in the University of Chicago Law Review, Hart stated that ‘[no] book of political philosophy since I read the great classics of the subject has stirred my thoughts as deeply as John Rawls’s A Theory of Justice’ (Hart, 1973, 534).  Nonetheless, we can find support in Hart’s writings for the conclusion that his views were significantly different from those of Rawls.  This is far from surprising.  For Hart, as earlier noted, drew a distinction between understandings of liberty in England (‘a circle round each man, inside which he can do as he please[s]’) and the USA (participation in the democratic decision-making process).

This distinction goes someway towards explaining why Hart’s liberalism led him in a direction that Lacey describes as ‘libertarian’ (195).  It certainly helps us to understand why we find him regularly placing emphasis on J.S. Mill’s harm principle as a ground for justifying (and limiting the scope of) state coercion (Hart 1963, 46-47).(16)  The importance Hart attaches to Mill is apparent in the University of Chicago Law Review essay mentioned earlier.  Hart explores the possibility that ‘important forms of liberty’ (including ‘sexual freedom and the liberty to use alcohol or drugs’) do not fall within any of the basic liberties described by Rawls (Hart, 1973, 541).  Moreover, he states that ‘[s]ince John Stuart Mill’s essay On Liberty, such liberties have been the storm centre of discussions of the proper scope of the criminal law and other forms of social coercion’ (Hart, 1973, 541).  In this analysis, the state figures as a threat to the individual since it may deny him or her opportunities to enjoy liberty.  This view of the state contrasts sharply with that in Rawls’s A Theory of Justice.  For Rawls gives extensive consideration to the ways in which the state might legitimately employ its powers to enhance the lives of individuals.(17)  It is, for example, in this connection that he identifies the difference principle as yielding a ground on which to justify ‘social and economic inequalities’ (Rawls, 1971, 61).

Plainly, both Hart and Rawls are liberals.  For they each attach importance to the individual and his or her interests and associated rights.  But, as we have seen, there are differences between their respective positions.  These differences throw light on the extent to which Rawls influenced Hart and, hence, they merit close examination.  Pinning down these differences with some degree of precision is a task to which the political philosophy of Michael Oakeshott is relevant.  This is because Oakeshott draws a distinction between two models of human association that will enable us to gain greater analytic purchase on the respective positions of Hart and Rawls.  The first of these models is ‘civil association’.  It takes the form of a limited body of legal norms that provide an ordered context within which individuals are able to pursue the plans of their choice (Oakeshott, 1975, 124; Oakeshott, 1983, 158).  This is a context within which the state seeks merely to maintain a framework the contours of which may alter as those who inhabit it engage in an exploration of its intimations (Oakeshott, 1975, 116-117 and 128-130, 173, and 178-180; Oakeshott, 1983, 161). 

Matters are very different in the second model of human association described by Oakeshott.  This is ‘enterprise association’.  As with civil association, a body of legal norms work to create an ordered environment.  But, in this context, the state specifies norms that will facilitate pursuit of a particular state of affairs or end-state (which gives expression to a shared or common purpose) (Oakeshott, 1975, 279-311).  This mode of association is one in which the notion of a plan or a programme figures prominently (Loughlin, 1992, 72).  This may explain why Oakeshott emphasised that, within the context of an enterprise association, commitment to individuality (as an end in itself) is apt to attenuate (Oakeshott, 1975, 274-278).  By contrast, he identified civil association as affording a setting in which individuality could find more adequate expression.  On this point Oakeshott, on occasion, grew lyrical.  He  described civil association as ‘an association, not of pilgrims travelling to a common destination, but of adventurers each responding as best he can to the ordeal of consciousness in a world composed of others of his kind’ (Oakeshott, 1975, 242-252).

Applying Oakeshott’s distinction between civil and enterprise association to Hart and Rawls, we find that the latter stakes out a position (in A Theory of Justice) that has obvious affinities with enterprise association.  In Section 1 of A Theory of Justice, Rawls tells his readers that ‘society is a cooperative venture for mutual advantage’ (Rawls, 1971, 4)  And it is this emphasis on mutual advantage that leads him to identify, inter alia, the difference principle as essential to the pursuit of justice.  When we turn to Hart, matters are significantly different.  His emphasis on, inter alia, the minimum content of natural law and the harm principle do not assume a state with large ambitions on the model described by Rawls.  Rather, these features of Hart’s thinking suggest a cast of mind more comfortable with civil rather than enterprise association.  This is a view to which Hart’s University of Chicago Law Review essay lends some support.  For Hart detects in Rawls’s A Theory of Justice ‘a latent ideal’ that ‘powerfully impregnates the book’ (Hart, 1973, 554-555).  Hart states that ‘[t]he ideal is that of a public-spirited citizen who prizes political activity and service to others as among the chief goods of life’ (Hart, 1973, 554).  The public-spirited citizen described by Hart focuses on a just end-state and strives (in concert with others) to bring it into existence.  This citizen, to put the same point another way, is the denizen of an enterprise association.  No such ideal is to be found in Hart’s writings.  But his ability to tease an ideal ‘public spirited citizen’ out of Rawls’s writings should not surprise us.  For, in describing this ideal, Hart was capturing (in personified form) the point of view internal to Rawls’s project.

This suggests that Hart and Rawls (while both being liberals and advocating systems of law founded on a plurality of values) did not have quite as much in common as Lacey suggests.  But, for reasons given in the next section, Lacey was right to emphasise their shared interests.

Hart and Anglo-American Legal and Political Philosophy

Assuming that the analysis in the last section is correct, we are now in a position to place Hart’s academic contribution in a context that seems particularly fitting.  This is the field of Anglo-American legal and political philosophy within which Hart and Rawls (as Lacey indicates) pursued a shared interest in the egalitarian philosophy of government.  Moreover, we can (for the reasons given in the last section) identify Hart as staking out a position in this field that is distinct from Rawls insofar as it tends towards civil association.  This analysis of Hart finds some support in an account of his work recently offered by Richard Epstein.  Epstein argues that Hart’s description of the ‘minimum content of natural law’ commits him to a modest practical agenda in which private ordering (through the mechanisms of, inter alia, contract and property law) features prominently (Epstein, 2005, 231-232).  Moreover, Epstein states that ‘political beliefs’ are ‘hardly apparent in [Hart’s] work’ (Epstein, 2005, 221).

We can refine Epstein’s analysis by drawing on Oakeshott.  Hart clearly had political beliefs.  He thought, for example, that the criminal justice system should operate in ways that adequately accommodate the interests of potential victims and those charged with offences (Hart, 1968, ch 1).  This being so, his thinking was informed by the ideal of distributive justice (which typically bulks large in political debate).  Moreover, in pursuit of this ideal, he placed heavy emphasis on the harm principle as a means by which to limit legal restrictions on liberty.  This principle sharply circumscribes the coercive power of the state while providing a basis on which to establish an ordered environment.  Hence, it does the sort of work associated with law in the context of a civil association.(18)

We should, however, recognise that Hart did, on occasion, adopt positions that indicated that he was, to use a phrase from Epstein, ‘something of a social democrat’ (Epstein, 2005, 221).  Hart did this, for example, while criticising Robert Nozick’s ‘extreme libertarian’ political philosophy (Hart, 1983, 203).  Hart identified Nozick as inattentive to the ‘the ancient insight that for a meaningful life not only the protection of freedom from deliberate restriction but opportunities and resources for its exercise are needed’ (Hart, 1983, 207).  He added that, in the absence of ‘positive marshalling of social and economic resources’, few will be able to live autonomously (Hart, 1983, 208).  These statements (and others like them) indicate some enthusiasm for the pursuit of social justice by means of redistribution.  But they do not add up to a richly elaborated programme on the model of Rawls’s A Theory of Justice (which, as argued earlier, bespeaks a commitment to enterprise association).  Rather, they indicate familiarity with and suggest an approving attitude towards social democratic arguments such as those set out by Tony Crosland in the 1950s.

While Hart’s emphasis on the harm principle suggests a commitment to civil association, there are reasons for doubting whether this is true of his account of the minimum content of natural law.  For the minimum content of natural law makes its appearance in a book (The Concept of Law) that is, according to Nigel Simmonds, an exercise in philosophical ‘minimalism’: a ‘clarificatory enterprise’ rather than a programmatic one (Simmonds, 1993, 155-157).  By this Simmonds means that Hart’s ‘object is to identify a “central element” or “complex activity” in terms of which the various uses of the word “law” can best be understood’ (Simmonds, 1993, 153).  On this view, Hart’s aim in describing the minimum content of natural law was to indicate how legal institutions serve the end of survival.

In light of these points, we find in Hart’s legal theory three distinct strands of thought.  In his critical response to Nozick’s ‘extreme libertarian’ political philosophy, we see evidence of enthusiasm for human association on the model of an enterprise association.  Moreover, since his response to Nozick is an argument for redistribution in pursuit of social justice, it supports the claim that he was something of a social democrat.  But this strand in Hart’s thinking is less prominent than the other two.  He wrote at greater length and more systematically on the moral limits of the criminal law.  And, in arguing for application of the harm principle, he staked out a position that (for the reasons given earlier) has affinities with civil association.  However, while this feature of Hart’s thought won him many plaudits and exerted influence in practical debates, it is less prominent than his commitment to the clarificatory or minimalist enterprise described by Simmonds.

Nonetheless, the second strand in Hart’s thinking (which has to do very obviously with the ‘philosophy of government’) does support Lacey’s claim that his interests and those of Rawls intersected.  But, when we probe their common concerns, we find some significant differences.  Consider Hart’s contribution in the area of criminal law.  We find him arguing that deterrence should be the general justifying aim of the criminal law.  Here, a consequentialist concern with the outcomes produced by a particular set of institutions bulks large.  But Hart’s commitment to consequentialism is not unswerving.  We find him identifying both the mens rea and proportionality principles as placing limits on the distribution of punishment.  In his invocation of these principles (as in his invocation of the harm principle), deontological assumptions inform Hart’s thinking. He assumes that the interests of the individual defendant are intrinsically valuable and should (regardless of consequences) receive strong protection.  These features of Hart’s argument concerning the criminal justice system suggest that he is a qualified consequentialist (Mullender, 2000, 500-503 (on qualified consequentialism)).  He attaches priority to the pursuit of a generally beneficial outcome: general deterrence.(19)  But deontological considerations place constraints on the pursuit of this outcome.  Hence, the state should respond to wrongdoing justly by acting in accordance with the principles described by Hart.

When we turn to Rawls, we find an approach to practical matters that suggests a commitment not to qualified consequentialism but to a different moral philosophy built out of the same materials.  This becomes apparent when we examine the two principles of justice that occupy a central place in his account of ‘justice as fairness’.  The first principle, as noted earlier, specifies that ‘each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others’ (Rawls, 1971, 60).  Rawls also states that ‘a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages’ (Rawls, 1971, 61).  Moreover, he describes his account of ‘justice as fairness’ as ‘a deontological theory’ (Rawls, 1971, 30; see also Freeman, 2007, 306).  While he does little to develop this point, he clearly assumes that securing the fundamental interests of individuals is the intrinsically right thing to do (Rawls, 1971, 60).  However, he adds that ‘[a]ll ethical doctrines worth our attention take consequences into account when judging rightness’ (Rawls, 1971, 60).  His commitment to this view finds expression in his second principle of justice which, as we noted earlier, specifies that ‘social and economic inequalities’ are acceptable where they are ‘reasonably expected to be to everyone’s advantage’.  In light of these points, we find in Rawls’s thought a commitment to qualified deontology.(20)  He attaches priority to deontological considerations.  However, he is ready to act on consequentialist reasons for action where they pose no threat to his first principle and serve to advance his egalitarian agenda.

While Hart’s thinking differs from that of Rawls in the ways we have noted, they share a commitment that explains the obvious affinity between them.  Each of them sought to stake out egalitarian positions.  To this end, they each aimed to accommodate consequentialist and deontological reasons for action in ways that would give expression to this commitment.  In light of this point, Lacey is right to emphasise the points of intersection between Hart’s thought and that of Rawls.  For they each made influential contributions in a field we can term (appropriating a phrase from Hart) the egalitarian philosophy of government.  This field merits close scrutiny.  An examination of it supports (for reasons given below) the suggestion that Hart should be set in an Anglo-American context. 

The century in which both Hart and Rawls lived and died saw three broad approaches to the philosophy of government loom to prominence: fascism (and national socialism), communism, and liberal democracy.  On the analysis offered by Philip Bobbitt, two of these approaches (fascism (and national socialism) and communism) were found wanting in an ‘epochal war’ that lasted from 1914 to 1990) (Bobbitt, 2002, 19-64).  Bobbitt argues that this war (‘the Long War’) was ‘fought over a fundamental constitutional question’: which sort of nation-state – communist, fascist, or parliamentary should prevail (Bobbitt, 2002, 19).  This was a war in which Trotsky made plain the status of the individual in the Soviet Union when he spoke sneeringly of ‘the papist-Quaker babble about the sanctity of the human life’ (Ferguson, 2006, 148).  Likewise, it was a war in which Hitler’s National Socialists, while offering little in the way of developed or even coherent philosophy, made a concerted assault on egalitarian assumptions (Gray, 2007, 28 and 55-69).(21) Moreover, it is only in retrospect that the success of liberal democracy takes on the appearance of inevitability.  In the 1930s, as Isaiah Berlin has noted, ‘[t]he most insistent propaganda … declared that humanitarianism and liberalism and democratic forces were played out, and that the choice… lay between two bleak extremes, Communism and Fascism’ (Berlin, 1998, 629).

But even in ‘the iron ‘30s’, Franklin Roosevelt gave a fillip to the egalitarian philosophy of government by ‘seeking to establish new rules of social justice’ (Berlin, 1998, 628).  However, while committed to the pursuit of social justice, he did not wish to ‘forc[e] his country into some doctrinaire strait-jacket’ (Berlin, 1998, 628).  This led him, on the analysis offered by Isaiah Berlin, to ‘alter[ ] the fundamental concept of government and its obligations to the governed’ (Berlin, 1998, 636).  For ‘[Roosevelt] showed that it is possible to be politically effective and yet benevolent and human’ (Berlin, 1998, 636).  In Britain, the architects of New Jerusalem sought to follow his lead.  Thus, even as Britain lost its place of pre-eminence as a liberal democracy in what became ‘the American century’, it hosted a bold experiment in the egalitarian philosophy of government (Ferguson, 2004, 365-384).  By the time Hart and Rawls made their respective contributions to this body of philosophical thought, they were doing so in a liberal-democratic transnational space to which Andrew Gamble has given the name ‘Anglo-America’ (Gamble, 2003, 87).  This was a space in which egalitarian assumptions had taken on the status of a ‘given’.  And it was, as Oakeshott noted, a space in which both arguments for civil association and enterprise association enjoyed wide currency (Franco, 2004, 164-170).  Thus Hart and Rawls each spoke in distinct ways (the former a qualified consequentialist, the latter a qualified deontologist) to the practical concerns of those around them.

Conclusions

Lacey succeeds in detailing Hart’s many achievements as an academic.  Likewise, she presents a richly detailed account of his life.  While this review has concentrated on Hart’s academic contribution, Lacey’s success as a biographer deserves praise.  She devotes sufficient attention to his life to make Hart’s character vivid to her readers.  The picture that emerges is of one who comes closer than most to being a person ‘on whom nothing is lost’.(22)  He drew much from, inter alia, culture, religion, the institutions in which he studied and worked, and exposure to the influence of the USA (where he broke into his stride as an academic).  But, while attentive to these influences, he did not allow them to erode his sense of his own individuality.  The upshot, at the personal level, was introspection tending towards self-absorption.  However, this intense focus on the awkward individual he himself instantiated encouraged in him, as Lacey emphasises, a determination to defend and refine principles of liberal political philosophy.

We might contrast Lacey’s extended examination of the fine-grained detail of Hart’s life with the chapter devoted to John Rawls’s life in Thomas Pogge’s John Rawls.  Pogge’s account of Rawls’s life is instructive.  We learn that Rawls’s intense interest in justice was encouraged by the deaths of two young siblings (for which he held himself responsible) and by his combat experiences in World War Two.  But the account offered by Pogge is too brief to turn Rawls into what E.M. Forster called a ‘round’ character: a person who ‘cannot be summed up in a single phrase’ (Forster, 1962, 74).(23)  Instead, we find ourselves confronted with a ‘type’ or flat character in the form of a ‘Mr Justice’ (Forster, 1962, 73-74 (on ‘flat’ characters)).(24)  This is not true of Lacey’s Hart.  We find in him the ‘incalculability of life’ that makes a character round (Forster, 1962, 81).

Certainly, we cannot sum up Hart’s political philosophy in a single phrase.  What we find is a liberal-cum-social democratic admixture.  This is a feature of Hart’s thinking to which Lacey is very much alive.  But had she dwelt on it more closely, she might have resisted the temptation (to which others have succumbed) to categorise him as a social democrat.  Her decision to do so has some plausibility.  As we have noted, he recognised that few will be able to live autonomously without a ‘positive marshalling of social and economic resources’.  Here, we find Hart gesturing in the direction of ‘the morality of freedom’ as Joseph Raz later elaborated it (Raz, 1986).  But at no point in his career do we find Hart offering developed arguments in support of, for example, the post-War social democratic settlement or its informing ideal of New Jerusalem.  Rather, he focused his attention on, inter alia, the harm principle and other means by which to limit the range of circumstances in which the law impinges on the lives of individuals. 

Against this, however, we must set the fact that Hart identified deterrence as the general justifying aim of the criminal law.  This suggests that he was a proponent of enterprise association and qualified consequentialism.   For what is a system of criminal justice that promotes security (a social primary good) and distributes punishment fairly, if not an enterprise association that prioritises the pursuit of distributively just outcomes?(25)  One answer is a means by which to satisfy necessary conditions of civil association: an ordered environment in which the apparatus of the state endures because citizens recognise it as legitimate.  In light of these points, we should regard Hart as one whose arguments tended in the direction of civil association but who nonetheless grasped the significance of the morality of freedom.  (See Tables 1 and 2, below.)

While Lacey may have overstated her case in categorising Hart as a social democrat, she is right to emphasise the points of intersection between his work and that of  Rawls.  For both men made, on the analysis offered here, highly influential contributions to the egalitarian philosophy of government that has flourished in Anglo-America.  But while Hart’s contribution had affinities with civil association, Rawls’s revealed a commitment to enterprise association.  This is something to which Hart was very much alive.  This becomes clear when he teases out of A Theory of Justice the ‘[t]he ideal … of a public-spirited citizen who prizes political activity and service to others as among the chief goods of life’.  Hart does not dwell at length on this point.  But he creates the impression that the ‘citizen’ he describes is too earnest (and perhaps even priggish) to be a rounded human being and that Rawls’s political philosophy exhibits a perfectionist undertow.(26)  While not censorious in his response to Rawls, the ‘citizen’ upon whom Hart fixes his gaze seems to be something of a Boston Brahmin, intoning ‘New England Principles’ (Tocqueville, 2003, pt 1, ch 1 (on ‘New England Principles’).  Likewise, he calls to mind Sir Stafford Cripps (a member of Labour’s post-War government), exhorting the British to ‘play by the rules’ and to accept ‘fair shares’ (Kynaston, 2007, 350 (on Cripps).  Hart thus conjures up an image of stunted humanity much like that offered by Oakeshott in his account of enterprise association and its limitations as a model of human association.

Finally, we seem to find in Hart’s reflections on Rawls’s ‘citizen’ a wariness towards the state that extended to cultural forces (e.g., the Jewish faith) that play a part in shaping individuals.  In emphasising this feature of Hart’s make-up, Lacey makes it plain to her readers that he was reluctant to be a token of any particular type.  It is here that we find the roots of his liberalism.  He recognised that both the state and its practical agenda and the (too often) ‘blind impress’ of culture pose threats to the integrity of the individual.(27)  Hence, while he identified law as a practical necessity (without which we may become a suicide club) he was reluctant to see the individual integrated into a larger whole.  In this he shows (as we noted earlier) distaste for institutions and systems of belief that have ‘a palpable design on us’.  This is surely what we would expect from one who, while recognising the moral appeal of social democracy, staked out positions that would sustain a civil association.

Footnotes

(1) Unless otherwise stated, all references in the text and footnotes are to A Life of H.L.A. Hart.

(2) England was far from being the only context in which jurisprudence exhibited the philosophical weaknesses described by Hart.  See Schauer, 2006, 852, 852-853 (noting that ‘[p]rior to Hart, jurisprudence was, to be sure, a theoretical topic, but it was only rarely a philosophical one’).

(3) Lord Devlin first set his views out in the Maccabean Lecture in Jurisprudence at the British Academy in July 1959.  His lecture was, inter alia, a response to the Report of the Wolfenden Committee, 1957, which argued that certain areas of private morality were ‘not the law’s business’: e.g., homosexual conduct between consenting adults.  Lord Devlin developed the arguments that feature in his Maccabean Lecture in Devlin, 1965.  

(4) The distinction Hart draws between core and penumbra may have come from Bertrand Russell.  In 1923, Russell stated ‘all words are attributable without doubt over a certain area, but become questionable within a penumbra, outside which they are again certainly not attributable’ (Slated, ed, 1988 149; Bix, 1993, 10, n 21).

(5) Walden, 2006, 139 (quoting John Keats).

(6) Horwitz, 1997, 17, identifies English culture, philosophy, and politics as having exerted a significant influence on Hart.

(7) The argument in The Socialist Case is an example of ‘New’ Fabian thinking (featuring advocacy of, inter alia, Keynesian demand management, income redistribution, and nationalisation of national monopolies).  See Marquand, 1988, 25-26.

(8) Horwitz, 1997, 577-578, describes Hart as a ‘Jewish social democrat’ and as ‘a Man of the Left’.

(9) Cf Honoré, 1993, 298-299 (noting that ‘[d]uring the war … [Hart] became a Labour Party supporter – a democratic socialist with liberal leanings, not a Marxist – and remained one for the rest of his life’.

(10) Wechsler is best known for his account of ‘neutral principles of constitutional government’ (that specify that judicial decisions should be based on ‘analysis and reasons quite transcending the immediate result that is achieved’) (Wechsler, 1959, 1-35).

(11) The ‘policy approach’ explains legal rules and decisions concerning causation by reference to, inter alia, the law’s economic impact (188).

(12) Condescension of the sort described in the text finds expression in Green, 1955, ix (where Zadie Smith, in her foreword, notes Graham Greene’s determination to ‘fight against big, featureless impersonal ideas’ that have their roots in American political philosophy).  See also Hitchens, 2006, ch 1 (discussing, inter alia, Harold Macmillan’s view that ‘[t]hese Americans represent the new Roman Empire and we Britons, like the Greeks of old, must teach them how to make it go’).

(13) 280.  See also Hart, 1968, 9 and 25.

(14) In 1952-53, Rawls (who then held a post at Princeton) had visited Oxford and attended Hart’s lecture course.  See Pogge, 2007, 16.  Rawls was also a visitor to All Souls in 1965 (269).

(15) Rawls’s statement of his first principle of justice was, indeed, provisional.  In later works, he sought to refine it.  See, for example, Rawls, 2001, 42.

(16) See Freeman, 2007, 75 (who notes that Rawls ‘does not make it clear whether he intends [his] first principle of justice to be as potentially wide-ranging as Mill’s [harm] principle’).

(17) Rawls’s theory of justice is ‘realistically utopian’ since it is informed by the aim of ‘probing the limits of practicable political possibility’.  See Rawls, 2007, 10-11.  

(18) Cf  Franco, 2004, 155-156 (noting that, in his efforts to define civil association, Oakeshott staked out positions that exhibited similarities to those of Hart).

(19) The priority attached to consequentialist concerns by Hart is sequential.  On ‘sequential argument’, see B. Chapman, ‘Law Incommensurability, and Conceptually Sequenced Argument’ (1998) 146 University of Pennsylvania Law Review 1487.

(20) The priority attached to deontological considerations by Rawls is, in some circumstances, substantive and not merely sequential.  This is because ‘a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages’.  (See also Rawls, 1971, 61 (noting that the two principles of justice ‘are to be arranged in a serial order with the first principle prior to the second’.)

(21) See also, Evans, 2005, 138 (noting that Josef Goebbels (the Nazi Minister of Propaganda) described The Myth of the Twentieth Century, the magnum opus of the Third Reich’s most prominent philosopher, Alfred Rosenberg, as a ‘philosophical belch’).

(22) Hoggart, 1995, 182 (noting Henry James’s injunction, ‘Try to be one of the people on whom nothing is lost’).

(23) Forster’s analysis relates to characters in works of fiction.  Nonetheless, it has relevance to the work of biographers (who are more or less successful in their efforts to breathe life into those whose lives they examine).

(24) The editors of the Times Higher Education Supplement characterised Rawls as ‘Mr Justice’ in 2007, when seeking to draw attention to John Dunn’s review of John Rawls’s Lectures on the History of Political Philosophy (THES, 2007, no 1750, 1).

(25) Social primary goods are those ‘things that every rational man is presumed to want’ in order to pursue a ‘rational plan of life’ (Rawls, 1971, 62).

(26) Perfectionism is ‘the ethical position that the goal of life is to pursue a perfect [or, at least, highly estimable] ideal of character and conduct’  (Blackburn, 1994, 282).

(27) For discussion of the (often) blind impress of culture, see Rorty, 1989, ch 2 (drawing on the poetry of Philip Larkin).

(28) Exclusionary reasons provide grounds for disregarding either all or some reasons that would otherwise have action-guiding significance when reaching decisions in particular practical contexts.  See Raz, 1990, 35-48.