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Between Positivism and Idealism

Published online by Cambridge University Press:  16 January 2009

N. E. Simmonds
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[W]hatsoever is the object of any man's appetite or desire, that is it which he for his part calleth good: and the object of his hate and aversion, evil; and of his contempt, vile and inconsiderable. For these words of good, evil, and contemptible, are ever used with relation to the person that useth them: there being nothing simply and absolutely so; nor any common rule of good and evil, to be taken from the nature of the objects themselves; but from the person of the man, where there is no commonwealth; or, in a commonwealth, from the person that representeth it; or from an arbitrator or judge, whom men disagreeing shall by consent set up, and make his sentence the rule thereof.

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The Cambridge Law Journal , Volume 50 , Issue 2 , July 1991 , pp. 308 - 329
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Copyright © Cambridge Law Journal and Contributors 1991

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References

1 Hobbes, Thomas, Leviathan (1651), ch. 6.Google Scholar

2 Hobbes is commonly taken to be proposing a subjectivist theory of the good. Subjectivism should not, however, be regarded as a necessary or even typical feature of liberalism. For an effective argument that liberals have generally not been subjectivists, see Kymlicka, Will, Liberalism, Community and Culture (Oxford 1989), pp. 17–19.Google Scholar

3 Lukàcs tells us that “the whole revolutionary period of the bourgeoisie was based on the assumption that the formal equality and universality of the law (and hence its rationality) was able at the same time to determine its content”. Luk´cs, G., History and Class Consciousness, translated by Livingstone, Rodney, (London 1971), p. 107.Google Scholar

4 For doubts see Finnis, J., “Legal Enforcement of ‘Duties to Oneself: Kant v. Neo-Kantians” (1987) 87 Columbia Law Review 433.CrossRefGoogle Scholar For a view of Kant as a moral perfectionist who perverts the idea of freedom, see Tucker, Robert, Philosophy and Myth in Karl Marx, 2nd ed. (Cambridge 1972), pp. 33–39.Google Scholar

5 See the excellent discussion of both Hobbes and Bentham in Postema, G., Bentham and the Common Law Tradition (Oxford 1986).Google Scholar

6 Here and throughout the article I use the term “legal positivism” to refer to theories claiming that law is a body of rules existing in ascertainable verbal formulation and identifiable by their source. I am not interested in the modest version of positivism that simply claims that an unjust rule may nevertheless be a law.

7 Hegel, G.W.F., The Philosophy of Right, translated by Knew, T.M. (Oxford 1952), p. 12.CrossRefGoogle Scholar

8 Fish, Stanley, Doing What Comes Naturally (Oxford 1989).CrossRefGoogle Scholar

9 Hobbes, , loc. cit. n.l above.Google Scholar

10 For Hobbes’ view of language, see Leviathan, ch. 4. Much of what I have to say could have been expressed as a Wittgensteinian critique of the Hobbesian view of language.

11 Hart, H.L.A., The Concept of Law (Oxford 1961), p. 136.Google Scholar

12 See Simmonds, , Central Issues in Jurisprudence (London, 1986), pp. 18–20. In the passage quoted above, Hart is in effect claiming that limited defeasibility may be compatible with the existence and bindingness of rules. He supports this claim by citing the promise example. But further reflection on either rules or promises should lead us to distinguish between two different ways in which a theory might seek to accommodate the feature of defeasibility: i. one might say that being “bound” by a rule is no more than having a weighty but non-conclusive reason for applying it; or, ii. one might say that being bound by a rule involves the exclusion of conflicting considerations, but that exceptions to a rule may be created provided that the exceptions can be formulated in rule-like form with a willingness to extend them to future cases. On the first view, defeasibility is cabined by the “weight” of the rule; on the second view it is cabined by the limits on willingness to formulate general exceptions extending to future cases.Google Scholar

13 See Raz, J., Practical Reason and Norms, 2nd ed. (Princeton 1990).Google Scholar

14 Raz, J., The Authority of Law (Oxford 1979), pp. 185–192.Google Scholar

15 See Simmonds “Bluntness and Bricolage” (forthcoming).

16 See Simmonds, , “Why Conventionalism Does Not Collapse into Pragmatism” [1990] C.L.J. 63 at p. 74.Google Scholar

17 See Dworkin, R., A Matter of Principle (Harvard 1985), pp. 34–57;Google ScholarMacCallum, G., “Legislative Intent” in Summers, Robert S. (ed.), Essays in Legal Philosophy (Oxford 1968).Google Scholar

18 Raz, J., The Authority of Law (Oxford 1979), p. 50.Google Scholar

19 See above

20 See Bohannan, Paul “The Differing Realms of the Law” in Bohannan, Paul (ed.), Law and Warfare: Studies in the Anthropology of Conflict (University of Texas 1967), p. 43.Google Scholar

21 Hayek, F.A., Law, Legislation & Liberty, vol. I (London 1973), pp. 134–135.Google Scholar Hayek speaks here of a “constitution”, but it is clear from his remarks later on the same page that he means to include under this label the notion of a rule of recognition. See also Kramer, Matthew, Legal Theory, Political Theory & Deconstruction: Against Rhadamanthus (Indiana 1991), ch. 3.Google Scholar

22 Kant, , Critique of Pure Reason, A133/B172.Google Scholar

23 Wittgenstein, Ludwig, Philosophical Investigations, translated by Anscombe, G.E.M. (Oxford 1958), p. 227.Google Scholar

24 Simpson, A.W.B., “The Common Law and Legal Theory” in Simpson, Legal Theory and Legal History (London 1987), p. 359.Google Scholar

25 Simmonds, , “Why Conventionalism Does Not Collapse into Pragmatism” [1990] C.L.J. 63 at pp. 77–79.Google Scholar

26 Sartorius, Rolf, “Hart's Concept of Law” in Summers, Robert S. (ed.), More Essays in Legal Philosophy (Oxford 1971), pp. 158, 159.Google ScholarThe article was first published in (1966) 52 Archiv fur Rechts-und Sozialphilosophie 161.Google Scholar (In the passage I quote, Sartorius is in fact quoting Morris Cohen.) For criticism of Sartorius see Hacker, P.M.S. in Hacker, P.M.S. and Raz, J., Law, Morality and Society (Oxford 1977), p. 22.Google Scholar

27 MacCormick, Neil, H.L.A. Hart (London 1981), p. 108.Google Scholar For Hart's discussion, see Hart, , op cit n.11 above, pp. 89–96.Google Scholar

28 Hayek, , op cit. pp. 26–34.Google Scholar See also, most recently, Hayek, F.A., The Fatal Conceit (London 1988).CrossRefGoogle Scholar

29 Cohen, G.A., Karl Marx's Theory of History (Oxford 1978), p. 231.Google Scholar For a perceptive critique of Cohen, see Kramer, , op cit. n. 21 above, ch. 2.Google Scholar

30 “For I found that law did not keep politely to a ‘level’ but was at every bloody level; it was imbricated within the mode of production and productive relations themselves (as property- rights, definitions of agrarian practice) and it was simultaneously present in the philosophy of Locke; it intruded brusquely within alien categories, reappearing bewigged and gowned in the guise of ideology; it danced a cotillion with religion, moralising over the theatre of Tyburn; it was an arm of politics and politics was one of its arms; it was an academic discipline, subjected to the rigour of its own autonomous logic; it contributed to the definition of the self-identity both of rulers and of ruled; above all, it afforded an arena for class struggle, within which alternative notions of law were fought out.” Thompson, E.P., The Poverty of Theory (London 1978), p. 96.Google Scholar See also Gordon, Robert “Critical Legal Histories” (1984) 36Google ScholarL.R., Stanford 57 at pp. 102–109;Google ScholarSklar, M.J., The Corporate Reconstruction of American Capitalism 1890–1916 (Cambridge 1988), p. 89.CrossRefGoogle Scholar

31 See Simmonds, “Pashukanis and Liberal Jurisprudence” (1985) 12 Journal of Law & Society 135.CrossRefGoogle Scholar

32 (1979) 54 New York University Law Review 339 at pp. 363–374. I do not wish to endorse all the claims made by Griffiths in this article.Google Scholar

33 op. cit. p. 368.Google Scholar

34 op. cit. p. 369.Google Scholar

35 op. cit. p. 373.Google Scholar

36 op. cit. p. 372.Google Scholar

37 See Dworkin, Ronald, Law's Empire (London 1986),Google Scholar ch. 11. The Hegelian undertone is pronounced at this point in Dworkin's work. Timothy O'Hagan has pointed to what he sees as an affinity between Dworkin and the early Hegel. See O'Hagan, , “On Hegel's Critique of Kant's Moral and Political Philosophy” in Priest, S. (ed.), Hegel's Critique of Kant (Oxford 1986), p. 155 n. 34. While basically agreeing with O'Hagan, my own feeling is that Dworkin's theory of interpretation is too individualistic and free-floating to permit the parallel with Hegel to be pursued very far.Google Scholar

38 Dworkin, , op tit., p. 74.Google Scholar

39 See Jaspers, Karl, The Origin and Goal of History, translated by Bullock, M. (London 1953).Google Scholar

40 See Hegel, G.W.F., Lectures on the History of Philosophy, translated by Haldane, E.S. and Simson, F.H. (London 1892), vol. I, pp. 384–448;Google ScholarNietzsche, F., Beyond Good and Evil, s. 191.Google Scholar

41 See Simmonds “Imperial Visions and Mundane Practices” [1987] C.L.J. 465.

42 See op. cit. n. 39 at pp. 483–486.Google Scholar See also Simmonds, , “Lawyers, Philosophers and the Ambivalence of Practice” (1984) Rechlstheorie 139 and Simmonds, The Decline of Juridical Reason (Manchester 1984), passim.Google Scholar

43 Thus, the contrast between freedom and constraint in interpretation, basic to Dworkin's theory, has been firmly rejected by Stanley Fish, op. cit. n. 8 above.

44 In searching for such a criterion, Dworkin really reverts to the conception of philosophy as essentially concerned to unearth deep criteria. On an interpretative view of philosophy, a “theory of interpretation” could only be an interpretation of our practices of interpretation. If the theory proffers a criterion of correct interpretation, it must satisfy its own criterion. Dworkin could presumably claim that his theory does satisfy its own criterion: he would argue that it makes “the best” (but from what point of view? moral? aesthetic? …?) of our practices of interpretation. Unfortunately, however, a theory cannot pull itself up by its own bootstraps. If Dworkin were to claim that his theory of interpretation does not need to satisfy any deeper criterion of correct interpretation, he would have no reason for not extending the same exemption to all interpretations, thereby rendering his own theory superfluous. He therefore faces the following dilemma. If, to be acceptable, an interpretation requires a foundation in some deeper general criterion of correctness, Dworkin's theory fails: it is itself an interpretation that satisfies no criterion other than itself. If (on the other hand) an interpretation need not satisfy any such general criterion, Dworkin's theory is misconceived, since it proffers precisely such a general criterion. Dworkin here runs into a classic and fundamental problem. One may feel dissatisfied with a theory that does not offer some criterion of correct interpretation, some bedrock foundation for knowledge, or whatever. It remains the case, however, that all such theories encounter insuperable problems of circularity, or of self-exemption from their own requirements.

45 Dworkin, , op. cit., ch. 6.Google Scholar

46 See Arendt, Hannah, The Human Condition (Chicago 1958).Google Scholar See also Constant, Benjamin, “The Liberty of the Ancients Compared with that of the Moderns” (1819) in Constant, Political Writings, ed. by Fontana, Biancamaria (Cambridge 1988).Google Scholar

47 Pollock, F. & Maitland, F.W., History of English Law, 2nd ed. (reissued), (Cambridge 1968), vol. I, p. 230.Google Scholar

48 Although even here the medieval jurists tended to employ concepts drawn from Roman private law in what we would see as a public law context. For a defence of the general view that medieval legal thought did not lack a conception of public law, see Post, Gaines, Studies in Medieval Legal Thought (Princeton 1964).CrossRefGoogle Scholar

49 For some of the complexities surrounding this distinction see Schmidt, J., “The Concept of ‘Civil Society’ in Hegel's Political Thought” (1981) 2 History of Political Thought 469.Google Scholar

50 “It is true …that throughout the Middle Ages and into early modern times, criticism was concerned almost exclusively with individual moral character and intellectual commitment: wicked actions and false doctrines. The medieval and Renaissance ‘mirror of princes’ literature, for example, asks only what the prince should think and do and has nothing to say about the regime over which he presides or the hierarchical order he defends. It censures princes of bad character, never the principality itself.” Walzer, Michael, The Company of Critics (New York 1988), p. 5.Google Scholar

51 See Skinner, Quentin, Foundations of Modern Political Thought, 2 vols. (Cambridge 1978).Google Scholar

52 See Marx's essay “On the Jewish Question” in Marx, Karl, Early Writings, translated by Livingstone, R. and Benton, G. (London 1975), p. 234.Google Scholar

53 Simmonds, , The Decline of Juridical Reason (Manchester 1984).Google Scholar

54 Dworkin, op cit. ch. 11.