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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.

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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.

An Overview of Dworkin’s One Right Answer Thesis

Posted in Uncategorized by drsivalaw on February 24, 2010

Introduction

The judiciary plays an important role in all legal system. But the question is: How does a judge decides a case? If a case is brought to the court, the judge cannot refuse to adjudicate it on the basis that there is no precedent or the lawyer cannot cite any authority on the point of law.

In this connection, Dworkin observed that there is a right answer to each case. Dworkin’s Right Thesis involves the general claim that within legal practice and a proper understanding of the nature of law, rights are more fundamental than rules. This is the opposite claim to most legal positivists.

Rights are trumps in Dworkin’s Theory, which means that if there is any right which comes into conflict with any policy, the right must prevail.

Law as Seamless Web

The law is to be treated as a seamless web in which there always is a right answer. Judicial decisions are characteristically generated by principles and enforces existing political rights, so that litigants are entitled to the judge’s best judgment about what their rights are. To Dworkin, different judge may come to different conclusions but he insists that judges may not rely on their own political views but only on their beliefs in the soundness of those convictions.

It has long been received opinion that judges “filled in the gaps” left by rules by using their discretion. HLA Hart has written, “That the rule-making authority must exercise discretion…” Hart saw rules as ‘open-textured’. Austin saw no problem in this. It is the thesis of Dworkin that judicial discretion in what Dworkin calls its “Strong Sense” does not exist. Dworkin rejects the view regarding judicial discretion. The judges often are heard to say: “We find the law to be this”, and they say they discover the law. They do not profess the law to be their own discretion.

For Dworkin, judges are always constrained by the law. In every adjudication of the so-called “hard-cases’ there are controlling standards which a judge is obligated to follow.

Dworkin objects to judges acting as ‘deputy legislators’ for 3 reasons:

1. Separation of Power: It offends the democratic ideal that a community should be governed by elected officials answerable to the electorate. The judge not being elected must not substitute his own will as against the legislature. (In Lord Simmons words, “it’s a naked usurpation of legislative functions).

2. Retrospectivity & The Rule of Law: Dworkin’s 2nd objection to judicial originality is that “if a judge makes a new law and applies it retrospectively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event.”

3. Judicial Language: A careful analysis of judicial language clearly shows that most judges do not perceive themselves as making law. The say, for example. ‘we find the law in this case to be…’. This is indicative of an interpretive rather that creative exercise.

If judges are to make law, as what Hart said, that would be in contradiction to the theory of separation of power. If judges were to make law in hard cases, they would be applying the law retrospectively; that’s against the rule of law. Citizen has a complaint that even though he was not surprised by retrospective legislation, there was no liability at that time he did the act. If the citizen is being made retrospectively liable, it is because there was no law at that time that made him liable that places a special duty upon the legislature to justify retrospective legislation.

Judicial Discretion

For legal positivism, the law is the law posited. So what is the position in a case where a rule has not been posited?

Take a skateboard case. The actual legal position is likely to focus on language: “Is a skateboard a vehicle for the purpose of the by-law which prohibits vehicles to be used in Hyde Park?

The rule does not extend to determine the question of skateboards. Thus there is a gap in the law. We can simply say that because there is no mention, they are permitted. Both sides cannot refer to decided case-laws. The prosecution might say it is included in the mischief of the Act.

Dworkin wishes us to consider carefully what lawyers are actually doing as a matter of legal principle in hard cases. If both sets of lawyers are serious, both sides believe that they are correct. Both sides actually believe that there is an answer. Why then go to the court if you do not believe that your side is correct, that the law Is as you claim?

Austinian positivism is clear – when the rules ran out the judge operate as a deputy legislator filling in the gaps. To Austin, rules do not have extensionality. However, Neil MacCommick in his “Legal Rights and Legal Reasoning” said that we can extend rules by analogy but this will extend positivism in a way which goes against the essential core: it’s clarity. Austin was interested in the absolute clarity of law.

If for example, a judge decides that skateboards are included in the definition and are banned from Hyde Park, he adds to the wordings of the Statute – he comes to a posited decision. But the judge has now extended the law and this binds the future.

Dworkin is not satisfied with this model. The reasons are: Discretion is not free-standing but part of a process. Discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction. Discretion is not outside the law but internal to the law. If judicial decision making was unfettered discretion we would have to say that it is no special role for judges beyond being a political and administrative official. If judges were unfettered law makers they would have to be democratically elected.

If judges simply exercised discretion and make new rules they would be changing the rules of the game. Each time they do so they also commit a fraud on the litigants.

Dworkin has an alternative theory. The first step is to make a distinction between strong and weak discretion. Strong discretion is where the officials are bound by pre-existing standards set by the authority. Weak discretion is when the standard cannot be applied in a mechanical way. There’s a need to evaluate what the standard means in a new case. In weak discretion, there is no gap in the law. Strong discretion does not exist for judges. Weak discretion is part of the judicial role. The discretion is controlled and there are no gaps in the law.

Hart says that judges exercise strong discretion in hard cases. But that seems to equate: Rules + Discretion = New Rules.

In order to understand Dworkin’s criticism of Hart, we need to understand the distinction drawn by Dworkin regarding Rules and Principles, and Constructive Interpretation as propounded by Dworkin.

Legal Rules vs. Principles

Legal rules and principles for Dworkin exist to express and protect rights in the legal order. For Dworkin, the central approach within law emphasizes rights and the protection of the individual, including the protection of minorities who are left out of the consideration of the utilitarian.

Unlike the legal positivists, Dworkin insists that you can’t think of law as just rules. The idea that laws are rules induces distortion in legal reasoning. Instead we must distinguish rules from principles, policies and other non-rule standards.

In the operation of the legal system, policies are not appropriate to legal reasoning and principles are more important than rules as they surround the structure of rules.

All rules produce problem cases or hard cases which cannot be resolved by logical application of rules. Dworkin argues that in hard cases judges make use of standards that do not function as rules but operates as principles. Where two rules conflict, one rule is always wrong or invalid. Rules therefore operate in an all-or-nothing fashion.

Dworkin calls us to consider the actual operation of 4 cases, in particular, Riggs v Palmer.

In Riggs v Palmer, Elmer murdered his grandfather in order to inherit his will. Had the court taken the positivist view, that all laws are valid by the formal test (as per Hart’s thesis), the court would most probably decide in favor of Elmer. But the court did not allow Elmer to profit from his own wrong. That decision proceeded not on rules but on a principle of law, Nullus Commodum Capere Potest De Injuria Sua propria, that is, no one can profit from his own wrong.

Rules also do not cover the development of the Common Law through precedent and cannot adequately explain the creation of the “Neighbouring Principle” in Donogue v Stevenson by Lord Atkin. The creative role of Lord Atkin lies in his giving constructive interpretation of the earlier cases and formulating the principle in a new way.

Similarly, Lord Denning’s development of Promissory Estoppel doctrine in High Trees case was not pulled out of thin air.

We can see that the rules have a different meaning and different effect when you apply relevant principles. Whereas policies are the collective goals of society pursued by the legislature, democratically elected, principles are internal to law and are developed by the judiciary. So the rule that a person may not benefit from his own wrong is a principle which is found throughout the law.

For Dworkin, judges are always constrained by the law. There is no law beyond the law. In every adjudication of hard cases there are controlling standards which the judge is obligated to follow. Judicial decisions are generated by principles and enforces existing rights so that litigants are entitled to the judge ‘best judgment’ about what their rights are. Judges may not rely on their own political views but only on their belief in the soundness of their contributions.

Rights vs. Rules

Dworkin distinguishes right from rules. Rights are more fundamental than rules in a legal system. Rules express rights but the rights exist before their expression in the form of rules. This is opposed to HLA Hart’s view where rights develop from legal rules. The reason why Dworkin says rights are more important is because rights develop in the legal system through the working out of the political morality.

In summary, Dworkin’s right thesis asserts that a right legal answer would be one that asserts and protect rights which are explicit or implicit in the fundamental values of the legal system. To get the right answer, judges must have the ultimate wisdom from the history of decisions and the understanding of the political value of a system. A right answer is one which produces a better fit with existing law and legal practices. Here, Dworkin constructs a model of such a judge called Hercules. Although Hercules is only an ideal model, judges have an obligation to aim for the right answer.

Criticism of Right Thesis

MacCommick assert that the proposition that judge have a weak discretion and that they are to find the right answer from the principles is unsustainable.

Critics such as Greenawalt have argues that the ‘denial of discretion is wrong and is inconsistent with our ordinary understanding of judicial responsibilities for opinions. To suggest that judges have discretion is not to imply that they have license to do what they will. The institution of judging offers the judge choice only within the constraints of judgment.’

Greenawalt argues that there are also examples which contradict the right theories. For example, in a case of nuisance, the judge may consider the effect of his discretion on the community before accepting the right of the claimant. Such cases indicate that judges do decide on policies while determining the rights of the individual.

Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights.

Other critics also criticize Dworkin on the ground that the right thesis cannot be demonstrated that there is only one right answer to a question. Supposing two judges are to decide whether Elmer is entitled to inherit his grandfather’s property, they may answer this question differently from each other and yet claim that each answer is the right answer. How do we demonstrate that there is only one right answer to a problem/

Dworkin’s answer is that it is insufficient to say that there can be no right answer just because they cannot be proved or demonstrated.

Hart criticizes Dworkin’s right answer thesis as flawed and vulnerable to criticisms. Hart described Dworkin as a “Noble Dreamer”.

Peter Fitzpatrick called Dworkin’s strategy to give systematic unity to the legal system and legal practice “Myth Making”.

To his critics, Dworkin continues to build his myth and noble dream. While he began his writing in the early 1970s, Dworkin’s best known work, Law’s Empire was published in 1986. To Dworkin’s supporters, he is offering an uplifting image of law. Dworkin challenges us to renew our faith in the law by recasting the lenses through which we view the role of law and legal practice. In Dworkin’s word: “We live in and by the law … it makes us what we are …”

Stephen Guest says, “Dworkin’s Thesis is not his own making but it has been ascribed to him. It can be said that what Dworkin meant to say was that there is a possibility of finding the best answer. In other words, the judge is given the hope that he must not give up thinking that there is no best answer at all.

Conclusion

Dworkin’s Right Thesis wants us not to relent but to make the utmost effort to get the best answer. It is a sort of ideal that Dworkin seems to present to the judge in practical pursuit. As per Stephen Guest, “He (the judge) may not get it right but the duty is upon him to try nevertheless.

Dworkin’s work has consistently been concerned with judicial interpretation of law and the role of judges. Dworkin is clear as to the political values he is committed to. His philosophy stresses a ‘Right’ approach over utilitarian calculations.

It is aptly to describe Dworkin’s theory of law lies in the best moral interpretation of existing social practices. His theory of justice is that all political judgments ought to rest ultimately upon the injunction that, people are equal as human beings, irrespective of the circumstances.

However, it seems Dworkin is very much influenced by professor Ron Fuller. His outlook of law come to be colored deeply by ethics and morality as expressed in hi theory and can be seen in his preferences of principles over rules. As a matter of fact, all legal principles pertain to the domain of morality.

My criticism of Dworkin’s analysis is that Dworkin sought to merge the descriptive elements with the prescriptive to the extent that he has sacrificed reality to a noble dream.

However, dreams have their place. They are better than nightmares. This dream looks at what the law can achieve. It sees a purpose to law rather than a mere instrument for social control. We awake from the dream refreshed.

This is what law is: for the people we want to be and the community we aim to have (Dworkin Law’s Empire)

UTILITARIANISM – OVERVIEW

Posted in Uncategorized by drsivalaw on February 24, 2010

Fundamental Tenets of Utilitarianism

Basic Insights

1. The purpose of morality is to make the world a better place.

2. Morality is about producing good consequences, not having good intentions.

3. We should do whatever will bring the most benefit (i.e., intrinsic value) to all of humanity.

The Purpose of Morality

1. The utilitarian has a very simple answer to the question of why morality exists at all: –The purpose of morality is to guide people’s actions in such a way as to produce a better world.

2. Consequently, the emphasis in utilitarianism is on consequences, not intentions.

3. The fundamental imperative of utilitarianism is: Always act in the way that will produce the greatest overall amount of good in the world. –The emphasis is clearly on consequences, not intentions.

Emphasis on the Overall Good

 1. We often speak of “utilitarian” solutions in a disparaging tone, but in fact utilitarianism is a demanding moral position that often asks us to put aside self-interest for the sake of the whole.

2. Utilitarianism is a morally demanding position for two reasons: –It always asks us to do the most, to maximize utility, not to do the minimum. –It asks us to set aside personal interest.

The Dream of Utilitarianism: Bringing Scientific Certainty to Ethics

1. Utilitarianism offers us a powerful vision of the moral life, one that promises to reduce or eliminate moral disagreement.

–If we can agree that the purpose of morality is to make the world a better place; and

–If we can scientifically assess various possible courses of action to determine which will have the greatest positive effect on the world; then

–We can provide a scientific answer to the question of what we ought to do.

Instrinsic Value

1. Many things have instrumental value, that is, they have value as means to an end. 

2. However, there must be some things which are not merely instrumental, but have value in themselves.  This is what we call intrinsic value.

3. What has intrinsic value?  Four principal candidates:

–Pleasure •Jeremy Bentham

–Happiness •John Stuart Mill

–Ideals •G. E. Moore

–Preferences •Kenneth Arrow

Jeremy Bentham (1748-1832)

  • Bentham believed that we should try to increase the overall amount of pleasure in the world
  • Definition: The enjoyable feeling we experience when a state of deprivation is replaced by fulfillment.

Advantages

–Easy to quantify

–Short duration

–Bodily

Criticisms

–Came to be known as “the pig’s philosophy”

–Ignores higher values

–Could justify living on a pleasure machine

John Stuart Mill (1806-1873)

  • Bentham’s godson
  • Believed that happiness, not pleasure, should be the standard of utility.

Advantages

–A higher standard, more specific to humans

–About realization of goals

Disadvantages

–More difficult to measure

–Competing conceptions of happiness

G. E. Moore  (1873-1958)

  • G. E. Moore suggested that we should strive to maximize ideal values such as freedom, knowledge, justice, and beauty.
  • The world may not be a better place with more pleasure in it, but it certainly will be a better place with more freedom, more knowledge, more justice, and more beauty.
  • Moore’s candidates for intrinsic good remain difficult to quantify.

Kenneth Arrow (1921 – 1962)

  • Kenneth Arrow, a Nobel Prize winning  Stanford economist, argued that what has intrinsic value is preference satisfaction.
  • The advantage of Arrow’s approach is that, in effect, it lets people choose for themselves what has intrinsic value.  It simply defines intrinsic value as whatever satisfies an agent’s preferences.  It is elegant and pluralistic.

The Utilitarian Calculus

  •  Math and ethics finally merge: all consequences must be  measured and weighed.
  • Units of measurement:

–Hedons: positive

–Dolors: negative

 What do we calculate?

  • Hedons/dolors may be defined in terms of

–Pleasure

–Happiness

–Ideals

–Preferences

  • For any given action, we must calculate:

–How many people will be affected, negatively (dolors) as well as positively (hedons)

–How intensely they will be affected

–Similar calculations for all available alternatives

–Choose the action that produces the greatest overall amount of utility (hedons minus dolors)

Example: Debating a free lunch program for students

Utilitarians would have to calculate:

  • Benefits

– Increased nutrition for x number of children

– Increased performance, greater long-range chances of success

– Incidental benefits to contractors, etc.

  • Costs

– Cost to each taxpayer

– Contrast with other programs that could have been funded and with lower taxes (no program)

  • Multiply each factor by

– Number of individuals affected

– Intensity of effects

How much can we quantify?

Pleasure and preference satisfaction are easier to quantify than happiness or ideals

Two distinct issues:

  •  Can everything be quantified?

– Some would maintain that some of the most important things in life (love, family, etc.) cannot easily be quantified, while other things (productivity, material goods) may get emphasized precisely because they are quantifiable.

– The danger: if it can’t be counted, it doesn’t count.

  • Are quantified goods necessarily commensurable?

– Are a fine dinner and a good night’s sleep commensurable?  Can one be traded or substituted for the other?

It is important to remeber that Utilitarianism doesn’t always have a cold and calculating face—we perform utilitarian calculations in everyday life.

 

Act and Rule Utilitarianism

Act utilitarianism –Looks at the consequences of each individual act and calculate utility each time the act is performed.

Rule utilitarianism –Looks at the consequences of having everyone follow a particular rule and calculates the overall utility of accepting or rejecting the rule.

An Example

Imagine the following scenario.  A prominent and much-loved leader has been rushed to the hospital,  grievously wounded by an assassin’s bullet.  He needs a heart and lung transplant immediately to survive.  No suitable donors are available, but there is a homeless person in the emergency room who is being kept alive on a respirator, who probably has only a few days to live, and who is a perfect donor.  Without the transplant, the leader will die; the homeless person will die in a few days anyway.  Security at the hospital is very well controlled.  The transplant team could hasten the death of the homeless person and carry out the transplant without the public ever knowing that they killed the homeless person for his organs.  What should they do?

–For rule utilitarians, this is an easy choice.  No one could approve a general rule that lets hospitals kill patients for their organs when they are going to die anyway.  The consequences of adopting such a general rule would be highly negative and would certainly undermine public trust in the medical establishment.

–For act utilitarians, the situation is more complex.  If secrecy were guaranteed, the overall consequences might be such that in this particular instance greater utility is produced by hastening the death of the homeless person and using his organs for the transplant.

The Continuing Dispute

Rule utilitarians claim:

–In particular cases, act utilitarianism can justify disobeying important moral rules and violating individual rights.

–Act utilitarianism also takes too much time to calculate in each and every case.

Act utilitarians respond:

–Following a rule in a particular case when the overall utility demands that we violate the rule is just rule-worship.  If the consequences demand it, we should violate the rule.

–Furthermore, act utilitarians can follow rules-of-thumb (accumulated wisdom based on consequences in the past) most of the time and engage in individual calculation only when there is some pressing reason for doing so.

Criticisms of Utilitarianism

1. Responsibility –   Utilitarianism suggests that we are responsible for all the consequences of our choices.

The problem is that sometimes we can foresee consequences of other people’s actions that are taken in response to our own acts.  Are we responsible for those actions, even though we don’t choose them or approve of them?

–Consider Bernard Williams’ example of Jim in the village

–Imagine a terrorist situation where the terrorists say that they will kill their hostages if we do not meet their demands.  We refuse to meet their demands.  Are we responsible for what happens to the hostages?

–Imagine someone like Sadam Hussein putting children in targets likely to be bombed in order to deter bombing by the United States.  If we bomb our original targets, are we responsible if those children are killed by our bombing?

2. Integrity –   Utilitarianism often demands that we put aside self-interest.  Sometimes this means putting aside our own moral convictions.

– Consider Bernard Williams on the chemist example.

–Develop a variation on Jim in the village, substituting a mercenary soldier and then Martin Luther King, Jr. for Jim.  Does this substitution make a difference?

Integrity may involve certain identity-conferring commitments, such that the violation of those commitments entails a violation of who we are at our core.

3. Intentions –   Utilitarianism is concerned almost exclusively about consequences, not intentions.

–There is a version of utilitarianism called “motive utilitarianism,” developed by Robert Adams, that attempts to correct this. nIntentions may matter is morally assessing an agent, even if they don’t matter in terms of guiding action.

4. Moral luck –   By concentrating exclusively on consequences, utilitarianism makes the moral worth of our actions a matter of luck.  We must await the final consequences before we find out if our action was good or bad.

This seems to make the moral life a matter of chance, which runs counter to our basic moral intuitions.

–We can imagine actions with good intentions that have unforeseeable and unintended bad consequences

–We can also imagine actions with bad intentions that have unforeseeable and unintended good conseqeunces.

5. Who does the calculating? –   Historically, this was an issue for the British in India.  The British felt they wanted to do what was best for India, but that they were the ones to judge what that was.

–See Ragavan Iyer, Utilitarianism and All That

Typically, the count differs depending on who does the counting

–In Vietnam, Americans could never understand how much independence counted for the Vietnamese.

6. Who is included? –   When we consider the issue of consequences, we must ask who is included within that circle.

–Those in our own group  (group egoism)

–Those in our own country (nationalism)

–Those who share our skin color (racism)

–All human beings (humanism or speciesism?)

–All sentient beings

Classical utilitarianism has often claimed that we should acknowledge the pain and suffering of animals and not restrict the calculus just to human beings.

Concluding Thought

Utilitarianism is most appropriate for policy decisions, as long as a strong notion of fundamental human rights guarantees that it will not violate rights of small minorities.

Utilitarianism – Article by Sandra LaFave

Posted in Uncategorized by drsivalaw on February 24, 2010

The notion of an ethics based on utility — usefulness for human concerns, especially human happiness — was one of the revolutionary Continental ideas of the Enlightenment period. Cesare Beccaria (1738-1794), for example, in his extremely influential work On Crimes and Punishments, argues that punishments should be inflicted only insofar as they are useful for human purposes; and that governments should not think themselves free to punish inhumanely in the name of God. Beccaria is joined by thinkers such as Hobbes, Hume, Diderot, Helvetius, and Montesquieu.

These notes focus mainly on the version of utilitarianism defended by John Stuart Mill as expressed in his classic work Utilitarianism (1861).

But Mill (1806-1873) was not the first English-speaking utilitarian philosopher; Jeremy Bentham (1748-1832), a friend of James Mill, J. S. Mill’s father, is usually considered the founder of British utilitarianism. The contemporary philosopher Paul Taylor traces the foundations of British utilitarianism back even further, to David Hume (1711-1776), the famous British empiricist, who claims in his Treatise that people invent rules for conduct because having such rules is most useful for society as a whole.

However, the differences among the early utilitarians are slight, so that most of what is said in these notes regarding Mill is equally applicable to Hume and Bentham.

One important difference between Bentham and Mill arises regarding the question, “What is the ultimate desideratum?”. Bentham says pleasure is the highest natural good, and does not think any pleasures are “objectively” better than any others: “Pushpin is as good as poetry.” But Bentham does not mean all pleasures are equally valuable either; pleasures are better if more intense, long-lasting, certain, nearby, fecund (capable of producing even more pleasures), pure (not mixed with pain), and wide-ranged (the more people who enjoy, the better). According to Bentham, these attributes are part of the calculus of felicity, which you should use to compute the overall value of any pleasure. Mill, by contrast, says that some pleasures are in themselves better than others (whether or not they are intense, long-lasting, certain, etc.).

The Utilitarian Project

Utilitarians intend their theory to be not only normative, but also descriptive. In Chapter I of Utilitarianism, Mill says that even though people do agree pretty much about moral matters, they don’t really know why they agree. They don’t recognize any first principles from which moral judgments are deduced, or any self-evident moral truths. But to Mill people agree for an obvious reason: everyone is really a utilitarian (whether they know it or not)! Utilitarianism is the real (unexpressed) ultimate standard of morality — the real principle in terms of which all moral judgments are made, and, he thinks, should be made. In other words, he is doing both descriptive and normative ethics.

Mill thinks that if he can find the fundamental principle, he can thus show how to proceed whenever a specific moral decision has to be made. Bentham even speaks of a “hedonic calculus,” in terms of which we can calculate, using mathematical methods, the answers to moral questions! According to the utilitarians, then, judgments about morality will eventually be as certain and well-grounded as judgments in the sciences.  

The Fundamental Moral PrincipleMill says the Fundamental Principle of Morality is the Principle of Utility, or Greatest Happiness Principle: pick the course of action that is most likely to produce the greatest good (satisfaction, pleasure, happiness) of the greatest number of people. This is and has always been the fundamental principle of morality, per Mill.

As Mill says, “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain and the privation of pleasure.” And “the standard is not the agent’s own greatest happiness, but the greatest amount of happiness altogether.”

Illustrations: the case of the innocent fat man blocking the exit of the cave, the case of the rescue driver and the innocent person in the road.  

The Underlying Psychology (Theory of Human Nature)

Much of Utilitarianism is devoted to countering various objections to it. Some of these objections concern “human nature,” and Mill’s responses to these objections reveal his psychology.

Objection 1
One objection is that utilitarianism is a simple hedonism, that utilitarians are simply pleasure-seekers. For example, consider the case of the Christians and the Romans. Many Romans get lots of pleasure from seeing a few Christians get eaten by lions. The objector would say, utilitarianism says the act is right that produces the greatest happiness; but here’s a case where the greatest happiness (that of the Romans, who greatly outnumber the Christians) is produced by acts (lions eating Christians) that are surely quite wrong.

Mill immediately defends utilitarianism against this objection (which was made against Bentham). He takes pains to establish that utilitarianism is a rigorous and demanding morality. True, he says, utilitarianism claims that acts are right in accordance with the degree to which they produce pleasure, and wrong to the degree to which they produce pain. And people naturally do seek pleasure and avoid pain. But the quality of pleasure that satisfies a human is different from that which satisfies an animal. People are capable of more than animals, so it takes more to make a human happy. Thus, a person who is acquainted with both kinds of pleasures — the pleasures of animals and the pleasures of humans — will almost invariably choose the higher-quality, human pleasures, and reject the merely animal pleasures. As Mill puts it,

“Now it is an unquestionable fact that those who are equally acquainted with and equally capable of appreciating and enjoying both do give a most marked preference to the manner of existence which employs their higher faculties. Few human creatures would consent to be changed into any of the lower animals for a promise of the fullest allowance of a beast’s pleasures. … It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are of a different opinion, it is because they know only their side of the question.”

So since the Romans are enjoying what is presumably mere “animal” pleasure — the irrelevant kind of pleasure — it doesn’t matter that they’re getting a lot of it, more than the Christians. It’s the quality, not the quantity, of pleasure that really counts.

Objection 2
A second objection stems from the fact that utilitarianism demands that people put the interests of the group before their own interests. As Mill says, “the happiness which forms the utilitarian standard of what is right in conduct is not the agent’s own happiness but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator. In the Golden Rule of Jesus of Nazareth, we read the complete sprit of the ethics of utility.” Thus, some say, utilitarianism is too hard for people; its standard is too high.

Mill replies to this in a couple of ways:

1. Most people, as a matter of fact, don’t have to look out for the interests of any very large group; they are not concerned with “public utility,” but only with “private utility,” the interests of a few people important to them, whose interests they want to protect anyway.

2. And people possess natural powerful sentiments of “fellow-feeling” and sympathy for others (even strangers), which, if cultivated systematically by education and reasonable social arrangements, could easily be fostered even further. (This notion comes from Hume, who was similarly optimistic about human nature.) 

Objection 3
A third objection is that utilitarianism is too easy, because it allows that the right act for a person might well be one that also benefits her (if she acts for the greatest good of the greatest number, it’s likely that she’ll be among the greatest number). So the right act is the one in accord with self-interest, and might very well be performed for motives of self-interest alone. For Kant, this would negate its moral worth.

Mill separates the question of the moral worth of an act from the question of the moral worth of an agent: “the motive has nothing to do with the morality of the action, though much with the worth of the agent.” There is nothing wrong with self-interest as a motive if it produces the right act. And it might even indicate a highly worthy agent; morally developed persons find the practice of virtue essential to their own happiness. “Virtue, according to the utilitarian doctrine is not naturally and originally part of the end, but it is capable of becoming so; and in those who live it disinterestedly it has become so, and is desired and cherished, not as a means to happiness, but as a part of their happiness.”

Flexibility

Since the same act might in some situations produce the greatest good of the greatest number, but in other situations not, utilitarianism allows moral rules to change from age to age, situation to situation. Utilitarians consider this flexibility a good feature of their system.

For example, there may be circumstances in which birth control or homosexuality might be the best practices for producing the greatest happiness of the greatest number in a community. For example, in cases of overpopulation and scarcity, it might be better for the community to limit population growth by encouraging birth control and homosexuality. Utiltarians would say birth control and homosexuality would be morally correct in these circumstances. On the other hand, if a disastrous plague occurred, wiping out most members of a community, birth control and homosexuality might well be morally forbidden, because these practices inhibit repopulation.

The “Proof” of Utilitarianism

Mill devotes the better part of Chapter IV of Utilitarianism to a “proof” of utilitarianism. Remember, Mill wants ethics to be as certain as logic or science. His proof has been much discussed.

He says, “The utilitarian doctrine is that happiness is desirable, and the only thing desirable, as an end; all other things being only desirable as means to that end.” This is the claim that requires proof. If Mill can show that happiness is the ultimate end (in the sense of “goal” or “purpose”), then it, and only it, should serve as the basis for morality.

Objection 4
Certainly happiness is something that people in fact strive for; so Mill is certainly correct when he says that people desire it. In other words, he is correct in his description. But note that Mill wants to say more than this; he wants to say that happiness is also the normative end — that is, not only the thing people do in fact strive for, but the thing they ought to strive for. This is the sticky part. Other ethical philosophers, such as Kant, argue that the ultimate normative goal is not happiness at all, but goodness. Kant says the essence of morality is striving for goodness, and being good won’t necessarily make you happy; but it’s better to be good than to be happy. For Kant, the ultimate end or goal for humans is being good. Mill, by contrast, says the ultimate end is happiness.

So Mill needs to prove his claim that the ultimate end is happiness, i.e., that happiness is the ultimate good, that no good is higher than it. Mill says, “Questions about ends are … questions about what things are desirable.” Then comes the key move in his proof: “The sole evidence it is possible to produce that anything is desirable is that people do actually desire it.” And this is an empirical question; it can be answered by looking at what people desire. And, not surprisingly, when Mill looks at what people desire, he finds that in fact they desire happiness. “No reason can be given why the general happiness is desirable, except that each person, so far as he believes it to be attainable, desires his own happiness. This, however, being a fact, we have not only all the proof which the case admits of, but all which it is possible to require, that happiness is a good, that each person’s happiness is a good to that person, and the general happiness, therefore, a good to the aggregate of all persons.”

Note the fallacy of composition here.

This part of the argument shows that happiness is a good; Mill then goes on to argue that it is the only thing really desired, and that all other things are desired only insofar as they tend to produce happiness (pleasure) and prevent unhappiness (pain). Many philosophers have noted the deficient psychology here. Suppose you see your child run into a busy street. You are horrified. A car is driving very fast toward the child. You see that you can save the child’s life if you run out into the street and grab the child in your arms. Realizing this, do you now stop and calculate how much happiness you’ll receive if you save the child? Do you say to yourself, “Gee, it would make me feel really good to save my child. So I guess I’ll do it!” No. You feel good after saving the child because you saved the child. You didn’t save the child in order to feel good.

In general, you feel good when you get things you already value. You don’t derive the value of something by estimating how much happiness you’d feel if you had it. Its goodness doesn’t come from the fact that it would make you happy; so Mill’s claim that we value things (i.e., we call them “good”) only insofar as they tend to produce happiness seems just false. Rather, our happiness about getting what we think is good comes from the fact that we think it’s good.

Other Objections to Utilitarianism

  1. Some critics charge that it takes too much time to figure out utility in each case. What if it’s an emergency and you have to make a decision in a split-second? How do you compute utility values fast enough to make sure you’re doing the right thing?

    Mill dismisses this criticism: “defenders of utility often find themselves called upon to reply to such objections as this — that there is not time, previous to action, for calculating and weighing the effects of any line of conduct on the general happiness. This is exactly as if anyone were to say that it is impossible to guide our conduct by Christianity because there is not time, on every occasion on which anything has to be done, to read through the Old and New Testaments.” There is general agreement, because of the collective, learned experience of people, about what makes for the most utility; we can usually rely on that. Truly atypical cases are rare, and perhaps simply tragic.

    Rule-utilitarianism (see below) formalizes this more rigorously.

  2. Contemporary philosophers such as John Rawls raise an extremely important objection to utilitarianism. Rawls focuses on the issue of rights, justice, fairness, and desert. He asks, is utilitarianism compatible with the notion of inalienable rights (rights that cannot be taken away from a person)? That is, could a person defend both views consistently?

    Rawls, and others, say no: there is no way one could be a utilitarian and maintain a notion of inalienable rights. Why? Because the overriding goal in a utilitarian society is the happiness of the greatest number, the happiness of the group. Mill sees society on the model of a big person, who can control, deny, and delay the gratification of certain parts for the sake of greater satisfaction of the whole. Thus the fates of individuals who might get in the way of the grand plan don’t matter much. I have my rights only as far as my having them doesn’t interfere with the greatest happiness of the greatest number.

    For Rawls there is something intuitively unfair about this. Rawls’ notion of justice as fairness is an attempt to correct this.

  3. Mill sometimes speaks as though the goal of utilitarianism is the greatest total satisfaction. But the greatest total satisfaction doesn’t necessarily equal the greatest distributive satisfaction, which in turn does not necessarily equal the fairest distribution of satisfaction. For example, what if there were superhedonists (people whose happiness requires more pleasure than normal) and anhedonists (people who cannot experience pleasure)?
  4. Mill posits a dominant “natural” feeling of sympathy and benevolence among persons. Without this fellow-feeling, it isn’t clear that utilitarianism could ever function in practice. But there are many views about “human nature” — including the view that there’s no such thing as human nature! — and Mill’s is one of the more optimistic ones.
  5. Friedrich Nietzsche, a philosopher of the latter half of the 19th century, criticizes both Christianity and utilitarianism with the same arguments. He says both Christianity and utilitarianism make the assumption that everybody is equal, in the sense that everyone’s satisfactions count equally. Utilitarianism says if it’s a choice between my happiness and the good of the many, I am supposed to give up my happiness; Christianity says “Love thy neighbor as thyself’.” Nietzsche says, “Why?” to both principles.

    Nietzsche’s view derives from a common misunderstanding of evolution. He thinks Darwin says that some members of animal species are “superior” to others, because they are “winners” in the struggle for survival. It thus stands to reason that there must be superior humans also. Now suppose I am a superior person. Why should I give up my satisfactions for the sake of the inferior people? For Nietzsche, both Christianity and utilitarianism reduce people to the lowest common denominator. They “sacrifice human quality for human quantity.”

Act and Rule Utilitarianism

Mill seems to claim that the criterion of the rightness or wrongness of individual acts is utility. This means, strictly speaking, that there can be no general moral rules, since every case is different. You have to take each possible act separately and compute utility values; this computation alone determines the rightness or wrongness of the act in question.

Besides the question of whether this is possible or practical in actual cases of moral decision-making (where time is often of the essence), Ross and others object in another way. Suppose a case where you have to choose between two acts which have the same utility-value, but one comes under some moral rule and the other doesn’t. For example, suppose you must choose between actually doing your piano exercises and telling the truth when your teacher asks, “Did you practice?”; or doing something else instead and lying to your piano teacher that you did them, when you really didn’t (say he’d be extremely happy if you told him this and would never know the difference). Since we are looking only at the utility of the act, and the utility of these two acts is equal, a utilitarian shouldn’t care which we do. It looks as though neither act is morally better, by utilitarian standards. So you could do either one.

But many people object here; they say obviously it’s better not to lie, even if the utility is the same. Notice we ignore considerations of utility when we say this, and we say it anyway. So, for Ross and Hospers, there must be more to morality than utility.

Cases such as these caused philosophers to begin to distinguish Mill’s act-utilitarianism and a different version of utilitarianism, called rule-utilitarianism. Rule-utilitarianism says morality lies in abiding by those rules that, if followed universally, would most likely produce the greatest happiness. So, for example, you decide there’s no need for you to go out of your way to vote on Election Day. You reason that your vote most probably won’t make any difference to the outcome (and certainly you are correct here; the chances of the election being decided by one vote are very slim indeed). So, you reason, no one will be hurt by your failing to vote (no utiles lost), and your not voting is thus perfectly justifiable under act-utilitarian criteria.

The rule-utilitarian would disagree. The rule-utilitarian would say it’s still wrong for you not to vote — hence the total number of positive or negative utiles from any particular act isn’t the only relevant factor in determining morality. The rule-utilitarian reasons that utility (more high-quality pleasure, happiness, etc.) would surely result if everyone followed rules such as “Perform your duties as a citizen” than if everyone followed the rule “Ignore your duties as a citizen.” Therefore, you must vote, the rule-utilitarian would say, because of the bad consequences that would result if everyone acted as you are acting. And in general, says the rule-utilitarian, you are morally bound to avoid actions that if performed by everyone would produce negative utiles.

Note that it’s not really clear whether Mill was actually an act-utilitarian as portrayed in these test case problems; he just didn’t think of these kinds of cases. Even Hume, earlier, had recognized that individual acts in accordance with the rules may well NOT serve the public interest, but that the rules should be followed nonetheless because of their overriding usefulness. Thus, we find in Hume the outlines of the position that later came to be known as rule-utilitarianism.

INTRODUCTION TO UTILITARIANISM

Posted in Uncategorized by drsivalaw on February 24, 2010

Consequentialist moral theories are teleological: they aim at some goal state and evaluate the morality of actions in terms of progress toward that state.  For Jeremy Bentham, who is a positivist, his moral theory formed part of his censorial jurisprudence – evaluating the ‘ought’ question, whilst remaining committed to the idea that the proper subject matter of jurisprudence is expositorial – positivism.

His theory of Utilitarianism is the best known version of consequentialism is. This theory defines morality in terms of the maximization of net expectable utility for all parties affected by a decision or action. Although forms of utilitarianism have been put forward and debated since ancient times, the modern theory is most often associated with the British philosopher John Stuart Mill (1806- 1873) who developed the theory from a plain hedonistic version put forward by his mentor Jeremy Bentham (1748- 1832). As most clearly stated by Mill, the basic principle of utilitarianism is:

Actions are right to the degree that they tend to promote the greatest good for the greatest number.

Of course, we are still unclear about what constitutes “the greatest good.” For Bentham, it was simply “the tendency to augment or diminish happiness or pleasure,” with no distinctions to be made between pleasures or persons–all measures are strictly quantitative. For Mill, however, not all pleasures were equally worthy. He defined “the good” in terms of well-being (Aristotle’s eudaimonia), and distinguished not just quantitatively but also qualitatively between various forms of pleasure. In either case, the principle defines the moral right in terms of an objective, material good. The point is to make the theory “scientific,” and the utility principle is an attempt to bridge the gap between empirical facts and a normative conclusion–a simple cost/benefit analysis is proposed.

Both men insisted that “the greatest number” included all who were affected by the action in question with “each to count as one, and no one as more than one.” Any theory that seeks to extend benefits not only to the self but also to others is a form of altruism . (Another goal-directed theory is egoism, which promotes the greatest good for the self alone.)

Utilitarianism is a simple theory and its results are easy to apply. It also allows for degrees of right and wrong, and for every situation the choice between actions is clear-cut: always choose that which has the greatest utility.

There are several objections, however–

1. It is not always clear what the outcome of an action will be, nor is it always possible to determine who will be affected by it. Judging an action by the outcome is therefore hard to do beforehand. The theory therefore relies on speculation as the basis for action.

2. It is very difficult to quantify pleasures for cost/benefit analysis (but since this only has to be done on a comparative scale, this may not be as serious an objection as it at first seems).

3. The calculation required to determine the right is both complicated and time consuming. Many occasions will not permit the time and many individuals may not even be capable of the calculations.

4. Since the greatest good for the greatest number is described in aggregate terms, that good may be achieved under conditions that are harmful to some, so long as that harm is balanced by a greater good.

5. The theory fails to acknowledge any individual rights that could not be violated for the sake of the greatest good. Indeed, even the murder of an innocent person would seem to be condoned if it served the greater number. As John Rawls argues, it ignores the ‘distinctness of persons’ and the principle that the ‘right is prior to the good’.

In response to objections such as these, some proponents of utilitarianism have proposed a modification of the theory. Let us call the original form:

Act Utilitarianism– each individual action is to be evaluated directly in terms of the utility principle.

The proposed improvement is:

Rule Utilitarianism– behavior is evaluated by rules that, if universally followed would lead to the greatest good for the greatest number.

Thus, rule utilitarianism could address the fourth and fifth objections mentioned above by using the utility principle to justify rules establishing human rights and the universal prohibition of certain harms. But it may not be so simple. If the justification of the rule is found in the utility principle, what about the case where violating the rule leads to the achievement of the greatest good for the greatest number? If the theory is to be truly utilitarian, it must maintain the utility principle as its ultimate standard, and no intermediate rules or rights could stand against it.

A system of rules would help with the other objections, however, even if they only serve as convenient advice. They would codify the wisdom of past experience, and preclude the need for constant calculation. Indeed, some writers propose that the theory of utilitarianism, although it correctly describes the ultimate sanction of moral principles, is best preserved for the minority that are capable of applying it. The greatest good is best served by the masses when they follow rules out of duty and leave the difficult and subtle calculations to those in authority. This attitude, along with the attempted qualitative distinctions among pleasures, and utilitarianism’s tendency to condone inequitable distributions or even the abuse of minorities has led to frequent charges of elitism. It should be noted that this was far from Mill’s purpose. John Stuart Mill was a leader in the fight against the African slave trade, and a pioneer for women’s rights and individual liberties. It is a curious fact that his own theory of ethics fails to serve those ideals any better than it does.

TO ONE AND ALL

Posted in Uncategorized by drsivalaw on December 21, 2009

May the Blessings of Christmas and the Sprit of Goodwill to all Mankind burn brightly in your hearts.

AND

 

AND

 

TO ONE AND ALL

GOD BLESS EVERYONE

Dr Siva Ananthan, Sharon

Kryshana, Jacelyn & Akash

 

THE CASE OF THE SPELUNCEAN EXPLORERS BY LON L. FULLER IN THE SUPREME COURT OF NEWGARTH, 4300

Posted in Uncategorized by drsivalaw on December 21, 2009

The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court of General Instances of the County of Stowfield. They bring a petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice.

TRUEPENNY, C. J.    The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave.

When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot.

The task of rescue proved one of overwhelming difficulty. It was necessary to  supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of  these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave.

Since it was known that the explorers had carried with them only scant
provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before access to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours. When communication was re-established the men asked to speak again with the physicians. The chairman of the physicians’ committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians’ chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question.

Whetmore then asked if there were among the party a judge or other official of the government who would answer this question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do so. Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers’ wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.

From the testimony of the defendants, which was accepted by the jury, it
appears that it was Whetmore who first proposed that they might find the
nutriment without which survival was impossible in the flesh of one of their
own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice.

Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore’s turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions.

After the rescue of the defendants, and after they had completed a stay in a
hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.

It seems to me that in dealing with this extraordinary case the jury and the
trial judge followed a course that was not only fair and wise, but the only
course that was open to them under the law. The language of our statute is well known: “Whoever shall willfully take the life of another shall be punished by death.” N. C. S. A. (N. S.) § 12-A. This statute permits of no exception
applicable to this case, however our sympathies may incline us to make
allowance for the tragic situation in which these men found themselves.

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the
communications they have addressed to the Chief Executive. There is every
reason to believe that these requests for clemency will be heeded, coming as
they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

FOSTER, J.   I am shocked that the Chief Justice, in an effort to escape the
embarrassments of this tragic case, should have adopted, and should have
proposed to his colleagues, an expedient at once so sordid and so obvious. I
believe something more is on trial in this case than the fate of these
unfortunate explorers; that is the law of our Commonwealth. If this Court
declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.

For myself, I do not believe that our law compels the monstrous conclusion that these men are murderers. I believe, on the contrary, that it declares them to be innocent of any crime. I rest this conclusion on two independent grounds, either of which is of itself sufficient to justify the acquittal of these
defendants.

The first of these grounds rests on a premise that may arouse opposition until it has been examined candidly. I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that the case is governed instead by what ancient writers in Europe and America called “the law of nature.”

This conclusion rests on the proposition that our positive law is predicated on the possibility of men’s coexistence in society. When a situation arises in
which the coexistence of men becomes impossible, then a condition that
underlies all of our precedents and statutes has ceased to exist. When that
condition disappears, then it is my opinion that the force of our positive law
disappears with it. We are not accustomed to applying the maxim cessante
ratione legis, cessat et ipsa lex to the whole of our enacted law, but I
believe that this is a case where the maxim should be so applied.

The proposition that all positive law is based on the possibility of men’s
coexistence has a strange sound, not because the truth it contains is strange,
but simply because it is a truth so obvious and pervasive that we seldom have occasion to give words to it. Like the air we breathe, it so pervades our
environment that we forget that it exists until we are suddenly deprived of it. Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men’s coexistence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force.

Had the tragic events of this case taken place a mile beyond the territorial
limits of our Commonwealth, no one would pretend that our law was applicable to them. We recognize that jurisdiction rests on a territorial basis. The grounds of this principle are by no means obvious and are seldom examined. I take it that this principle is supported by an assumption that it is feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth’s surface. The premise that men shall coexist in a group underlies, then, the territorial principle, as it does all of law. Now I contend that a case may be removed morally from the force of a legal order, as well as geographically. If we look to the purposes of law and government, and to the premises underlying ourpositive law, these men when they made their fateful decision were as remote from our legal order as if they had been a thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our courts and writ-servers by a solid curtain of rock that could be removed only after the most extraordinary expenditures of time and effort.

I conclude, therefore, that at the time Roger Whetmore’s life was ended by
these defendants, they were, to use the quaint language of nineteenth-century writers, not in a “state of civil society” but in a “state of nature.” This has the consequence that the law applicable to them is not the enacted and
established law of this Commonwealth, but the law derived from those principles that were appropriate to their condition. I have no hesitancy in saying that under those principles they were guiltless of any crime.

What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself. Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate men’s relations with one another, it was necessary for them to draw, as it were, a new charter of government appropriate to the situation in which they found themselves.

It has from antiquity been recognized that the most basic principle of law or
government is to be found in the notion of contract or agreement. Ancient
thinkers, especially during the period from 1600 to 1900, used to base
government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory. Moralists replied that, if the compact was a fiction from a historical point of view, the notion of compact or agreement furnished the only ethical justification on which the powers of government, which include that of taking life, could be rested. The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible.

Fortunately, our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of historical truth that our government was founded upon a contract or free accord of men. The archeological proof is conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original charter.

If, therefore, our hangmen have the power to end men’s lives, if our sheriffs
have the power to put delinquent tenants in the street, if our police have the
power to incarcerate the inebriated reveler, these powers find their moral
justification in that original compact of our forefathers. If we can find no
higher source for our legal order, what higher source should we expect these
starving unfortunates to find for the order they adopted for themselves?

I believe that the line of argument I have just expounded permits of no
rational answer. I realize that it will probably be received with a certain
discomfort by many who read this opinion, who will be inclined to suspect that some hidden sophistry must underlie a demonstration that leads to so many unfamiliar conclusions. The source of this discomfort is, however, easy to identify. The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances. There is much that is fictitious about this conception even when it is applied to the ordinary relations of society. We have an illustration of this truth in the very case before us. Ten workmen were killed in the process of removing the rocks from the opening to the cave. Did not the engineers and government officials who directed the rescue effort know that the operations they were undertaking were dangerous and involved a serious risk to the lives of the workmen executing them? If it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one?

Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate with some precision how many deaths the construction of them will require; statisticians can tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss. If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and their companion Whetmore found themselves?

This concludes the exposition of the first ground of my decision. My second
ground proceeds by rejecting hypothetically all the premises on which I have so far proceeded. I concede for purposes of argument that I am wrong in saying that the situation of these men removed them from the effect of our positive law, and I assume that the Consolidated Statutes have the power to penetrate five hundred feet of rock and to impose themselves upon these starving men huddled in their underground prison.

Now it is, of course, perfectly clear that these men did an act that violates
the literal wording of the statute which declares that he who “shall willfully
take the life of another” is a murderer. But one of the most ancient bits of
legal wisdom is the saying that a man may break the letter of the law without
breaking the law itself. Every proposition of positive law, whether contained
in a statute or a judicial precedent, is to be interpreted reasonably, in the
light of its evident purpose. This is a truth so elementary that it is hardly
necessary to expatiate on it. Illustrations of its application are numberless
and are to be found in every branch of the law. In Commonwealth v. Staymore the defendant was convicted under a statute making it a crime to leave one’s car parked in certain areas for a period longer than two hours. The defendant had attempted to remove his car, but was prevented from doing so because the streets were obstructed by a political demonstration in which he took no part and which he had no reason to anticipate. His conviction was set aside by this Court, although his case fell squarely within the wording of the statute. Again, in Fehler v. Neegas there was before this Court for construction a statute in which the word “not” had plainly been transposed from its intended position in the final and most crucial section of the act. This transposition was contained in all the successive drafts of the act, where it was apparently overlooked by the draftsmen and sponsors of the legislation. No one was able to prove how the error came about, yet it was apparent that, taking account of the contents of the statute as a whole, an error had been made, since a literal reading of the final clause rendered it inconsistent with everything that had gone before and with the object of the enactment as stated in its preamble. This Court refused to accept a literal interpretation of the statute, and in effect rectified its language by reading the word “not” into the place where it was evidently intended to go.

The statute before us for interpretation has never been applied literally.
Centuries ago it was established that a killing in self-defense is excused.
There is nothing in the wording of the statute that suggests this exception.
Various attempts have been made to reconcile the legal treatment of
self-defense with the words of the statute, but in my opinion these are all
merely ingenious sophistries. The truth is that the exception in favor of
self-defense cannot be reconciled with the words of the statute, but only with its purpose.

The true reconciliation of the excuse of self-defense with the statute making
it a crime to kill another is to be found in the following line of reasoning.
One of the principal objects underlying any criminal legislation is that of
deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defense.

When the rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the same reasoning is applicable to the case at bar. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same considerations that were applied by our predecessors in office centuries ago to the case of self-defense. There are those who raise the cry of judicial usurpation whenever a court, after analyzing the purpose of a statute, gives to its words a meaning that is not at once apparent to the casual reader who has not studied the statute closely or examined the objectives it seeks to attain. Let me say emphatically that I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth and that it exercises its powers in subservience to the duly expressed will of the Chamber of Representatives. The line of reasoning I have applied above raises no question of fidelity to enacted law, though it may possibly raise a question of the distinction between intelligent and unintelligent fidelity. No superior wants a servant who lacks the capacity to read between the lines. The stupidest housemaid knows that when she is told “to peel the soup and skim the potatoes” her mistress does not mean what she says. She also knows that when her master tells her to “drop everything and come running” he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence from the judiciary. The correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective.

I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside.

TATTING, J.   In the discharge of my duties as a justice of this Court, I am
usually able to dissociate the emotional and intellectual sides of my
reactions, and to decide the case before me entirely on the basis of the
latter. In passing on this tragic case I find that my usual resources fail me.
On the emotional side I find myself torn between sympathy for these men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me.

As I analyze the opinion just rendered by my brother Foster, I find that it is
shot through with contradictions and fallacies. Let us begin with his first
proposition: these men were not subject to our law because they were not in a “state of civil society” but in a “state of nature.” I am not clear why this is
so, whether it is because of the thickness of the rock that imprisoned them, or because they were hungry, or because they had set up a “new charter of
government” by which the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men passed from the jurisdiction of our law to that of “the law of nature,” at what moment did this occur? Was it when the entrance to the cave was blocked, or when the threat of starvation reached a certain undefined degree of intensity, or when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties. Suppose, for example, one of these men had had his twenty-first birthday while he was imprisoned within the mountain. On what date would we have to consider that he had attained his majority – when he reached the age of twenty-one, at which time he was, by hypothesis, removed from the effects of our law, or only when he was released from the cave and became again subject to what my brother calls our “positive law”? These difficulties may seem fanciful, yet they only serve to reveal the fanciful nature of the doctrine that is capable of giving rise to them.

But it is not necessary to explore these niceties further to demonstrate the
absurdity of my brother’s position. Mr. Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered to administer the laws of that Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If these men were indeed under the law of nature, whence comes our authority to expound and apply that law? Certainly we are not in a state of nature.

Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case. What a topsy-turvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provisions of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract by violence – for though my brother passes over in convenient silence the effect of Whetmore’s withdrawal, this is the necessary implication of his argument.

The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had concealed upon his person a revolver, and that when he saw the defendants about to slaughter him he had shot them to death in order to save his own life. My brother’s reasoning applied to these facts would make Whetmore out to be a murderer, since the excuse of self-defense would have to be denied to him. If his assailants were acting rightfully in seeking to bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck. All of these considerations make it impossible for me to accept the first part of my brother’s argument. I can neither accept his notion that these men were under a code of nature which this Court was bound to apply to them, nor can I accept the odious and perverted rules that he would read into that code. I come now to the second part of my brother’s opinion, in which he seeks to show that the defendants did not violate the provisions of N. C. S. A. (N. S.) § 12-A. Here the way, instead of being clear, becomes for me misty and ambiguous, though my brother seems unaware of the difficulties that inhere in his demonstrations.

The gist of my brother’s argument may be stated in the following terms: No
statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statute is to deter. The
application of the statute making it a crime to kill another to the peculiar
facts of this case would contradict this purpose, for it is impossible to
believe that the contents of the criminal code could operate in a deterrent
manner on men faced with the alternative of life or death. The reasoning by
which this exception is read into the statute is, my brother observes, the same as that which is applied in order to provide the excuse of self-defense.

On the face of things this demonstration seems very convincing indeed. My
brother’s interpretation of the rationale of the excuse of self-defense is in
fact supported by a decision of this court, Commonwealth v. Parry, a precedent I happened to encounter in my research on this case. Though Commonwealth v. Parry seems generally to have been overlooked in the texts and subsequent decisions, it supports unambiguously the interpretation my brother has put upon the excuse of self-defense.

Now let me outline briefly, however, the perplexities that assail me when I
examine my brother’s demonstration more closely. It is true that a statute
should be applied in the light of its purpose, and that one of the purposes of
criminal legislation is recognized to be deterrence. The difficulty is that
other purposes are also ascribed to the law of crimes. It has been said that
one of its objects is to provide an orderly outlet for the instinctive human
demand for retribution. Commonwealth v. Scape. It has also been said that its object is the rehabilitation of the wrongdoer. Commonwealth v. Makeover. Other theories have been propounded. Assuming that we must interpret a statute in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed?

A similar difficulty is presented by the fact that although there is authority
for my brother’s interpretation of the excuse of self-defense, there is other
authority which assigns to that excuse a different rationale. Indeed, until I
happened on Commonwealth v. Parry I had never heard of the explanation given by my brother. The taught doctrine of our law schools, memorized by generations of law students, runs in the following terms: The statute concerning murder requires a “willful” act. The man who acts to repel an aggressive threat to his own life does not act “willfully,” but in response to an impulse deeply ingrained in human nature. I suspect that there is hardly a lawyer in this Commonwealth who is not familiar with this line of reasoning, especially since the point is a great favorite of the bar examiners.

Now the familiar explanation for the excuse of self-defense just expounded
obviously cannot be applied by analogy to the facts of this case. These men
acted not only “willfully” but with great deliberation and after hours of
discussing what they should do. Again we encounter a forked path, with one line of reasoning leading us in one direction and another in a direction that is
exactly the opposite. This perplexity is in this case compounded, as it were,
for we have to set off one explanation, incorporated in a virtually unknown
precedent of this Court, against another explanation, which forms a part of the taught legal tradition of our law schools, but which, so far as I know, has
never been adopted in any judicial decision.

I recognize the relevance of the precedents cited by my brother concerning the displaced “not” and the defendant who parked overtime. But what are we to do with one of the landmarks of our jurisprudence, which again my brother passes over in silence? This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court refused to accept this defense. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother’s demonstrations would compel us to overrule Commonwealth v. Valjean, and many other precedents that have been built on that case.

Again, I have difficulty in saying that no deterrent effect whatever could be
attributed to a decision that these men were guilty of murder. The stigma of
the word “murderer” is such that it is quite likely, I believe, that if these
men had known that their act was deemed by the law to be murder they would have waited for a few days at least before carrying out their plan. During that time some unexpected relief might have come. I realize that this observation only reduces the distinction to a matter of degree, and does not destroy it altogether. It is certainly true that the element of deterrence would be less in this case than is normally involved in the application of the criminal law.

There is still a further difficulty in my brother Foster’s proposal to read an
exception into the statute to favor this case, though again a difficulty not
even intimated in his opinion. What shall be the scope of this exception? Here the men cast lots and the victim was himself originally a party to the
agreement. What would we have to decide if Whetmore had refused from the
beginning to participate in the plan? Would a majority be permitted to overrule him? Or, suppose that no plan were adopted at all and the others simply conspired to bring about Whetmore’s death, justifying their act by saying that he was in the weakest condition. Or again, that a plan of selection was followed but one based on a different justification than the one adopted here, as if the others were atheists and insisted that Whetmore should die because he was the only one who believed in an afterlife. These illustrations could be multiplied, but enough have been suggested to reveal what a quagmire of hidden difficulties my brother’s reasoning contains.

Of course I realize on reflection that I may be concerning myself with a
problem that will never arise, since it is unlikely that any group of men will
ever again be brought to commit the dread act that was involved here. Yet, on still further reflection, even if we are certain that no similar case will
arise again, do not the illustrations I have given show the lack of any
coherent and rational principle in the rule my brother proposes? Should not the soundness of a principle be tested by the conclusions it entails, without
reference to the accidents of later litigational history? Still, if this is so,
why is it that we of this Court so often discuss the question whether we are
likely to have later occasion to apply a principle urged for the solution of
the case before us? Is this a situation where a line of reasoning not
originally proper has become sanctioned by precedent, so that we are permitted to apply it and may even be under an obligation to do so?

The more I examine this case and think about it, the more deeply I become
involved. My mind becomes entangled in the meshes of the very nets I throw out for my own rescue. I find that almost every consideration that bears on the decision of the case is counterbalanced by an opposing consideration leading in the opposite direction. My brother Foster has not furnished to me, nor can I discover for myself, any formula c apable of resolving the equivocations that beset me on all sides.

I have given this case the best thought of which I am capable. I have scarcely slept since it was argued before us. When I feel myself inclined to accept the view of my brother Foster, I am repelled by a feeling that his arguments are  intellectually unsound and approach mere rationalization. On the other hand, when I incline toward upholding the conviction, I am struck by the absurdity of directing that these men be put to death when their lives have been saved at the cost of the lives of ten heroic workmen. It is to me a matter of regret that the Prosecutor saw fit to ask for an indictment for murder. If we had a provision in our statutes making it a crime to eat human flesh, that would have been a more appropriate charge. If no other charge suited to the facts of this case could be brought against the defendants, it would have been wiser, I think, not to have indicted them at all. Unfortunately, however, the men have been indicted and tried, and we have therefore been drawn into this unfortunate affair.

Since I have been wholly unable to resolve the doubts that beset me about the law of this case, I am with regret announcing a step that is, I believe,
unprecedented in the history of this tribunal. I declare my withdrawal from the decision of this case.

KEEN, J.   I should like to begin by setting to one side two questions which
are not before this Court.

The first of these is whether executive clemency should be extended to these
defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives
instructions to the Chief Executive as to what he should do in this case and
suggests that some impropriety will attach if these instructions are not
heeded. This is a confusion of governmental functions – a confusion of which
the judiciary should be the last to be guilty. I wish to state that if I were
the Chief Executive I would go farther in the direction of clemency than the
pleas addressed to him propose. I would pardon these men altogether, since I believe that they have already suffered enough to pay for any offense they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, nor to take into account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this Commonwealth.

The second question that I wish to put to one side is that of deciding whether
what these men did was “right” or “wrong,” “wicked” or “good.” That is also a
question that is irrelevant to the discharge of my office as a judge sworn to
apply, not my conceptions of morality, but the law of the land. In putting this question to one side I think I can also safely dismiss without comment the first and more poetic portion of my brother Foster’s opinion. The element of fantasy contained in the arguments developed there has been sufficiently revealed in my brother Tatting’s somewhat solemn attempt to take those arguments seriously.

The sole question before us for decision is whether these defendants did,
within the meaning of N. C. S. A. (N. S.) § 12-A, willfully take the life of
Roger Whetmore. The exact language of the statute is as follows: “Whoever shall  willfully take the life of another shall be punished by death.” Now I should suppose that any candid observer, content to extract from these words their natural meaning, would concede at once that these defendants did “willfully take the life” of Roger Whetmore.

Whence arise all the difficulties of the case, then, and the necessity for so
many pages of discussion about what ought to be so obvious? The difficulties, in whatever tortured form they may present themselves, all trace back to a single source, and that is a failure to distinguish the legal from the moral aspects of this case. To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth.

Now, of course, my brother Foster does not admit that he is actuated by a
personal dislike of the written law. Instead he develops a familiar line of
argument according to which the court may disregard the express language of a statute when something not contained in the statute itself, called its
“purpose,” can be employed to justify the result the court considers proper.
Because this is an old issue between myself and my colleague, I should like,
before discussing his particular application of the argument to the facts of
this case, to say something about the historical background of this issue and
its implications for law and government generally.

There was a time in this Commonwealth when judges did in fact legislate very freely, and all of us know that during that period some of our statutes were rather thoroughly made over by the judiciary. That was a time when the accepted  principles of political science did not designate with any certainty the rank and function of the various arms of the state. We all know the tragic issue of that uncertainty in the brief civil war that arose out of the conflict between the judiciary, on the one hand, and the executive and the legislature, on the other. There is no need to recount here the factors that contributed to that unseemly struggle for power, though they included the unrepresentative character of the Chamber, resulting from a division of the country into election districts that no longer accorded with the actual distribution of the population, and the forceful personality and wide popular following of the then Chief Justice. It is enough to observe that those days are behind us, and that in place of the uncertainty that then reigned we now have a clear-cut principle, which is the supremacy of the legislative branch of our government. From that principle flows the obligation of the judiciary to enforce faithfully the written law, and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice. I am not concerned with the question whether the principle that forbids the judicial revision of statutes is right or wrong, desirable or undesirable; I observe merely that this principle has become a tacit premise underlying the whole of the legal and governmental order I am sworn to administer.

Yet though the principle of the supremacy of the legislature has been accepted in theory for centuries, such is the tenacity of professional tradition and the force of fixed habits of thought that many of the judiciary have still not accommodated themselves to the restricted role which the new order imposes on them. My brother Foster is one of that group; his way of dealing with statutes is exactly that of a judge living in the 3900’s.

We are all familiar with the process by which the judicial reform of disfavored legislative enactments is accomplished. Anyone who has followed the written opinions of Mr. Justice Foster will have had an opportunity to see it at work in every branch of the law. I am personally so familiar with the process that in the event of my brother’s incapacity I am sure I could write a satisfactory opinion for him without any prompting whatever, beyond being informed whether he liked the effect of the terms of the statute as applied to the case before him.

The process of judicial reform requires three steps. The first of these is to
divine some single “purpose” which the statute serves. This is done although
not one statute in a hundred has any such single purpose, and although the
objectives of nearly every statute are differently interpreted by the different
classes of its sponsors. The second step is to discover that a mythical being
called “the legislator,” in the pursuit of this imagined “purpose,” overlooked
something or left some gap or imperfection in his work. Then comes the final
and most refreshing part of the task, which is, of course, to fill in the blank
thus created. Quod erat faciendum.

My brother Foster’s penchant for finding holes in statutes reminds one of the
story told by an ancient author about the man who ate a pair of shoes. Asked
how he liked them, he replied that the part he liked best was the holes. That
is the way my brother feels about statutes; the more holes they have in them
the better he likes them. In short, he doesn’t like statutes.

One could not wish for a better case to illustrate the specious nature of this
gap-filling process than the one before us. My brother thinks he knows exactly what was sought when men made murder a crime, and that was something he calls “deterrence.” My brother Tatting has already shown how much is passed over in that interpretation. But I think the trouble goes deeper. I doubt very much whether our statute making murder a crime really has a “purpose” in any ordinary sense of the term. Primarily, such a statute reflects a deeply-felt human conviction that murder is wrong and that something should be done to the man who commits it. If we were forced to be more articulate about the matter, we would probably take refuge in the more sophisticated theories of the criminologists, which, of course, were certainly not in the minds of those who drafted our statute. We might also observe that men will do their own work more effectively and live happier lives if they are protected against the threat of violent assault. Bearing in mind that the victims of murders are often unpleasant people, we might add some suggestion that the matter of disposing of undesirables is not a function suited to private enterprise, but should be a state monopoly. All of which reminds me of the attorney who once argued before us that a statute licensing physicians was a good thing because it would lead to lower life insurance rates by lifting the level of general health. There is such a thing as overexplaining the obvious.

If we do not know the purpose of § 12-A, how can we possibly say there is a
“gap” in it? How can we know what its draftsmen thought about the question of  killing men in order to eat them? My brother Tatting has revealed an
understandable, though perhaps slightly exaggerated revulsion to cannibalism. How do we know that his remote ancestors did not feel the same revulsion to an even higher degree? Anthropologists say that the dread felt for a forbidden act may be increased by the fact that the conditions of a tribe’s life create special temptations toward it, as incest is most severely condemned among those whose village relations make it most likely to occur. Certainly the period following the Great Spiral was one that had implicit in it temptations to anthropophagy. Perhaps it was for that very reason that our ancestors expressed their prohibition in so broad and unqualified a form. All of this is conjecture, of course, but it remains abundantly clear that neither I nor my brother Foster knows what the “purpose” of § 12-A is.

Considerations similar to those I have just outlined are also applicable to the
exception in favor of self-defense, which plays so large a role in the
reasoning of my brothers Foster and Tatting. It is of course true that in
Commonwealth v. Parry an obiter dictum justified this exception on the
assumption that the purpose of criminal legislation is to deter. It may well
also be true that generations of law students have been taught that the true
explanation of the exception lies in the fact that a man who acts in
self-defense does not act “willfully,” and that the same students have passed
their bar examinations by repeating what their professors told them. These last observations I could dismiss, of course, as irrelevant for the simple reason that professors and bar examiners have not as yet any commission to make our laws for us. But again the real trouble lies deeper. As in dealing with the statute, so in dealing with the exception, the question is not the conjectural purpose of the rule, but its scope. Now the scope of the exception in favor of self-defense as it has been applied by this Court is plain: it applies to cases of resisting an aggressive threat to the party’s own life. It is therefore too clear for argument that this case does not fall within the scope of the exception, since it is plain that Whetmore made no threat against the lives of these defendants.

The essential shabbiness of my brother Foster’s attempt to cloak his remaking of the written law with an air of legitimacy comes tragically to the surface in my brother Tatting’s opinion. In that opinion Justice Tatting struggles manfully to combine  his colleague’s loose moralisms with his own sense of fidelity to the written law. The issue of this struggle could only be that which occurred, a complete default in the discharge of the judicial function. You simply cannot apply a statute as it is written and remake it to meet your own wishes at the same time.

Now I know that the line of reasoning I have developed in this opinion will not be acceptable to those who look only to the immediate effects of a decision and ignore the long-run implications of an assumption by the judiciary of a power of dispensation. A hard decision is never a popular decision. Judges have been celebrated in literature for their sly prowess in devising some quibble by which a litigant could be deprived of his rights where the public thought it was wrong for him to assert those rights. But I believe that judicial dispensation does more harm in the long run than hard decisions. Hard cases may even have a certain moral value by bringing home to the people their own responsibilities toward the law that is ultimately their creation, and by reminding them that there is no principle of personal grace that can relieve the mistakes of their representatives.

Indeed, I will go farther and say that not only are the principles I have been
expounding those which are soundest for our present conditions, but that we would have inherited a better legal system from our forefathers if those
principles had been observed from the beginning. For example, with respect to the excuse of self-defense, if our courts had stood steadfast on the language of the statute the result would undoubtedly have been a legislative revision of it. Such a revision would have drawn on the assistance of natural philosophers and psychologists, and the resulting regulation of the matter would have had an understandable and rational basis, instead of the hodgepodge of verbalisms and metaphysical distinctions that have emerged from the judicial and professorial treatment.

These concluding remarks are, of course, beyond any duties that I have to
discharge with relation to this case, but I include them here because I feel
deeply that my colleagues are insufficiently aware of the dangers implicit in
the conceptions of the judicial office advocated by my brother Foster.

I conclude that the conviction should be affirmed.

HANDY, J.   I have listened with amazement to the tortured ratiocinations to
which this simple case has given rise. I never cease to wonder at my
colleagues’ ability to throw an obscuring curtain of legalisms about every
issue presented to them for decision. We have heard this afternoon learned
disquisitions on the distinction between positive law and the law of nature,
the language of the statute and the purpose of the statute, judicial functions
and executive functions, judicial legislation and legislative legislation. My
only disappointment was that someone did not raise the question of the legal
nature of the bargain struck in the cave – whether it was unilateral or
bilateral, and whether Whetmore could not be considered as having revoked an offer prior to action taken thereunder.

What have all these things to do with the case? The problem before us is what
we, as officers of the government, ought to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract
theory, but of human realities. When the case is approached in this light, it
becomes, I think, one of the easiest to decide that has ever been argued before this Court.

Before stating my own conclusions about the merits of the case, I should like
to discuss briefly some of the more fundamental issues involved – issues on
which my colleagues and I have been divided ever since I have been on the
bench.

I have never been able to make my brothers see that government is a human
affair, and that men are ruled, not by words on paper or by abstract theories, but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking.

Of all branches of the government, the judiciary is the most likely to lose its
contact with the common man. The reasons for this are, of course, fairly
obvious. Where the masses react to a situation in terms of a few salient
features, we pick into little pieces every situation presented to us. Lawyers
are hired by both sides to analyze and dissect. Judges and attorneys vie with
one another to see who can discover the greatest number of difficulties and
distinctions in a single set of facts. Each side tries to find cases, real or
imagined, that will embarrass the demonstrations of the other side. To escape this embarrassment, still further distinctions are invented and imported into the situation. When a set of facts has been subjected to this kind of treatment for a sufficient time, all the life and juice have gone out of it and we have left a handful of dust.

Now I realize that wherever you have rules and abstract principles lawyers are going to be able to make distinctions. To some extent the sort of thing I have been describing is a necessary evil attaching to any formal regulation of human affairs. But I think that the area which really stands in need of such
regulation is greatly overestimated. There are, of course, a few fundamental
rules of the game that must be accepted if the game is to go on at all. I would
include among these the rules relating to the conduct of elections, the
appointment of public officials, and the term during which an office is held.
Here some restraint on discretion and dispensation, some adherence to form, some scruple for what does and what does not fall within the rule, is, I
concede, essential. Perhaps the area of basic principle should be expanded to include certain other rules, such as those designed to preserve the free
civilmoign system.

But outside of these fields I believe that all government officials, including
judges, will do their jobs best if they treat forms and abstract concepts as
instruments. We should take as our model, I think, the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result.

The most obvious advantage of this method of government is that it permits us to go about our daily tasks with efficiency and common sense. My adherence to this philosophy has, however, deeper roots. I believe that it is only with the insight this philosophy gives that we can preserve the flexibility essential if we are to keep our actions in reasonable accord with the sentiments of those subject to our rule. More governments have been wrecked, and more human misery caused, by the lack of this accord between ruler and ruled than by any other factor that can be discerned in history. Once drive a sufficient wedge between the mass of people and those who direct their legal, political, and economic life, and our society is ruined. Then neither Foster’s law of nature nor Keen’s fidelity to written law will avail us anything.

Now when these conceptions are applied to the case before us, its decision
becomes, as I have said, perfectly easy. In order to demonstrate this I shall
have to introduce certain realities that my brothers in their coy decorum have seen fit to pass over in silence, although they are just as acutely aware of them as I am.

The first of these is that this case has aroused an enormous public interest,
both here and abroad. Almost every newspaper and magazine has carried articles about it; columnists have shared with their readers confidential information as to the next governmental move; hundreds of letters-to-the-editor have been printed. One of the great newspaper chains made a poll of public opinion on the question, “What do you think the Supreme Court should do with the Speluncean explorers?” About ninety per cent expressed a belief that the defendants should be pardoned or let off with a kind of token punishment. It is perfectly clear, then, how the public feels about the case. We could have known this without the poll, of course, on the basis of common sense, or even by observing that on this Court there are apparently four-and-a-half men, or ninety per cent, who share the common opinion.

This makes it obvious, not only what we should do, but what we must do if we are to preserve between ourselves and public opinion a reasonable and decent accord. Declaring these men innocent need not involve us in any undignified quibble or trick. No principle of statutory construction is required that is not consistent with the past practices of this Court. Certainly no layman would think that in letting these men off we had stretched the statute any more than our ancestors did when they created the excuse of self-defense. If a more detailed demonstration of the method of reconciling our decision with the statute is required, I should be content to rest on the arguments developed in the second and less visionary part of my brother Foster’s opinion.

Now I know that my brothers will be horrified by my suggestion that this Court should take account of public opinion. They will tell you that public opinion is emotional and capricious, that it is based on half-truths and listens to witnesses who are not subject to cross-examination. They will tell you that the law surrounds the trial of a case like this with elaborate safeguards, designed to insure that the truth will be known and that every rational consideration bearing on the issues of the case has been taken into account. They will warn you that all of these safeguards go for naught if a mass opinion formed outside this framework is allowed to have any influence on our decision.

But let us look candidly at some of the realities of the administration of our
criminal law. When a man is accused of crime, there are, speaking generally,
four ways in which he may escape punishment. One of these is a determination by a judge that under the applicable law he has committed no crime. This is, of course, a determination that takes place in a rather formal and abstract atmosphere. But look at the other three ways in which he may escape punishment. These are: (1) a decision by the Prosecutor not to ask for an indictment; (2) an acquittal by the jury; (3) a pardon or commutation of sentence by the executive. Can anyone pretend that these decisions are held within a rigid and formal framework of rules that prevents factual error, excludes emotional and personal factors, and guarantees that all the forms of the law will be observed?

In the case of the jury we do, to be sure, attempt to cabin their deliberations
within the area of the legally relevant, but there is no need to deceive
ourselves into believing that this attempt is really successful. In the normal
course of events the case now before us would have gone on all of its issues
directly to the jury. Had this occurred we can be confident that there would
have been an acquittal or at least a division that would have prevented a
conviction. If the jury had been instructed that the men’s hunger and their
agreement were no defense to the charge of murder, their verdict would in all likelihood have ignored this instruction and would have involved a good deal more twisting of the letter of the law than any that is likely to tempt us. Of course the only reason that didn’t occur in this case was the fortuitous
circumstance that the foreman of the jury happened to be a lawyer. His learning enabled him to devise a form of words that would allow the jury to dodge its usual responsibilities.

My brother Tatting expresses annoyance that the Prosecutor did not, in effect, decide the case for him by not asking for an indictment. Strict as he is
himself in complying with the demands of legal theory, he is quite content to
have the fate of these men decided out of court by the Prosecutor on the basis of common sense. The Chief Justice, on the other hand, wants the application of common sense postponed to the very end, though like Tatting, he wants no personal part in it.

This brings me to the concluding portion of my remarks, which has to do with executive clemency. Before discussing that topic directly, I want to make a related observation about the poll of public opinion. As I have said, ninety per cent of the people wanted the Supreme Court to let the men off entirely or with a more or less nominal punishment. The ten per cent constituted a very oddly assorted group, with the most curious and divergent opinions. One of our university experts has made a study of this group and has found that its members fall into certain patterns. A substantial portion of them are subscribers to “crank” newspapers of limited circulation that gave their readers a distorted version of the facts of the case. Some thought that “Speluncean” means “cannibal” and that anthropophagy is a tenet of the Society. But the point I want to make, however, is this: although almost every conceivable variety and shade of opinion was represented in this group, there was, so far as I know, not one of them, nor a single member of the majority of ninety per cent, who said, “I think it would be a fine thing to have the courts sentence these men to be hanged, and then to have another branch of the government come along and pardon them.” Yet this is a solution that has more or less dominated our discussions and which our Chief Justice proposes as a way by which we can avoid doing an injustice and at the same time preserve respect for law. He can be assured that if he is preserving anybody’s morale, it is his own, and not the public’s, which knows nothing of his distinctions. I mention this matter because I wish to emphasize once more the danger that we may get
lost in the patterns of our own thought and forget that these patterns often
cast not the slightest shadow on the outside world.

I come now to the most crucial fact in this case, a fact known to all of us on
this Court, though one that my brothers have seen fit to keep under the cover of their judicial robes. This is the frightening likelihood that if the issue
is left to him, the Chief Executive will refuse to pardon these men or commute their sentence. As we all know, our Chief Executive is a man now well advanced in years, of very stiff notions. Public clamor usually operates on him with thereverse of the effect intended. As I have told my brothers, it happens that my wife’s niece is an intimate friend of his secretary. I have learned in this indirect, but, I think, wholly reliable way, that he is firmly determined not to commute the sentence if these men are found to have violated the law.

No one regrets more than I the necessity for relying in so important a matter
on information that could be characterized as gossip. If I had my way this
would not happen, for I would adopt the sensible course of sitting down with
the Executive, going over the case with him, finding out what his views are,
and perhaps working out with him a common program for handling the situation. But of course my brothers would never hear of such a thing.

Their scruple about acquiring accurate information directly does not prevent them from being very perturbed about what they have learned indirectly. Their acquaintance with the facts I have just related explains why the Chief Justice, ordinarily a model of decorum, saw fit in his opinion to flap his judicial robes in the face of the Executive and threaten him with excommunication if he failed to commute the sentence. It explains, I suspect, my brother Foster’s feat of levitation by which a whole library of law books was lifted from the shoulders of these defendants. It explains also why even my legalistic brother Keen emulated Pooh-Bah in the ancient comedy by stepping to the other side of the stage to address a few remarks to the Executive “in my capacity as a private citizen.” (I may remark, incidentally, that the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers’ expense.)

I must confess that as I grow older I become more and more perplexed at men’s refusal to apply their common sense to problems of law and government, and this truly tragic case has deepened my sense of discouragement and dismay. I only wish that I could convince my brothers of the wisdom of the principles I have applied to the judicial office since I first assumed it. As a matter of fact, by a kind of sad rounding of the circle, I encountered issues like those involved here in the very first case I tried as Judge of the Court of General Instances in Fanleigh County.

A religious sect had unfrocked a minister who, they said, had gone over to the views and practices of a rival sect. The minister circulated a handbill making charges against the authorities who had expelled him. Certain lay members of the church announced a public meeting at which they proposed to explain the position of the church. The minister attended this meeting. Some said he slipped in unobserved in a disguise; his own testimony was that he had walked in openly as a member of the public. At any rate, when the speeches began he interrupted with certain questions about the affairs of the church and made some statements in defense of his own views. He was set upon by members of the audience and given a pretty thorough pommeling, receiving among other injuries a broken jaw. He brought a suit for damages against the association that sponsored the meeting and against ten named individuals who he alleged were his assailants.

When we came to the trial, the case at first seemed very complicated to me. The  attorneys raised a host of legal issues. There were nice questions on the
admissibility of evidence, and, in connection with the suit against the
association, some difficult problems turning on the question whether the
minister was a trespasser or a licensee. As a novice on the bench I was eager
to apply my law school learning and I began studying these question closely,
reading all the authorities and preparing well-documented rulings. As I studied the case I became more and more involved in its legal intricacies and I began to get into a state approaching that of my brother Tatting in this case. Suddenly, however, it dawned on me that all these perplexing issues really had nothing to do with the case, and I began examining it in the light of common sense. The case at once gained a new perspective, and I saw that the only thing for me to do was to direct a verdict for the defendants for lack of evidence.

I was led to this conclusion by the following considerations. The melee in
which the plaintiff was injured had been a very confused affair, with some
people trying to get to the center of the disturbance, while others were trying to get away from it; some striking at the plaintiff, while others were
apparently trying to protect him. It would have taken weeks to find out the
truth of the matter. I decided that nobody’s broken jaw was worth that much to the Commonwealth. (The minister’s injuries, incidentally, had meanwhile healed without disfigurement and without any impairment of normal faculties.) Furthermore, I felt very strongly that the plaintiff had to a large extent brought the thing on himself. He knew how inflamed passions were about the affair, and could easily have found another forum for the expression of his views. My decision was widely approved by the press and public opinion, neither of which could tolerate the views and practices that the expelled minister was attempting to defend.

Now, thirty years later, thanks to an ambitious Prosecutor and a legalistic
jury foreman, I am faced with a case that raises issues which are at bottom
much like those involved in that case. The world does not seem to change much, except that this time it is not a question of a judgment for five or six
hundred frelars, but of the life or death of four men who have already suffered more torment and humiliation than most of us would endure in a thousand years. I conclude that the defendants are innocent of the crime charged, and that the conviction and sentence should be set aside.

TATTING, J.   I have been asked by the Chief Justice whether, after listening
to the two opinions just rendered, I desire to reexamine the position
previously taken by me. I wish to state that after hearing these opinions I am
greatly strengthened in my conviction that I ought not to participate in the
decision of this case.

The Supreme Court being evenly divided, the conviction and sentence of the
Court of General Instances is affirmed. It is ordered that the execution of the
sentence shall occur at 6 a.m., Friday, April 2, 4300, at which time the Public Executioner is directed to proceed with all convenient dispatch to hang each of the defendants by the neck until he is dead.

POSTSCRIPT

Now that the court has spoken its judgment, the reader puzzled by the choice of date may wish to be reminded that the centuries which separate us from the year 4300 are roughly equal to those that have passed since the Age of Pericles.  There is probably no need to observe that the Speluncean Case itself is intended neither as a work of satire nor as a prediction in any ordinary sense of the term. As for the judges who make up Chief Justice Truepenny’s court, they are, of course, as mythical as the facts and precedents with which they deal. The reader who refuses to accept this view, and who seeks to trace out contemporary resemblances where none is intended or contemplated, should be warned that he is engaged in a frolic of his own, which may possibly lead him to miss whatever modest truths are contained in the opinions delivered by the Supreme Court of Newgarth. The case was constructed for the sole purpose of bringing into a common focus certain divergent philosophies of law and government. These philosophies presented men with live questions of choice in the days of Plato and Aristotle. Perhaps they will continue to do so when our era has had its say about them. If there is any element of prediction in the case, it does not go beyond a suggestion that the questions involved are among the permanent problems of the human race.