THE HEALTH OF NATIONS Part 2 ppsx

1.54 In short, the idea ofan unconscious level within the humanmind, which is surely confirmed by our own introspection and experi-ence, seems to imply that we have within us, as the ulti

‘state ofnature’ concept in social theory, pre-normative but hauntingthe making and breaking ofall norms It implies that conscious be-haviour is intrinsically repressive ofsomething, that mental life is nec-essarily a struggle and it seems to define sanity (or what was once called

‘happiness’) as some sort ofsuccessful integration ofthe conscious andunconscious aspects ofthe mind, and that social life is, in some way, anunnatural suppression ofour natural selves

1.54 In short, the idea ofan unconscious level within the humanmind, which is surely confirmed by our own introspection and experi-ence, seems to imply that we have within us, as the ultimate source ofour behaviour, a sort ofhidden god or demon, wilful and inscrutable,acting as an ultimate explanation both ofthe need for social and moralorder and ofour relentless propensity to violate social and moral order.And, since the public mind ofa society flows out from and back to theprivate minds ofsociety-members, we may expect that human societieswill reproduce on a large scale the structural characteristics and hencethe pathological potentialities ofthe mind ofthe individual humanbeing.72

1.55 The Freudian scheme presents consciousness as dynamic, ing from the past through the present to the future in a process ofceaseless self-re-creating But it is the past which dominates the wholeprocess, a past which is remembered or repressed or imagined Onthis view, psychopathological conditions may arise from a relationshipwith the past which gives rise to existential problems in the present

flow-A society has a specific relationship to its past flow-At any particular time,its own self-understanding, its own theory of itself, includes an ideaofits own history, partly remembered, partly repressed, partly imag-ined Very easily, a society’s self-idea can become distorted in a waywhich causes it to fail to adapt to the realities which transcend it, in-cluding its relationship with other societies and its relationship withthe ideas and aspirations ofits members (subordinate societies and

reason as that we infer it from its effects –, but of which we know nothing.’ S Freud,

New Introductory Lectures on Psycho-Analysis (1932–3), in Standard Edition of the Complete Psychological Works of Sigmund Freud (tr and ed J Strachey; London, Hogarth Press and

Institute ofPsycho-Analysis; 1964), xxii, p 70.

72 ‘Is it not, then, said I, impossible for us to avoid admitting this much, that the same forms and qualities are to be found in each one of us that are in the state? They could not get

there from any other source.’ Plato, Republic, 435e, in The Collected Dialogues (fn 52 above),

p 677.

individual human beings).73 And the eternal presence ofa distortedpast may lead, in societies as in individuals, to ‘repetition’74 – for ex-

ample, re-enacting behaviour appropriate to imperial power, an ancien

r´egime, an era ofreligious orthodoxy, or an era ofunchallenged cultural

superiority

1.56 When social psychopathology takes the form of collectivefantasy-thinking, repressing the unthinkable, believing the unbeliev-able, then social psychotherapy may be impossible ifsociety succeeds

in suppressing all alternative thinking The discrepancy between thefantasy and the reality may be very great but the society will tend to in-terpret the discrepancy as a demonstration ofthe reality ofthe fantasy,

as the paranoid mind finds endless confirmations ofits special reality.Democracy and capitalism are remarkable examples ofa reality whoseaxes are ‘liberty’ and ‘equality’ but whose lived experience is ofintensesocial control and glaring inequality, so that another possible self-ideawould be that they are systems designed to enable the few to dominatethe many Similarly, religious theories ofindividual salvation, expressedperhaps as a reward in an after-life, may generate, in practice, extremesystems ofsocial control, physical and mental

1.57 To tell a psychotic person that their fantasy of omnipotence

is not a fantasy but is part of reality, and that they are right to believethat they are exempt from morality, legality and rationality, might be areasonable course ofaction in a very short-term situation To persist insuch a course ofaction could only mean that you yourselfhad checkedinto the asylum And yet that is what responsible people have told themasters ofthe societies called ‘states’ It is little wonder that the humanworld, in possession ofsuch a reality, has been filled with the works ofmadness and evil which have characterised the history ofso-called ‘in-ternational relations’ for the last seven centuries, including the madness

73 Mannheim discusses such distortions under the heading of‘false consciousness’ through which a society’s particular ‘reality’, based on an ‘ideology’ inherited from the past, may not

correspond with the new reality within which the society must exist Ideology and Utopia

(fn 25 above), pp 84ff It is the overall contention of the present volume that this is exactly what has happened in the relationship between the theory and the reality ofinternational society.

74 In accordance with Freud’s hypothesis that ‘all the organic instincts are conservative, are acquired historically and tend towards the restoration ofan earlier state ofthings’ S Freud,

Beyond the Pleasure Principle (1920), in Standard Edition (fn 71 above), xviii, pp 37–8.

and the evil ofwar and the madness and evil ofsocially organised humanoppression and exploitation.

1.58 Ifa particular kind ofsociety, say the ‘state’, is taught to seeitselfas being the ultimate source ofmorality, then it seems also to followthat that society as a whole is beyond moral judgement and, as a second

corollary, that the inter se co-existence ofsuch societies is beyond moral

judgement.75Ifa society is taught to see itselfas the ultimate source oflaw, then it seems to follow that society as a whole is beyond the rule oflaw, except to the extent that it consents, by agreement with other suchsocieties, to submit itselfto law-like constraints.76

1.59 And, at last in the twentieth century ofall centuries, the sirenvoice ofprofessional philosophy whispers some interesting ideas intothe ear ofthose who govern and those who are governed: (1) there is

no rational ground for rationality; (2) the actual is necessarily rational;(3) the actual is always rationalisable; (4) truth emerges from actualpractice; (5) truth proves itselfin practice; (6) values are an epiphe-nomenal aspect ofrelations ofpower; (7) values are social conventions;(8) values are rhetorical conventions; (9) the mind is nothing more than

a function of physiology and biology; (10) ends are justified means.1.60 Morally sensitive human beings cannot find it in their hearts tojudge, still less to condemn, those human beings who are afflicted withthe terrible suffering of psychosis Should we judge and condemn thesickness ofwhole societies, perhaps now even the impending sicknessofthe society ofthe whole human race? Should we, at least, judge andcondemn those ofus who fail to try to treat the sickness ofhumansociety, those ofus who fail to try to make a better human reality?

75 ‘For the History ofthe World occupies a higher ground than that on which morality has properly its position; which is personal character – the conscience ofindividuals – their

particular will and mode ofaction.’ G W F Hegel, The Philosophy of History (fn 3 above),

pp 66–7.

76 ‘International law governs relations between independent States The rules oflaw binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles oflaw and established in order to reg- ulate the relations between these co-existing independent communities or with a view to the achievement ofcommon aims Restrictions upon the independence ofStates cannot

therefore be presumed.’ France v Turkey (The Lotus), Permanent Court ofInternational

Justice, series A, no 10 (1927), pp 18–32, at p 18 The view that international law is

simply an aspect ofpower relations is, ironically, known as ‘realism’ A locus classicus is

H J Morgenthau, Politics among Nations: the Struggle for Power and Peace (New York,

McGraw-Hill; 6th edn, 1985).

Theory and Eutopia

1.61 In the light ofall that has been said above, we can at least identifyrather precisely the painful moral situation of anyone who does seek tomake a better human reality The essence ofthat situation is that theobvious means ofmaking a better human reality are not available.(1) Religion, the sublime capacity ofhuman self-transcendence, is

not religion but religions What seems like truth and moral certaintyseen from within a given religion may seem like madness from outsidethat religion For this reason, religions have proved to be a major partofthe problem ofhumanity’s inhumanity

(2) Science and mathematics, which makes science possible, are the

greatest achievements ofthe human mind But they are a realm ofmeanswithout ends The purposes to which the ideas and the practices and theproducts ofscience may be put must be determined by other means,through the activity ofother systems within the human mind And theabuse ofthe fruits ofscience is another major part ofthe problem ofhumanity’s inhumanity

(3) Philosophy, the sublime potentiality ofthe human mind to

im-prove its own functioning by means of its self-contemplating, has alsoproved capable ofdisabling that capacity and ofassisting the mind in theexercise ofits other power, the power to do great evil, and to convinceitselfthat, in so doing, it is doing good

(4) The former intellectual class in society, ofthose who recognise a

social and moral responsibility to use the power ofthe mind for the provement ofhuman reality, has been marginalised and has marginaliseditself, losing its self-confidence and even its self-consciousness in theface ofthe terrible events ofthe twentieth century and the rise oftheoverwhelming forces of mass-consciousness

im-(5) The universities, the realm devoted to the study ofboth ends

and means, whose ideal function is to use the capacities of the humanmind to their limits in human self-knowing and self-creating, and toconvey that potentiality from generation to generation, have lost sight

of that function, becoming either efficient servants of imperious economic systems or else obsequious rationalisers ofthe social actual.(6) The common sense ofthe human species, the better voice ofaccu-

socio-mulated experience and self-evolutionary aspiration within each humanmind, has been overwhelmed by another human voice, speaking through

the mass consciousness ofthe public mind as it universalises humanity’scapacity for a form of thinking which is dehumanising, degrading andself-destructive.

1.62 And yet, how can any morally sensitive person, knowing whathappened in the twentieth century and seeing the prospects ofthetwenty-first century, fail to recognise a heavy burden of moral respon-sibility to do whatever can be done to improve human reality? Must we

deny our feelings of righteous anger at the social evil that plagues the human world, of pity for the immeasurable suffering caused by the acts and omissions ofholders ofpublic power, ofinvincible hope that a better

human world is possible?

1.63 The will to know is a will to power As we conceive what we

perceive, so we speak and so we become ( §§1.7ff above) We think,

there-fore we are To utter a new kind of is-sentence is an act ofpower and,

as an act ofpower, it necessarily engages our moral responsibility, ourresponsibility for the way in which we use our moral freedom, our re-sponsibility for the human world which we choose to make We can, if wechoose, undertake a new journey, the journey from Istopia to Eutopia,

to a new human world filled with the idea ofthe ideal.77

1.64 We have Immanuel Kant to help us, the master ofall those whoknow,78the Virgil who may lead us out ofa world without ends, out ofatragic phase in the long-running human comedy Kant suggested that it

is possible for the rationalising human mind to know the possibility of

rational knowledge.79He suggested that, with our innate and inescapableknowledge ofour own moral freedom, we can know that the duty which

conditions our freedom is the duty to make our will into an agent ofan

hypothetical universal will.80And he suggested that, as organic systems,

our life is the unfolding of purpose and, as thinking beings, it is open

to us to determine our purposes in the light ofvalues and ideals.81Torecognise such ideas as a theory oftheory within the making ofhumanreality is to recognise a new potentiality and a new responsibility forhuman beings

1.65 To reconceive human reality is to make a new human worldand unmake an old human world To affirm is to deny To conceive of

77 On the Eutopian project, see further at§§ 5.63ff.

78Dante said this ofAristotle: Divine Comedy – Inferno, canto iv, line 131.

79Critique of Pure Reason (1781). 80 Critique of Practical Reason (1788).

81Critique of Judgement (1790).

theory as the capacity ofthe human mind to create and to re-create the

human world is to deny the idea that theory is nothing more than an illusion generated by practice (the present chapter) To conceive of law

as a complex form of rationality available to serve an unlimited variety

ofhuman ends is to deny the idea that law is merely an act ofwill of institutional power (chapter 2 below) To conceive of globalisation as

the universalising ofthe potentiality ofsociety-under-law is to deny

the idea that international society is merely an aggregation ofnational societies (chapter 3) To conceive of society as the product ofa process of

human self-constituting-in-consciousness is to deny the idea that society

is merely an institutional arrangement ofsocial power (chapter 4) To

conceive ofa new human enlightenment is to deny that humanity is

doomed merely to repeat its past (chapter 5)

1.66 To conceive ofthe European Union as a new kind ofhuman

society, intermediate between the state-societies and the society

ofall-humanity, is to deny the idea that the EU is doomed to be a tepid

con-fusion of diplomacy and democracy (chapter 6) To conceive of the

self-constituting of the EU as a dialectical struggle among different

con-ceptions of society is to deny the idea that the EU is condemned to be a

super-state or to fail (chapter 7) To conceive of the EU as the product of

a particular process ofself-constituting within the historical experience ofEurope is to deny the idea that the EU is merely an instrumentally

determined institutional artefact (chapter 8) To conceive of the EU

as a reconstituting ofan accumulating European self-consciousness is to deny the idea that the EU is doomed to be merely a system of European

government, an alien presence in the minds ofthe people ofEurope(chapter 9)

1.67 To conceive of international law as the true law ofa true national society is to deny the ideas that international law is not law or

inter-is not the law ofa society (chapter 10) To conceive ofhinter-istory as a

possi-ble story ofall human collective self-constituting is to deny the idea that

there is not, and cannot be ,a history ofinternational society (chapter 11).

To conceive ofthe institutional arrangements ofinterstatal international

society as possible institutions ofan international society-under-law is

to deny the idea that international government is merely the

externalis-ing ofnational government (chapter 12) To conceive ofthe history of

interstatal society as the history ofthe abuse of public power is to deny

the idea that diplomacy is the natural default-system for organising a world of‘states’ (chapter 13) To conceive ofinternational society as the

society ofall human beings, and the society ofall societies, is to deny

the idea that the human world is a state ofnature in which all human

beings must continue to pay the terrible price ofunsocialised power(chapter 14)

The phenomenon oflaw

I Making sense of the law Lawyers and legal philosophy

It is surprising that social philosophers and sociologists feel able to offer nations of society which do not assign a central place to law It is surprising that legal philosophers and lawyers can speak about law as if legal phenomena were self-contained and capable of being isolated from social phenomena in general Law seems to have a special status among social phenomena by reason of its forms,its rituals,its specialised language,its special rationality even,and its specific social effects But,on the other hand,law is clearly embedded in the totality of the social process which is its cause,and on which it has a substantial determinative effect,not least in providing the continuing structure of society, its hardware programme.

expla-Legal philosophy is law’s own self-philosophising,another closed world, familiar to some lawyers,more or less unknown to general philosophers and social scientists.

II The emerging universal legal system The law of all laws

Law is a universal social phenomenon – or,rather,legal systems seem to be, and to have been,a characteristic feature of social organisation The ancient debate about whether law is a single generic phenomenon with countless local specific forms has never been resolved That debate is now being overtaken

by new real-world developments.

National legal systems are beginning to merge as a result of forces acting from two directions On the one hand,there is a dramatic increase in interna- tional legislation and collective government,including socially sensitive law (international human rights law),socially transformatory law (international economic law and administration),and socially structural law (international public order law).

36

On the other hand,the greatly increased volume of transnational actions,especially economic transactions,means that national legal systems are operating more and more in relation to extra-national situations,and that the structures and substantive contents of national systems are tending

trans-to converge.

III Deliver us from social evil International criminal law

and moral order

Our experience of extreme social evil is the most painful psychological den that we have inherited from the twentieth century Social evil arises

bur-as a totalised product of the functioning of social systems The problem

is that a social system is not a moral agent and,although particular dividuals who are principal actors in a social situation may seem to bear exceptional responsibility for social evil,it does not seem right to attribute that responsibility to them in isolation from the social situation But human society,especially the international society of all-humanity,cannot begin

in-to redeem itself unless it can find a way in-to reduce the incidence of social evil.

There is a trend in international society which seeks to attribute to uals,not merely moral responsibility,but some form of criminal responsibility, national or international,for extreme acts of social evil The policies which justify the crudities of the criminal law in national societies – deterrence, retribution,rehabilitation – depend on ideas which are inseparably linked with the total value-system of a given society International society is not ready for such a thing.

individ-Crude extrapolation to the global level of the criminalising of the social conduct of individuals is a cynical distraction from the true problem, that is,the problem of the evil done by evil social systems The solution to that problem lies beyond the proper limits of law and legal systems.

anti-I Making sense of the law Lawyers and legal philosophy

Law’s reality

2.1 What is law? A mystery to many people who are not lawyers, thelaw is a puzzle to itself The citizen is deemed by the law to know the law

Ignorantia juris haud excusat.1As a citizen, even the lawyer is deemed toknow the law As a lawyer, the lawyer knows that law is not a thing thatcan be known All that the lawyer knows is forms of legal perception.

To learn the law is not to learn law but to learn to be a lawyer To be alawyer is to live through a particular looking-glass, inside a law-worldwith its own law-mind and its own law-reality

2.2 It is not easy to communicate any worthwhile concrete sion ofthe elusive inner world ofthe law, which is the familiar everydayworld ofthe lawyer Consider the following five legal puzzles

impres-2.3 (1) Does section 1 ofthe (British) Criminal Attempts Act 1981mean that you are guilty of an offence if you attempt to commit anoffence which is impossible but which, at the time, you did not know

to be impossible? In 1985 the House ofLords thought not ProfessorGlanville Williams, ofCambridge University, disagreed strongly in an

article in the Cambridge Law Journal In 1986 the House ofLords changed

its mind

2.4 In the 1985 case the accused had bought a video recorder lieving it to have been stolen In fact there was no evidence that it hadbeen stolen The House ofLords agreed with the magistrates, who haddismissed the case, that the mistaken beliefofthe accused could notturn her behaviour into the offence of dishonestly attempting to handlestolen goods In 1986 the House ofLords upheld the conviction ofaman for dealing with and harbouring a controlled drug The man hadbelieved that the substance in the suitcase which had been delivered tohim was illegally imported heroin or cannabis In fact the substance wassnuff or some similar harmless vegetable matter On this occasion it wasevidently the accused’s own admission ofhis own mistaken beliefthatcaused him to be convicted of a criminal offence

be-2.5 (2) Do you commit the offence of conspiracy under the (British)Criminal Law Act 1977 ifyou take part in arranging the escape ofsome-one from prison with the intention to deceive your co-conspirators and

to leave the country before the escape is effected, taking the money youhave been paid in advance?

2.6 The statutory definition ofconspiracy requires that the ment among the conspirators must necessarily involve the commission

agree-of an agree-offence ‘if the agreement is carried out in accordance with their

1 ‘Ignorance ofthe law is no excuse.’

intentions’ In 1985 the House ofLords answered the question in theaffirmative ‘Intentions’ did not mean the several intentions of the dif-ferent conspirators But the House of Lords indicated that this wouldnot necessarily mean that ‘some innocent person’ would be regarded ascommitting the offence if he collaborated in a conspiracy, which hadcome to the notice of‘the police or ofsome honest citizen’, with theintention ofexposing and frustrating the criminals involved No doubtthere are other interesting distinctions to be found in the single phraseabout ‘intentions’ in the 1977 Act For instance, it would be interesting

to know whether you could commit an offence of conspiring with ers to defraud yourself, you yourself sharing the intention of the otherparticipants to defraud someone but not their intention to defraud you.2.7 (3) Ifthe local authority building inspector inspects the founda-tions of a house before they are covered to see that they satisfy buildingregulations, can you claim damages from the local authority if he makes

oth-a negligent inspection oth-and the house, ofwhich you oth-are oth-a subsequentowner, eventually proves to be unsound?

2.8 The relevant legislation did not expressly provide for such aclaim In 1972 the Court ofAppeal answered in the affirmative In an-other case in 1977 the House ofLords agreed with the Court ofAppeal’sconclusion but placed that conclusion on its ‘correct legal basis’ In 1972Lord Denning had stressed the novelty ofthe case It was a statute of

1936 (the Public Health Act) which had created the relevant buildinginspection scheme, but apparently no one had previously made a claimagainst a local authority in respect ofthe negligence ofits inspectors.Lord Denning placed the claim in the context ofa series ofcases inwhich the courts have imposed a common-law duty (that is to say, notderiving from any statutory provision) of reasonable care on people whocause loss or damage to those who rely on their expertise and to otherswho suffer loss or damage from a failure to use such care in the exer-cise ofsuch expertise by the manufacturer ofginger beer in relation tothe ultimate consumer (decision in 1932); a merchant bank in relation

to a customer ofa bank which had obtained from the merchant bank

an opinion on a fourth party’s creditworthiness (decision in 1963); theHome Office in relation to a yacht-club whose property was damaged byBorstal boys2who had not been properly controlled (decision in 1970)

2 ‘Borstal’ was formerly the name of a young offenders’ penal institution in the United Kingdom.

2.9 The House ofLords analysed the series ofcases referred to byLord Denning but preferred to see the duty in the case of building in-spection not as the general common-law duty ofcare but as a specialduty ofreasonable care attaching to the statutory power to inspect, theduty being to exercise reasonable care to see that the building regulationswere complied with In the merchant bank case, Lord Devlin said that

he would not himself offer a statement of the general rule on liability insuch cases, but was prepared to accept any of the (four different) state-ments of the other Law Lords in the case and Lord Denning’s (different)formulation of it in a case in 1951 In a case in 1984 the House of Lordswarned against ‘the tendency in some recent cases to treat as beingthemselves ofa definitive character’ the syntheses ofearlier cases made

by the House ofLords in the Borstal boys case and the building inspectorcase

2.10 (4) (Case A) In 1941 the Home Secretary, Sir John Anderson,determined that a certain person who called himselfLiversidge was aperson ofhostile associations and ordered that he be detained underRegulation 18B ofthe (British) Defence (General) Regulations 1939 Tohave legal authority to do so, the Secretary ofState was required to have

‘reasonable cause to believe’ that the person was ofhostile associations.Could the courts, on application by the detained person, consider anddetermine whether the Home Secretary had in fact had reasonable cause?2.11 The House ofLords said no The matter concerned somethingessentially within the knowledge and exclusive discretion ofthe HomeSecretary It was enough ifhe were acting on what he thought was rea-sonable cause and in good faith Dissenting, Lord Atkin thought that thephrase ‘ifA has reasonable cause to believe’ is like the phrase ‘ifA has

a broken ankle’ The latter phrase does not mean ‘ifA thinks he has abroken ankle’ He said that he knew ofonly one authority which mightjustify the method of construing the phrase adopted by the majority

ofthe House ofLords, namely, Humpty Dumpty, Through the Looking

taking off ? The government considered such behaviour to be prejudicial

to the safety or interests of the state You considered that it would, onthe contrary, serve the safety and interests of the state by helping tobring about nuclear disarmament How could the courts judge betweensuch views? The House ofLords held that the purpose which the 1911Act had in mind was the immediate purpose (entering the RAF stationand so on) not the ulterior purpose lying behind that purpose (to bringabout nuclear disarmament) To judge whether the relevant purposewas prejudicial to the interests ofthe state was a matter for the courts.Ministers do not ‘have any inherent general authority to prescribe tothe courts what is or is not prejudicial to the interests ofthe State’ To

hold otherwise would mean that ‘the reasoning in Liversidge v

Ander-son would, in effect, be part of the common law instead of the exegesisofan emergency regulation’ However, the methods ofarming the de-fence forces and the disposition of those forces are at the decision of HerMajesty’s Ministers for the time being It is not within the competenceofa court oflaw to try the issue ofwhether it would be better for thecountry that the armament or those dispositions should be different Inother words, the courts, rather than the government, should determinethe legal question ofwhat is prejudicial to the interests ofthe state butshould not treat as a matter ofjudicial decision what is the best way

of arming the armed forces In all normal circumstances, therefore, thecourts should, as courts oflaw, decide that that behaviour is prejudicial

to the interests ofthe state, within the meaning ofthe 1911 Act, whichinterferes with what the government, as a matter of policy, determines

to be the way ofarming the forces

2.13 (4) (Case C) In 1984 the House ofLords had to considerwhether it should accept the government’s judgement on the threat

to national security which might have resulted from consulting tain interested persons before issuing instructions which would lead topreventing employees at a government communications establishmentfrom belonging to a trade union

cer-2.14 The House ofLords decided that a court could require dence from the government that its decision not to consult was based

evi-on reasevi-ons ofnatievi-onal security, but would treat the questievi-on ofwhether

or not the reasons ofnational security were adequate to justify the sion as being a non-justiciable question Lord Diplock said that nationalsecurity is the responsibility ofthe executive government ‘What action

deci-is needed to protect its interests deci-is, as the cases cited by my noble and

learned friend Lord Roskill establish and common sense itself dictates,

a matter on which those on whom the responsibility rests, and not thecourts ofjustice, must have the last word It is par excellence a non-justiciable question The judicial process is totally inept to deal with thesort ofproblems which it involves.’

2.15 (5) In 1868 the Fourteenth Amendment to the US constitutionwas adopted, providing that ‘no State [ofthe United States] shall deny

to any person within its jurisdiction the equal protection ofits laws’

In 1896 the US Supreme Court decided that racial segregation laws inthe southern states, ifthey treated black citizens as separate but equal,did not violate the equal protection clause In 1954 the Supreme Courtdecided that racial segregation failed to provide equal protection andthat it should be terminated ‘with all deliberate speed’ The Court saidthat, ifits decision was inconsistent with the 1896 decision, then the laterdecision could be regarded as having overruled the earlier decision.2.16 Five features of these examples may be readily apparent

(1) They use ordinary language (innocent, purpose, reasonable,

inten-tion, equal ) in a special way It seems to be a private language which must

have evolved alongside the mainstream ofthe English language Therewould evidently be little point in a non-lawyer trying to enter the legaldebate using the same terms in their ordinary-language meanings.(2) They seem like the reports ofa game Evidently those taking partare extremely serious-minded They remind us ofthe serious little Swisschildren whom Jean Piaget lets us observe Evidently there are rules ofthe game – a sort ofrationality parallel to the rationality ofthe everydayworld But, once again, it might not be fruitful for an outsider to join inthe debate using everyday rationality

(3) They seem to be above but not beyond politics They are clearlydealing with difficult social problems and making difficult social choices,and yet the discussion is not in ordinary political terms Once again,

we seem to be observing some parallel activity to everyday politics,

a purified sort ofpolitics, above the fray, Olympian in aspiration or,

at least, in tone

(4) They seem to reveal a notably dynamic activity Nothing seems

to be fixed or clear or final Everything is open to further argument,reclassification, reconceptualisation, reinterpretation, re-evaluation.Everything is on the move from the past to the future (which will nodoubt contain further, different decisions) What was seemingly the case

at one time (the effect of a statutory provision or a court decision or,

at least, perceptions of that effect) is apparently not the case at anothertime

(5) They seem to be progressive There is some sort ofnegative entropy

at work Those involved seem to regard each decision as an increase inthe quality ofthe system or, at least, as designed to achieve such anincrease Each state ofthe law seems to be intended as a surpassing ofwhat has gone before which had itself surpassed something else – betterunderstanding, better conceptualisation, better judgement There seems

to be a sense ofdirection in this ceaseless negation ofnegation, even ifthere is no obvious goal, a constant effort at greater orderliness in theface of the infinite variety and natural disorder of real-world facts, aninstance, perhaps, ofwhat Immanuel Kant had called the ‘purposefulpurposelessness’ oforganic systems

2.17 Such immediate impressions would be correct impressions ofthe inner world ofthe law To the lawyer law is a series ofpossible rep-resentations ofsomething in the past and a series ofrepresentations ofpossibilities in the future The superficial appearance of the law-world

is, like the superficial appearance ofthe physical world, the appearanceofa collection ofdiscrete objects which are for some practical purposesregarded as static and self-standing Legislative texts and decided casesare set out in a standard form in codes and statute-books and law reportsand treatises and textbooks, like two-dimensional pictures ofa putativereal-world which has a form which corresponds to, if it is not fully rep-resented by, such pictures But there is no fixed object, no settled realitywhich corresponds to the legislative text or the decided case Every statu-tory provision and every reported decision ofa court may be supposed

to have an efficient cause, located in the real-world of Parliament and thelaw-courts, and every other kind ofcause in the total system (practiceand ideology) ofsociety, in the physiology and psychology ofhumanbeings, and ultimately in the whole structure ofthe material universe.But legislative texts and reported cases are not themselves the law They

do not even contain the law The law is somewhere else and somethingelse The reality ofthe law is the reality ofbeing perceived as law.2.18 Every apparent object in the law-world – every apparent rule oflaw – is merely a transient wave in the field oflegal forces which extendsacross the whole ofthe law and, beyond that, to the whole structure ofcausation which determines the successive conjunctures ofthe particular

field offorces which is the law The lawyer is the privileged observerwithin the field oflegal forces It is the interaction ofhis perceptionwith those forces which constitutes the reality of the law It is not thelawyer’s perception which makes the law But there is no law withouthis perception oflaw It is not the law which the lawyer perceives Butthere is no law unless the lawyer perceives something separate from hisperception And that something – the other which the lawyer perceives –includes not only the statutory provisions and decided cases; it alsoincludes the perceptions ofother lawyers.

2.19 This relativity ofthe law means, on the one hand, that the isting field oflegal forces provides the possibilities oflaw It means, onthe other hand, that, in perceiving the law, the lawyer modifies the fu-ture possibilities oflaw From the existing possibilities oflaw the lawyerdetermines the future possibilities of law The categories in which thelawyer knows the law-world are the forms ofhis perception ofit andthose forms of perception are themselves liable to be modified by theperceptions ofthe law which other lawyers have had Statutory pro-visions and decisions ofcourts are mediating structures between thewhole system ofsocial causation which causes them and the lawyer whoperceives them, but the lawyer also perceives the perceptions ofthosestructures by other lawyers and their perceptions ofthose perceptions

ex-In this way the multi-dimensional network ofthe law grows organicallyand exponentially in internal and self-organising complexity

2.20 The ‘real’ reality behind the perceived reality ofthe law-world

is thus, like one view ofthe reality ofthe physical world, a ical reality which can never be known otherwise than as hypothetical.The trouble is that the elusive hypothetical reality ofthe law producesdramatic real-world effects If rules of law have causes in society whichcause the field oflegal forces to take on transient states ofactuality inthe minds oflawyers, then those transient states perceived by lawyersact, in their turn, as very efficient causes in the world beyond the law,transforming the very non-hypothetical lives of very real citizens Thedoor ofthe prison-cell is bolted The fine and the damages are paid.The keys ofthe house are handed over The deceased person’s property

hypothet-is dhypothet-istributed The employee hypothet-is dhypothet-ismhypothet-issed The child hypothet-is taken from hhypothet-isparents The convict is executed

2.21 The law mediates between two less hypothetical realities – thesocial forces which generate the law and the social events which the

law generates The law mediates reality through obscure mental events

in the minds oflawyers The citizen is deemed to know the law He

is not expected to know the mind ofthe lawyer And yet his life may

be transformed by the mind of the lawyer To use Jeremy Bentham’simage, men are killed by judges for not having guessed the judges’dreams

2.22 Not all lawyers are aware ofthe strangeness oftheir enterprise.Most lawyers feel no need to make any further sense of it But somelawyers have found it necessary to seek some higher-level rationalisa-tion oftheir activities The result has been the development ofa seriesofspecialist legal philosophies intended for consumption by lawyers –in-house, esoteric, hermetic, private legal philosophies Over the lasttwo centuries, there have a number ofleading brands ofspecial legalphilosophies in the Anglo-American legal world They have had, andwill continue to have, an important effect on the self-consciousness oflawyers and thereby a significant effect on the development of societyand on the life of every citizen

Lawyers’ philosophies

2.23 An attempt has been made above to give an impression ofthestrange inner world ofthe lawyer, with its special relativistic reality,separate from, but parallel to, the rest of social reality and in which arule oflaw is best regarded as a sort ofprobability-wave, transient butundetachable from the total reality Immersed in this special reality andliving it as the everyday reality oftheir professional lives, lawyers in theAnglo-American law-world have found it necessary, over the last twocenturies, to invent their own specialised form of legal philosophy.2.24 These special legal philosophies have four common character-istics (1) Each ofthem creates a model ofthe law in terms ofwhich thepeculiar phenomena ofthe law may be seen to be orderly and rational.(2) They do so by stressing one or other familiar feature of the law asits salient characteristic, making that feature axiomatic, so that otherlegal phenomena become explicable more or less derivatively (3) Interms ofintellectual method, they appeal to a sort oflegal commonsense They depend on the introspection ofthe lawyer and his willing-ness to look sensibly and coolly at the legal phenomena with which he

is perfectly familiar and to assent to reasonable explanations when he

hears them (4) Accordingly, their value is pragmatic (helping the law

to improve its functioning) or heuristic (helping the law to improve itsself-examination) rather than philosophical (purporting to offer someexplanation which coheres with all higher-level explanations) They donot claim to be contributing to the mainstream ofgeneral Western phi-losophy They ignore, or mention only incidentally, all the traditionaland daunting problems ofphilosophy, especially the problems ofepis-temology, moral philosophy and social theory They also ignore thestudy oflaw made by other disciplines, especially anthropology andsociology.3

2.25 William Blackstone (1723–80) served several useful intellectualfunctions, not the least of which was to ignite Jeremy Bentham But hisinfluence on lawyers is still far from finished In a time of revolutionaryintellectual and social change he managed to convey to Anglo-Americanlawyers an aristocratic beliefin two things which were above time andcircumstance – a common law and a parliament whose numinous powercame from their deep roots in English history Blackstone is the Livy,the Cicero and the Newton ofAnglo-American law English law is notnecessarily irrational for being disorderly The disorder of English law

is not its true reality, when the underlying pattern ofits development

is brought to light A constitution is not only the axiomatic source oflaw The constitution is a temple The law ofthe judges and the law ofparliament are the admittedly human voices ofpriest and prophet Thehistory ofEnglish law is its future Understand the true nature oftheconstitution, as a developed organism, and you will understand the law.Legislators and judges and practising lawyers and legal commentatorsmight thereby all increase in legal virtue

2.26 Blackstone was thus a representative figure ofthe century Enlightenment He believed in a historism which was notnineteenth-century historicism It was history as the study ofcauses notofiron laws He believed in the enlightening power ofknowledge Hebelieved in the possibility oforder discovered in the depths ofdisorder

eighteenth-3 One school oflegal thought in the US seeks to establish a close link between law and nomics (and hence puts itselfoutside our present class ofself-contained lawyers’ philoso- phies), seeing law-behaviour as essentially analogous to economic behaviour in a sort of law-market And there are many examples oflateral legal study with titles having the generic form ‘law and such-and-such’ which seek to build inter-disciplinary bridges rather than to create universalising theories oflaw.

eco-Like his contemporary Edmund Burke, he believed in the wisdom ofthe natural He gave a Roman self-confidence to English and Americanlawyers in the special rationality and dignity oftheir work, allied with aRoman piety together with an earnest purpose ofimprovement.

2.27 John Austin, writing in the early 1830s, was a pale shadow ofthedepressing Thomas Hobbes and the manic Jeremy Bentham – Hobbesand Bentham made safe for healthy practising lawyers Bentham, whoseideas and influence went far beyond the special philosophical problemsoflawyers, had turned Blackstone on his head For Bentham and Austin,the law was, indeed, capable ofbeing a rational science But the law’sfuture did not lie in its past The past was full of lessons, almost all ofthem lessons by way ofnegative example Legislation – intentional law-making – was to become the general paradigm oflaw Legislation wasreason made law Law is made by an act ofwill, not found by an act ofmagic Austin reduced these ideas to simple formulas, comprehensible

to the most unintellectual oflawyers Law, as Hobbes had long since said,was to be seen as a species ofcommand whose validity derived from thefact of the sovereign’s power and the fact of the subject’s obedience Thecommon law was a law tolerated by the sovereign and, therefore, wasrightly to be regarded as ersatz legislation, the continuation oflegislation

by other means The idea-complex ofsovereignty, command, sanctionand obedience was all the lawyer needed to know about the theory oflaw.2.28 What came to be called Austinian legal positivism was thusthe means by which the general cultural phenomenon ofpositivismwas allowed vestigially to affect the minds of lawyers Law could be ex-plained without reference to the extra-legal, the mysterious, the ideal

or the moral The Austinian orthodoxy was also prophetic, as the partlyreformed parliament (after 1832) became, or came to seem to be, theengine for the revolutionary transformation of British society The com-mon law could take on a new dignity by association ofideas and by join-ing in as a vigorous partner ofthe new, purposive law-making Givingpractical effect to the will of parliament and, thereby, to the will of thepeople could also be a dignified task In the last quarter ofthe nineteenthcentury, the court system was rationally reformed, the law-reports wereproperly established, and the study ofeveryday law became a regularuniversity discipline, alongside the traditional studies ofRoman law andCanon Law, instead ofbeing a matter to be learned in the four Inns ofCourt The common law could now also take on not only the purposive

character oflegislation but also special qualities ofcomplexity, cation and rationality The common law could now also weave its mysti-fying webs around the unquestionable but too-innocent words emitted

sophisti-as legislation by parliament The result wsophisti-as that the common law began

to take on a quality ofmassiveness and authority which would amazeeven a resurrected Blackstone With the reform of the law at the end of

the nineteenth century, the doctrine of stare decisis, binding precedent,

allowed the common law to take on a significance, so different in degreefrom the traditional respect of the law for ‘decided cases’, as virtually toamount to an innovation The common law, through its self-chosen ruleofprecedent, could aspire to be a truly systematic structure The judgecould take on a new lease ofByzantine authority not only as the logo-thete executing the imperious will ofthe people but also as the oraclespeaking and applying the accumulated wisdom ofthe judges

2.29 Over the same period oftime, law in the United States had dergone a parallel but separate development The numinous character ofthe United States written constitution, drawing from the deep spiritualsources ofthe English unwritten constitution, had long since given to theidea oflaw a unique position in American political self-consciousness.Law is evidently and necessarily the rock on which the American na-tion is built It followed that legal decision-making was necessarily oftwo kinds – the will ofthe people expressed in acts ofthe Congressand ofthe state legislatures; and the judicial process More openly than

un-in England, the judge had to be both arbitrator and decision-maker.Ultimate guardian ofthe constitutional order, the judge must settle dis-putes by choosing between competing claims to the protection oflaw,and he must interpret and apply the constitutional order by deductivedecision-making, applying its generalities to the specific problems ofeveryday life As a result, it was observed from the earliest days of therepublic that the law and the lawyer occupied a special place in Americansociety, as compared with England or the continent ofEurope The lawand the lawyer have a high Blackstonian function to perform in theUnited States but they are to perform that function as an integral part ofthe system ofsocial and political development They are parallel to thedirectly political processes, as in Europe, but they are in no sense remotefrom them The American people and all their institutions are engaged

in the endless process ofmaking the American nation and the judges areparticipating, directly and explicitly and actively, in that process

2.30 Positivism did not cause in the United States the frisson which

it caused in Europe The idea that society might be understood anistically, or at least might be studied mechanistically, had in Europe

mech-an aura oficonoclasm about it, the thrill ofinsulting the gods ofthetribe The gods in question were as much intellectual gods as the godsofreligion In the United States society was much more evidently aman-made and man-determined creation There was no intellectual orpolitical or class necessity to cherish supersensible obscurities So far asthe religious gods ofthe American tribe are concerned, they have, frompre-independence days to the present day, been a tough sort ofgod Theyhave taken the measure ofpositivism The spirit oflegal positivism wasnot difficult to reconcile with the Blackstonian inheritance The preciseformulas of Austin were not appropriate, however, because one of thecentral features of the United States constitution is precisely the absenceofa sovereign The perverse American image ofGeorge III as tyrant haddone its work The separation ofpowers was so ingeniously built intothe constitution of1787 that it is impossible to say that any organ ofthe constitution is supreme (unlike the supposed and mistakenly sup-posed ‘sovereignty’ ofthe Queen in parliament in the United Kingdom).And the historical subtleties surrounding the origin ofthe constitutionmean that, to this day, there can be no simple answer to the question ofthe repository ofultimate power The confederation ofstates became afederal state, but which is master, the states or the United States?2.31 In the first decades ofthe present century, some Americanlawyers suffered a realist paroxysm, a cyclical phenomenon in the his-tory ofWestern philosophy from at least the days ofthe pre-Socratics.One particular form which it took was what has come to be known asAmerican Legal Realism In a spirit which is recognisably also that ofAmerican (philosophical) Pragmatism, American lawyers began to say,what not many Americans had really doubted, that law is not a mystery

Or, ifit is, it is a dispensable mystery Law is what lawyers do Rules oflaware perceived regularities in legal decision-making, especially adjudica-tion, which, like observed regularities in the natural world, may sensibly

be used as the basis for extrapolated predictions Lawyers have a fessional, moral and social duty to be explicit about the considerationswhich go to the making oflegal decisions Adjudication, like legislation,

pro-is a debate followed by a decpro-ision Law pro-is a purposive social phenomenonlike any other To improve law, and hence to improve society, it is only

necessary to see what law is and laws are and, as with any other socialproblem, to do one’s best in co-operation with everyone else.

2.32 Even lawyers were embarrassed by the conscious naivety ofsuch a view, but there is no doubt that it articulated an element in theirunarticulated self-perception What every lawyer knows best is that law

is a practical activity What legislators, judges and lawyers do with thelaw is, in the eyes ofany well-adjusted lawyer, very much more importantthan legal theory, whether ofBlackstone or Austin, seemed to allow Itmight be said that there was also a ‘return to American values’ aspect ofthe new approach It echoes, implicitly ifnot explicitly, the populist andegalitarian and secular elements in the American political consciousness.2.33 Realism was a luxury which Britain could not afford – in thefirst decades ofthe twentieth century any more than at any other timesince the days ofthe British Solon, King Alfred, in the ninth century.British politics has never been able to bear too much reality Britain lives

in a perpetual state ofsuppressed revolution Vague, collusive fantasiesare the still-point ofa turbulent political world In such a context, po-litical realism ofthe social-engineering variety is not possible Politicalchoices present themselves as choices ofideas, not choices ofpracticali-ties Naive pragmatism, the optimistic beliefin a society in which law is

a series ofopen agreements openly arrived at, has simply not been able as a philosophical choice What was observed in the first decadesofthe twentieth century was that parliament had, indeed, proved to be

avail-an excellent instrument ofsocial chavail-ange but that the executive bravail-anchofgovernment had now taken power over parliament and thus that thesupposed ‘sovereignty’ ofparliament had become available to the polit-ical party, and especially its leader, having a bare majority in the HouseofCommons The people’s power over government now resided, ifany-where, in the infinitely complex new phenomenon ofmass democracy,especially mass-media democracy

2.34 Mass democracy elsewhere, in the paradoxical forms of fascismand Stalinist communism, certainly took a realistic view ofthe law Thelaw as an instrument ofpower, as the command ofthe sovereign, was

an evident reality It might have been expected that, after 1945, therewould have been a surge ofanti-positivism, a return to some sort ofidealism And, indeed, all over the world constitutionalism, on the modelofthe US constitution, was the instrument ofthe new democratisation ofsome societies and the coming-to-independence ofmany others Human

rights, in national constitutions and in international instruments, were

to be a means ofasserting ultimate values against the practical values ofthe positive law The concept ofhuman or natural or fundamental rights

is not easy to square with legal positivism In many advanced countries,the judges also began to assert the power ofthe law in relation to the vastnew powers ofexecutive government It was recalled that democraticgovernment is also government under the law, a principle which hascome to be called the Rule ofLaw In Britain and the United States,

a whole new area oflaw – administrative law – rapidly developed tobecome a structure ofgreat complexity and sophistication, controlling

in the name ofthe law the powers which legislatures had given to thegovernment in the name ofsocial progress

2.35 Legal theory in Britain took what was, in the circumstances,

a surprising turn In 1961 Herbert Hart published The Concept of Law.

Hart is Hamlet without the King, Austin without the sovereign, Benthamwithout the zeal, positivism without the frisson The paradigm of all law

is not legislation but a rule oflaw Understand why a rule oflaw is lawand you will understand why all law is law A rule oflaw is law because

it satisfies criteria laid down by law Those criteria are themselves rules

of law, but rules whose function is distinguishable from the function ofthe primary rules oflaw They regulate the making and changing andapplication oflaw One ofthese secondary rules might be regarded asultimate, saying what is the ultimate source oflaw although it need notname a ‘sovereign’ But its content is itselfdetermined contingently andextraneously, like the content ofall other rules oflaw It is the form andnot the substance ofa rule oflaw which must satisfy the criteria oflegalvalidity A legal system is a legal system because, as seen from within thelegal system, it has a self-contained systematic coherence The generalrelationship ofthe legal system to the other systems ofsociety (political,economic, moral, religious) is also contingent and extraneous It is not

a necessary constituent ofthe legal character ofthe legal system Ifyouhave a legal system functioning as a legal system, then it must contain astructure ofrules ofthe two kinds, such that the structure coheres andpersists and works

2.36 Once again, this was very much a model which lawyers couldrecognise The legal system ofan advanced society does seem to be re-markably efficient, even though nobody has any clear idea of how theother social systems operate and, still less, ofhow the legal system is