Political communities typically organize themselves by an appeal to values. Sometimes the values invoked are abstract ideas such as justice or equality. One such idea is that of law. In many important instances, practices cannot be understood except by reference to the values to which they make an implicit appeal but from which they fall short; and, equally, values cannot be understood except by reference to the practices within which they are imperfectly articulated. This general structure is captured by one strand of Platonic and Aristotelian thought, and is exhibited by the character of philosophy itself. Governance by law establishes a form of human association that is characterized by an orientation towards an idealization of its own nature. Consequently, jurisprudential reflection upon the nature of law is a necessary and fundamental feature of communities that aspire to governance by law.
Abstract Kletzer believes that, by focusing upon permission, we can derive the law’s obligatory power from the idea that the world is normatively inert. In a normatively inert world, everything is permitted. Consequently, if the law operates by permitting the use of force, it requires no deep normative underpinning: it could even invoke moral nihilism as its basis. Although ingenious, this argument faces two formidable problems. Firstly, in a normatively inert world, permissions can have causal effects but no normative effects. And secondly, the normatively inert world cannot be assumed as an uncontentious given or derived from the shortfall between what is and what ought to be, as Kletzer supposes. It requires a contestable metaphysics. Although accepting the unity of practical reason, Kletzer rejects the traditional natural law position on the grounds that law and morality are of dissimilar form, so that law cannot be grounded in morality. At the same time, he fails to offer any explanation of that difference in form. Once we have a satisfactory explanation of this difference, we see that it is precisely the difference in form between law and morality that enables us to understand law’s basis in morality. Individual moral engagement and reflection can flourish only within communities governed by law.
Rowan Cruft, Human Rights, Ownership, and the Individual Oxford: Oxford University Press, 2019 When, in the late Middle Ages, the idea of an individual right first began clearly to emerge from an older understanding of right ordering, few could have anticipated the long and problematic intellectual journey on which humanity (or at least one part of it) was thereby embarking. From their origin, individual rights have been a focus for philosophical dispute as well as political struggle. At the present day the protean character of the popular discourse of rights, combined with its cultural prominence, arouses elevated hopes but also some legitimate concerns. This fundamentally juridical idea has gradually encroached upon and partially eclipsed an older, and perhaps richer, moral vocabulary of virtue and the common good. To some this seems an impoverishment of our moral life, while to others it appears as a myth-busting liberation and empowerment of the individual.
The value of civility is grounded upon acceptance of the legitimacy of moral disagreement and the need for mutual respect and cooperation in the face of such disagreement. The distinction between rights and goods plays a fundamental role in the form of civility espoused by liberal society. Current models of constitutional rights and proportionality, in a variety of ways, erode that distinction and thereby place the liberal model of civility in jeopardy.
Readers of this journal are most likely to know Alan Brudner as the author of a great trilogy of jurisprudential studies: The Unity of the Common Law, Constitutional Goods and Punishment and Freedom (all now published by Oxford University Press). In these books, Brudner offers bold and imaginative reconstructions of private law, constitutional law and criminal law from the viewpoint of a Hegelian philosophy that Brudner takes to centre upon ideas of freedom and “dialogic community”. His readers now have the opportunity to study in detail the interpretation of Hegel that lies behind the more narrowly jurisprudential works. They will discover the mature fruits of a lifetime of scholarly reflection, establishing Brudner as a courageous and unique voice in the very large modern literature on Hegel’s political philosophy. Even by the severe standards of Hegel scholarship the book is complex and densely written. It makes considerable demands upon the reader, but it rewards careful study, as it develops a sweeping and unusual reading of perhaps the most enigmatic philosopher of modern times. Since Brudner’s interpretation defies brief summary, and is evidently grounded in a deep and extensive knowledge, I will, in this review, offer only some contextualising remarks. Although in the last half century there has been a resurgence of interest in Hegel, leading to a veritable flood of books and essays, many of those recent studies dismiss large swathes of Hegel’s work as too mired in an outlandish metaphysics to be at all credible (or even intelligible) for a present-day reader. Many authors have approached Hegel’s Philosophy of Right very selectively, treating the book as (in Axel Honneth’s words) “a quarry for brilliant individual ideas” rather than “an integral whole”. Others, such as Honneth himself, have claimed that “the basic intention and structure of the text as a whole” can be understood independently of Hegel’s metaphysical commitments. By contrast with such approaches, Brudner aims to present “the real Hegel as a thinker relevant to our age” (p. xi). Nor does he flinch from an engagement with, and even perhaps endorsement of, what might at first appear to be Hegel’s least plausible and palatable views, such as his notorious ascription of divinity to the state (a thesis upon which Brudner places particular and unusual emphasis). Given this approach, Brudner is wise to anticipate that his readers will react by saying “Hegel was a madman and you are the madman’s apprentice” (p. 357). No doubt some will react in precisely this way. But even the most puzzling and seemingly bizarre features of Hegel’s thought are not an ungrounded expression of imaginative caprice but uncompromising attempts to address philosophy’s most intractable problems. One such problem is the seemingly unavoidable embeddedness of all thought within the contingencies of history, combined with reason’s deep aspiration to escape from the conditionality of understanding which that location within history seems to entail. Reason stands in judgment upon practice but, in Hegel’s view, must itself be articulated within practice. It provides the stance from which history can be understood, yet it must also find embodiment within the traditions and languages of particular historical communities. Hegel endeavours fully to grapple with Cambridge Law Journal, 77(2), July 2018, pp. 399–438
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HILLEL STEINER'S bookAn Essay on Rights1proposes and develops an intriguing suggestion: that we should approach the discussion of justice at “the elementary particle level”. “The elementary particles of justice” Steiner tells us “arerights”:Rights are the items which are created and parcelled out by justice principles. We learn something about justice by examining the formal or characteristic features of rights. These features constrain the possible content of justice principles in much the same sense as architectural precepts must be informed by the properties of the construction materials they orchestrate.2
H.L.A. Hart's legal positivism displaces the authority of institutions and emphasizes the independence of personal moral judgment. While such a position has an obvious appeal, we should not fail to acknowledge the extent to which values are articulated within established practices. In this essay, civility and law are offered as examples of practices that embody distinctive values and can properly be understood only by reference to such values. It is suggested that legal positivism is driven by a moral metaphysic wherein abstractly conceived principles confront neutrally described facts. But values cannot, without distortion, be understood in abstraction from the practices and forms of association within which they find expression. The refusal to recognize this fact fosters moral skepticism rather than individual moral responsibility.
In his recent book, Legality, Scott Shapiro argues that laws are plans. Very similar views have already been developed by Finnis. But Shapiro’s version does nothing to accommodate the status of a legal order as a form of association within which force may ordinarily be employed only against those who have violated the law. Shapiro seeks to reconcile his legal positivism with the thesis that law necessarily has a moral aim. But his argument for this thesis contains an equivocation which is fatal to its validity.
Kramer's High Noon Get access N.E. Simmonds N.E. Simmonds Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Jurisprudence, Volume 56, Issue 1, 2011, Pages 135–150, https://doi.org/10.1093/ajj/56.1.135 Published: 01 June 2011
Whether or not we have ourselves studied the philosophy of law, most of us are familiar with the fact that philosophical debate concerning the nature of law has been around since Ancient Greece. In much the same way, there have been long-running philosophical debates concerning justice, truth, reason and a host of other issues. The debate concerning law is in some respects different, however. For it is not too difficult to see how the nature of justice or truth or reason could give rise to a specifically philosophical debate, while it is far from clear why the nature of law should generate any philosophical puzzlement at all.
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Corrective and Distributive Justice: From Aristotle to Modern Times. By Izhak Englard. [Oxford: Oxford University Press. 2009. xiii, 224 and (Table of Cases and Index) 12 pp. Hardback £52.00. ISBN 9780195380071.] - Volume 68 Issue 3
The essay defends the thesis that law has an inherently moral aspect. To the extent that law governs, one enjoys a degree of freedom (understood as independence from the power of another) which could exist in no other way. The essay responds to Kramer's criticisms of this argument, presented in an earlier issue of the University of Toronto Law Journal. It is suggested that Kramer misrepresents the argument in several respects. Once his misrepresentations are cleared out of the way, his position is revealed as being weak and confused.
Journal Article Evil Contingencies and the Rule of Law: A Response to Hamish Stewart Get access N.E. Simmonds N.E. Simmonds Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Jurisprudence, Volume 51, Issue 1, 2006, Pages 179–189, https://doi.org/10.1093/ajj/51.1.179 Published: 01 June 2006
I Law as instrument and as aspiration Most of the time we are inclined to regard law as a set of rather mundane arrangements whereby transactions are regulated and the more objectionable forms of conduct are punished. We take for granted the idea that authorities must decide upon the content of the law and will choose to enact as law those rules that they hope will advance certain goals or implement certain values. If they pursue goals or espouse values that we do not share, we may find that the laws they enact are not to our taste; indeed, we may sometimes consider the law to be grossly unjust. From this perspective, law appears to be a device that can be used for diverse purposes. Law can serve justice, but it can also be employed as an instrument of exploitation. In itself, therefore, law seems to be morally neutral, deriving any moral properties that it may possess from its variable and contingent content. There are times, however, when we think of law in a different way, as embodying an elevated aspiration. Consider, for example, the complex and conflicting feelings that surrounded the trials of the Nazi bosses at Nuremberg. Adherence to the forms and processes of law must there have seemed like a proud proclamation of the values for which World War II had been fought, rather than a matter of simple efficacy. The trials that resulted were significant as a forum for the articulation and affirmation of values and as a visible expression of commitment to legality: they were not seen simply as the best way of establishing the culpability of the accused. In such contexts, law sheds its familiar and workaday garb and appears on the stage as a lofty aspiration. Governance by law is seen as being, in itself, a virtue of a just political community; it is not thought of as an instrumentality that is here employed to serve justice [End Page 61] but might, in other circumstances, have been employed with equal efficacy in the service of evil. Of course, law cannot simultaneously be a lofty moral aspiration and a morally neutral instrument that is as serviceable for evil as for good. When expressed in these terms, our conventional understandings of law seem to embody a fundamental contradiction. Might there be a better way of capturing the mundane and aspirational aspects of law, so as to dissolve the apparent conflict between them? It might be suggested, for example, that the profound moral significance attached to the observance of standards of legality does not entail the view that law is itself intrinsically moral. Perhaps law is an instrument available for bad purposes as well as good, while also an essential precondition for the attainment of certain good states of affairs. Suppose, for example, that law is very serviceable both for liberal democrats and for fascists, but that it is an essential precondition of liberal democracy yet only a useful governmental aid for fascism. Our anxious concern, in contexts such as Nuremberg, to ensure that standards of legality are observed might then reflect our appreciation of the important but contingent connection between law and some favoured set of values, rather than reflecting an ascription of intrinsic value to legality itself. A plug spanner is a useful tool for turning various nuts and bolts but a virtually essential tool for turning spark plugs. The particular utility of plug spanners vis-à-vis spark plugs does not alter the fact that plug spanners are tools serviceable for many different tasks. Familiar features of legal thought, however, are hard to reconcile with the idea that law is simply a tool, albeit a tool with particular utility for valued goals. We do not find ourselves reflecting upon the nature of tools, except to consider their serviceability for this or that task. Yet when law presents itself in the guise...
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From Promise to Contract: Towards a Liberal Theory of Contract. By Dori Kimel. [Oxford: Hart Publishing. 2003. ix, 142, (Bibliography) 3 and (Index) 3 pp. Hardback £30.00. ISBN 1–84113–212–8.] - Volume 63 Issue 2
