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Jurisprudence as a Moral and Historical Inquiry

Published online by Cambridge University Press:  20 July 2015

N.E. Simmonds
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Extract

The essay builds on the claim that the concept of law is best understood as structured by an abstract archetype to which actual instances of law approximate, and that the archetype in question is an intrinsically moral idea: the idea of a realm of universality and necessity within which one can enjoy freedom as independence from the power of others. Reflection upon the nature of this archetype is a form of moral reflection upon experience, where we seek to grasp the nature of a value by considering the forms in which the value has been partially realised. The departure from Aristotelian thought (to be found in writers from Grotius to Kant) served to obscure the possibility of such a form of moral reflection. Twentieth-century theories of the nature of law have tended to focus upon the problem of law’s self-genesis, but this neglects the full extent of the philosophical problem of law’s nature.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 18 , Issue 2 , July 2005 , pp. 249 - 276
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2005

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References

1. Simmonds, Nigel E., “Law as a Moral Idea” (2005) 55 U.T.L.J. 61.Google Scholar

2. See, e.g., Raz’s argument that, in the phrase ‘the rule of law’, the term ‘law’ is employed in a popular or lay sense which is to be contrasted with a more precise or technical sense: Raz, Joseph, The Authority of Law(Oxford: Oxford University Press, 1979) at 212–13 Google Scholar. See also Allan, T.R.S., Constitutional Justice (Oxford: Oxford University Press, 2001) at 62–67 Google Scholar; MacCormick, Neil, Questioning Sovereignty (Oxford: Oxford University Press, 1999) at 43.CrossRefGoogle Scholar

3. A good example is Weldon, T.D., The Vocabulary of Politics (Baltimore, MD: Penguin Books, 1953)Google Scholar. See also Peter Laslett’s famous observation that ‘The tradition has been broken’ and ‘political philosophy is dead’: Laslett, Peter, ed., Philosophy, Politics and Society (Oxford: Oxford University Press, 1956) at vii Google Scholar.

4. ‘[I]t is not a person that we allow to rule, but rather law.’ Aristotle, Nicomachean Ethics trans. and ed. by Crisp, Roger (Cambridge: Cambridge University Press, 2000) at 92. Bk. 5, ch. 6. (1134a).Google Scholar

5. See Gadamer, Hans-Georg, Truth and Method, 2nd English ed. trans. by Glen-Doepel, William (London: Sheed and Ward, 1979) at 278–89 Google Scholar; 2nd rev. ed. trans. rev. by Weinsheimer, J. & Marshall, D.G. (London and New York: Continuum Books, 2004) at 310–21.Google Scholar

6. Oakeshott, Michael, “The Political Economy of Freedom” in Oakeshott, Michael, Rationalism in Politics (New York: Basic Books, 1962) 37 at 40.Google Scholar

7. Honoré, Tony, Making Law Bind (Oxford: Clarendon Press, 1987) at 32.Google Scholar

8. The continuities here are explored by Gadamer, Hans-Georg, The Idea of the Good in Platonic-Aristotelian Philosophy, trans. by Smith, P. Christopher (New Haven, CT: Yale University Press, 1986)Google Scholar; see also Gadamer, Hans-Georg, Hegel’s Dialectic, trans. by Christopher Smith, P. (New Haven, CT: Yale University Press, 1976).Google Scholar

9. Mackie, J. L., Ethics: Inventing Right and Wrong (Harmondsworth, UK: Penguin Books, 1977) at 22.Google Scholar

10. McDowell, John, Mind and World (Cambridge, MA.: Harvard University Press, 1994) at 34–36 Google Scholar. See also McDowell, , “Non-Cognitivism and Rule-Following” in Steven Holtzman, H. & Christopher Leich, M., eds., Wittgenstein: to Follow a Rule (London: Routledge & Kegan Paul, 1981) 141.Google Scholar

11. Hume, David, Enquiries concerning Human Understanding and concerning the Principles of Morals, 3rd ed. by Nidditch, P. H. (Oxford: Oxford University Press, 1975) at 294.CrossRefGoogle Scholar

12. Murdoch, Iris, The Sovereignty of Good (New York: Schocken Books, 1971) at 35.Google Scholar

13. Debate about the nature of law may therefore be compared to a more quotidian type of debate, where we reflect upon the moral significance of an individual’s conduct. See Nigel E. Simmonds, “Book Review: The Ethics of Legal Positivism: A Review of Tom Campbell, D., The Legal Theory of Ethical Positivism“ (1999) 2 Legal Ethics 87.Google Scholar

14. Gadamer, supra note 5, trans. by Glen-Doepel at 458-59 and trans. by Weinsheimer & Marshall at 503-04.

15. See Dworkin’s account of ‘fit’ and ‘appeal’ in interpretation: Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, 1986).Google Scholar

16. Murdoch, supra note 12 at 31.

17. ‘The fact is the moral world, both on its external side of the family, society, and the State, and the work of the individual in them, and again, on its internal side of moral feeling and belief. The theory which will account for and justify these facts as a whole is the true moral theory.’ Bradley, F.H., Ethical Studies, 2nd ed. (Oxford: Clarendon Press, 1927) at 89.Google Scholar See also Collingwood, R.G., An Essay on Philosophical Method (Oxford: Oxford University Press, 1933) at 133 Google Scholar: ‘(T)he subject-matter of ethical thought must be conceived as something whose essence involves existence.’

18. See Williams, Bernard, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985).Google Scholar

19. See Simmonds, Nigel E., Central Issues in Jurisprudence: Justice, Law and Rights (London: Sweet and Maxwell, 2002) at 6.Google Scholar

20. Grotius, , De Jure Belli ac Pacis Libri Tres (1625), trans. by Kelsey, F.W., two vols. (Oxford: Clarendon Press, 1925) 1.3.8.2. (at 104.)Google Scholar

21. Ibid. at 1.1.8.1. (at 36-7.)

22. Ibid. at 2.23.1. (at 557.)

23. Ibid. Prolegomena 58. (at 30.) The relevant passage is as follows:

If anyone thinks that I have had in view any controversies of our own times, either those which have arisen or those which can be foreseen as likely to arise, he will do me an injustice. With all truthfulness I aver that, just as mathematicians treat their figures as abstracted from bodies, so in treating law I have withdrawn my mind from every particular fact.

24. Pufendorf, , De Jure Naturae et Gentium Libri Octo (1688 ed.), trans. by Oldfather, C.H & W.A., two vols. (Oxford: Clarendon Press, 1934). Book 1, ch. 2.Google Scholar

25. Ibid. at 1.2.6. (at 28.)

26. Kant, Immanuel, Groundwork of the Metaphysics of Morals in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy, trans. by Gregor, Mary J. (Cambridge: Cambridge University Press, 1996) at 57–58 Google Scholar (4:403).

27. Ibid. at 49 (4:393).

28. Kant, Immanuel, Critique of Pure Reason, trans. by Smith, Norman Kemp (London: MacMillan, 1933) at 640 Google Scholar (A 813; B 841).

29. Ibid. at 639 (A 811; B 839).

30. Kant, supra note 26 at 71 (4:418).

31. The argument is one that Kant takes from Herder, to whose ‘misology’ Kant is responding at this point in his theory. Kant challenges, however, the idea that reason is best judged by its serviceability for happiness, invoking a teleological argument about the purpose of reason in support of this claim. (The role of such teleological arguments within Kant’s moral philosophy has perhaps received insufficient study in the literature of Kantian scholarship.) See ibid. at 50-52.

32. Kant regards the idea of happiness as indeterminate, but indeterminacy resembles simplicity in so far as we cannot learn more about the nature of the value by reflecting upon our experience. Thus, Kant tells us that even the ‘most insightful’ being cannot form a determinate concept of what he wills when he wills happiness: ibid. note 26 at 70.

33. Raz, Joseph, Ethics in the Public Domain (Oxford: Oxford University Press, 1994) at ch. 8 Google Scholar.

34. Hayek, F. A., Law, Legislation and Liberty: Rules and Order, vol. 1 (Chicago: Chicago University Press, 1973)Google Scholar at ch. 1.

35. Hart, H.L.A., The Concept of Law (Oxford: Oxford University Press, 1961).Google Scholar

36. Dworkin, supra note 15 at 110-11.

37. See, for example, Hart’s final chapter on international law in The Concept of Law, supra note 35.

38. See my remarks in Central Issues in Jurisprudence on Nietzsche, supra note 19 at 178-79.

39. See Hart, supra note 35.

40. Compare Hart’s ‘three recurring issues’ underlying the question ‘what is law?’. See ib i d. a t 6-13.

41. Simmonds, supra note 1.

42. I have in mind here versions of positivism influenced by Bentham or Hobbes. In many more recent versions, legal positivism has lost any clear focus upon the positing of rules by authority.

43. Collingwood, supra note 17 at 4.

44. Supra note 1.

45. See Hart, H.L.A., “ Lon L. Fuller: The Morality of Law” in Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) 343.CrossRefGoogle Scholar

46. Consider in this context Collingwood’s account of ‘a method repeatedly used throughout the history of philosophy’:

To define a philosophical concept, therefore, it is necessary first to think of that concept as specifying itself in a form so rudimentary that anything less would fail to embody the concept at all. This will be the minimum specification of the concept, the lower end of the scale; and the first phase of the definition will consist in stating this. Later phases will modify this minimum definition by adding new determinations, each implied in what went before, but each introducing into it qualitative changes as well as additions and complications. Collingwood, supra note 17 at 100-01.

47. See Simmonds, , supra note 13 at 87 Google Scholar.

48. What I have described as the symbiotic relationship between law and background understandings is important in this context. See Simmonds, , “Between Positivism and Idealism” (1991) 50 Cambridge L.J. 308 Google Scholar. See also Simmonds, , “Why Conventionalism Does Not Collapse into Pragmatism” (1990) 49 Cambridge L.J. 63 at 74–75.Google Scholar

49. See Simmonds, supra note 19 at 261-67.

50. See Simmonds, supra note 1.

51. See Simmonds, supra note 48. See also Postema, Gerald J., “Philosophy of the Common Law” in Coleman, Jules & Shapiro, Scott, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) 588 at 613–14.Google Scholar

52. Fuller, Lon, The Morality of Law, rev. ed. (New Haven, CT: Yale University Press, 1969) at 41 Google Scholar, 45.

53. Kant, supra note 28 (A133/B172) at 177.

54. Gadamer, supra note 5, trans by Weinsheimer & Marshall at 315.

55. Gadamer, supra note 5, trans. by Glen-Doepel at 286 and trans. by Weinsheimer & Marshall at 318. Weinsheimer and Marshall have: ‘They are valid only as schemata.’

56. Gadamer, supra note 5, trans. by Glen-Doepel at 287 and trans. by Weinsheimer & Marshall at 318.

57. Fuller, Lon, The Law in Quest of Itself (Chicago: The Foundation Press, 1940)Google Scholar. The archetype can perhaps be instantiated in both reflexive and non-reflexive forms. That is to say, some systems may instantiate the archetype by a practice that renders legal thinking within the system nonreflexive (being ultimately guided by a basic rule rather than by reflection upon the nature of law itself); other systems may instantiate the archetype by a fully reflexive practice wherein judges and citizens identify the law by reflection upon the nature of law itself. A history (at least of common law jurisdictions) might be written wherein a non-reflexive but self-transformative legal practice resembling the structure of a conversation is gradually eroded and replaced by two rival models of legal thought, in one of which law is self-transformative in virtue of being fully reflexive, while the other view presents law as non-reflexive and open to transformation only by external legislative or political intervention.

58. For a description of the problem and some of its background, see Simmonds, “Protestant Jurisprudence and Modern Doctrinal Scholarship” (2001) 60 Cambridge L.J. 271 Google Scholar.

59. Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) at ch. 2.Google ScholarPubMed

60. Simmonds, , The Decline of Juridical Reason: Doctrine and Theory in the Legal Order (Manchester, UK: Manchester University Press, 1984) at 109–12 Google Scholar.

61. This step beyond the purely formal conditions of universality and promulgation is one that may perhaps be found in Kant’s Doctrine of Right, a work that has exerted considerable influence upon the history of doctrinal scholarship, but that is still very imperfectly understood. Kant defines ‘Recht‘ as ‘the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom’: Kant, Metaphysics of Morals in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy, trans. by Gregor, Mary J. (Cambridge: Cambridge University Press, 1996) at 387 Google Scholar (6: 230). As Thomas Pogge points out, ‘a universal law makes it possible for persons’ choices to coexist only if it is effective‘ so that the full range of conditions for efficacy must be included in the “sum of conditions” mentioned in the definition: Pogge, Thomas, “Is Kant’s Rechtslehre a Comprehensive Liberalism?” in Timmons, Mark, ed., Kant’s Metaphysics of Morals: Interpretative Essays (Oxford: Oxford University Press, 2002) 133 Google Scholar at 138.

62. Simmonds, “Reason, History and Privilege: Blackstone’s Debt to Natural Law” (1988) Savigny-Zeitschrift fur Rechtsgeschichte: Germanistische Abteilung 200.Google Scholar

63. It also renders the status of Hart’s own claims problematic: see Simmonds, supra note 19 at 174-79.

64. See Simmonds, , “The Dissolution of Law?” in Poore, Duncan, ed., Where Next? Reflections on the Human Future (London: Board of Trustees of the Royal Botanic Garden, Kew 2000)Google Scholar.

65. Hegel’s Philosophy of Right, trans. with notes by Knox, T.M. (Oxford: Clarendon Press, 1952) at para. 1 Google Scholar. See also the same work at para. 32: ‘The determinations of the concept in the course of its development are from one point of view themselves concepts, but from another they take the form of existents, since the concept is in essence Idea. The series of concepts which this development yields is therefore at the same time a series of shapes of experience, and philosophic science must treat them accordingly.’ And see Collingwood, supra note 17 at 221-22.