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Published online by Cambridge University Press: 20 July 2015
To modern writers, the distinctive achievement of twentieth-century jurisprudence can be viewed as its emancipation from the narrow confines of English utilitarianism, and the subsequent development of perspectives rooted in the fundamental values of justice and rights. The central jurisprudential task of the new century is thus the exploration of a deeper, more elusive moral standpoint, the most profound intellectual commitments of which are yet to be fully digested and understood. My aim in this essay is to reveal something of the character of those commitments by considering the relationship of our present thinking about law and morality to its historical development.
A version of this essay was given as my inaugural lecture at the University of Exeter in May 2010. I would like to thank those present for discussion and suggestions. I would also and especially like to thank Fiona Smith, Margaret Martin and Richard Bronaugh for their extremely valuable comments on earlier drafts.
1. See, e.g., Dworkin, R., Law’s Empire (London: Fontana, 1986) at ch. 11Google Scholar: ‘Law Beyond Law’; Fuller, L., The Law in Quest of Itself (Chicago. IL: Foundation Press, 1940) at 140 Google Scholar, who writes of ‘the eternal process by which the common law works itself pure and adapts itself to the needs of a new day.’
2. Kolakowski, L., Modernity on Endless Trial (Chicago, IL: University of Chicago Press, 1990) at 3.CrossRefGoogle Scholar
3. Ibid.
4. I shall nevertheless use the term ‘modern jurisprudence’ and its equivalents in this essay to refer to the tradition I have in mind This, as I have indicated particularly concerns the intellectual agenda set by Rawls, which has had a massive influence upon jurisprudential thinking in the late twentieth and early twenty-first centuries.
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12. See, e.g., Aristotle, Politics (various eds.) Book I.
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25. Theodicy, supra note 23 at II.21-23 and especially III.117-18.
26. See ‘Optimism’, supra note 24 at 196 and 199-200. The term ‘optimism’ apparently comes from Leibniz’s view that our world represents an ‘optimum.’ I am very grateful to Mason’s essay for shaping my thinking on the connections between Leibniz, Voltaire and Locke.
27. See my essay ‘The Limits of Legal Ideologies’ (2009) 60 N. Ir. Legal Q. at 471-86, for a deeper discussion of the notion of eschatologies of politics.
28. See ‘Optimism’, (supra note 24) at 200.
29. Ibid.
30. Quoted in ‘Optimism’ at 203.
31. See my remarks in the preceding paragraph regarding the ‘progress’ and the effect of Rawls’s work. One important exception to this general trend is to be found perhaps in the ‘Greats’ tradition at the University of Oxford. See Marion, M., ‘Oxford Realism: Knowledge and Perception’ (2000) 8 British J. History Phil. at 299 [Pt 1] and 485 [Pt 2].CrossRefGoogle Scholar
32. Justice in Robes, supra note 21 at 138-39.
33. Aristotle, , Nicomachean Ethics Book X, ch. 9.Google Scholar
34. Leviathan, supra note 14 chs. 6 and 24.
35. Ibid. Hobbes’s characterisation of the infelicitous conditions of the state of nature is found in ch. 13.
36. For an insightful discussion see Geuss, R., History and Illusion in Politics (Cambridge: Cambridge University Press, 2001).Google Scholar
37. One might conceive such adjustments to concern only a response to changing conditions, motivated not by the desire for improvement but by avoidance of decline. But whilst this might mark the ambition of a caretaker government, it is not easy to see how political stasis (or vacuum) could exist in ‘normal’ contexts of governance. (I thank Richard Bronaugh for drawing my attention to this point.)
38. See, e.g., Kramer, M.H., In Defence of Legal Positivism: Law Without Trimmings (Oxford: Oxford University Press, 2003)CrossRefGoogle Scholar, and Kramer, , Where Law and Morality Meet (Oxford: Oxford University Press, 2004)Google Scholar. It is possible to deny this instrumental view of law: for a recent argument, based on the work of Lon Fuller, see Simmonds, N.E., Law as a Moral Idea (Oxford: Oxford University Press, 2007)Google Scholar. The issues I intend to raise are in large measure independent of these arguments.
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40. Fukuyama, F., The End of History and the Last Man (Harmondsworth, UK: Penguin, 1993).Google Scholar
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44. Ibid.
45. See Modernity on Endless Trial, supra note 2 at 7.
46. Law’s Empire, supra note 1 at 400.
47. Ibid. at 407.
48. Unlike Christian theology however, it is not represented as a transcendent state.
49. For an interesting, though contrary view, see Mannheim, K., Ideology and Utopia (London: Routledge 1936).Google Scholar
50. See ‘Optimism’, supra note 24.
51. See Oakeshott, M., ‘The Meaning of Culture’ (1930) 51 Cambridge Rev. at 367–38.Google Scholar
52. John Gray has written extensively on this theme: See, e.g., Gray, J., Enlightenment’s Wake (London: Routledge, 1995).CrossRefGoogle Scholar
53. See Justice in Robes, supra note 21 at 138-39.
54. The notion of free competition between ideas is, of course, itself a reflection of the ethical ideals of a market society.
55. John Gray, for example, has noted the inability of modern political thought to deal seriously with the conditions of pluralism to which it has helped to give rise: Enlightenment’s Wake, supra note 52 at 169ff.
56. The religious understanding of the sacred has this difference with the secular: that it is associated with the significance of the afterlife: that what we do here may lead us to heaven or to hell. Religious conceptions of the sacred (and of conscience) take on an additional dimension that is not found within the secular, for which all consequences relate to the here-and-now
57. Modernity on Endless Trial, supra note 2 at 70.
58. Ibid. at 70
59. Kant’s moral philosophy is not the first, but it is the most clear, ex Pression of this view: see Kant, , ‘Groundwork of the Metaphysics of Morals’ in Gregor, M., ed. Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant (Cambridge: Cambridge University Press, 1996) at 37–108 CrossRefGoogle Scholar [Practical Philosophy].
60. See Law’s Empire, supra note 1 at ch. 3.
61. Korsgaard, C., Creating the Kingdom of Ends (Cambridge: Cambridge University Press, 1996) at 188 and 197CrossRefGoogle Scholar. See also A Theory of Justice, supra note 8 at xviii: ‘What I have attempted to do is to generalize and carry to a higher order of abstraction the traditional theory of the social contract as represented by Locke, Rousseau, and Kant … The theory that results is highly Kantian in nature.’
62. Kant, ‘An Answer to the Question: What is Enlightenment?’ in Practical Philosophy, supra note 59 at 8:35 [original emphasis]. The literal translation (from Horace, Epodes I.2.40) is ‘Dare to be wise!’
63. Kant, , ‘Religion Within the Bounds of Mere Reason’, trans. by Giovanni, G. di in Wood, AW. & Giovanni, G di, eds., Religion and Rational Theology: The Cambridge Edition of the Works of Immanuel Kant (Cambridge: Cambridge University Press, 1996) at 6:37.CrossRefGoogle Scholar
64. Romans 7:15.
65. See Rawls, , Lectures on the History of Moral Philosophy, ed. by Herman, B. (Cambridge, MA: Harvard University Press, 2000) at xiii–iv.Google Scholar
66. On his understanding of the relationship between justice and integrity, see Law’s Empire, supra note 1 at 176.
67. See Geuss, , Outside Ethics (Princeton, NJ: Princeton University Press, 2005) at ch. 2.Google Scholar
68. For instance: that law is equally present in conditions of good and evil does not imply that law is equally serviceable for good and evil ends. For an argument that it is not, see Law as a Moral Idea, supra note 38.
69. Fuller, L., The Morality of Law (New Haven, CT: Yale University Press, 1964) at 9.Google Scholar
70. Practical Philosophy, supra note 59 at IV403.
71. Adorno, Horkheimer and the French thinker Lacan stressed this similarity: see History and Illusion, supra note 36 at 83.
72. Ibid.
73. De Jure Naturae, supra note 16.
74. This is not to suggest, however, that the values imposed by the will are arbitrary; for it is a dogma of the Kantian philosophy and its intellectual descendants that the will is fully realized only in being rational.
75. I leave aside here any discussion of the extent to which motive or intention is relevant to, let alone ‘grounds’ morality.
76. Nicomachean Ethics, supra note 33 at Books 8 and 9. For discussion see Pangle, L. S., Aristotle and the Philosophy of Friendship (Cambridge: Cambridge University Press, 2002).CrossRefGoogle Scholar
77. Oakeshott, M., Religion, Politics and the Moral Life (New Haven, CT: Yale University Press, 1993) at 50.Google Scholar
78. Justice in Robes, supra note 21 at 138-39.