Overview and Implications

I will finish this chapter with a few general observations about law and its relation to morality.

Once morality has been stripped of objective, real, transcendent qualities and reason exposed as inert, once it is accepted that there are no imposed, given, waiting-to-be-discovered values or logically mandated right types of conduct, it seems natural to ask what morality achieves or does.

Law is similar to the sceptic’s version of morality in being public and political. Law too serves the social function of constraining or redirecting individual conduct. As a society grows larger and more complex the reciprocal practices and felt sentiments need reinforcement; they are insufficient to constrain individual conduct.¹³⁸ Morality is not enough and formal rules with enforced sanctions¹³⁹ are needed. As I have argued there are obvious differences between the two.

The relation between law and morality depends upon one’s view of morality. Certainly on any theory of law there is some relation between the two — if nothing else they are causally linked because law is made, obeyed and infringed by people who share, whether or not they reject parts or all of, a communal morality. But the moral sceptic sees law as a more developed form of constraint on action whose social, public purpose is merely more evident than morality’s. The sceptic rejects the possibility of any laws being ‘right’ or in accord with some ideal rational principle. He rejects all natural¹⁴⁰ law tenets which propound the existence of a ‘higher’ law or some transcendent, independently existing source of validation beyond human artifice and sentiments. An objective moral order accessible to reason does not exist. Humans order their own world; but the evidence is strongly against there being any discoverable ordering ‘out there’ that is right, proper or true; likewise there is no social order whose rightness is somehow logical, or discoverable by reason, intuition, or some dialectical procedure. Law then cannot in any way be a matter of ‘right’ standards. Rather it must be a matter of established practices.

“If any other rule than established practice be followed, faction and dissention must multiply without end”.¹⁴¹ This is both Hume’s acknowledgment of the problem of subjectivity in a world devoid of objective, mind-independent values and his answer to it. The subjectivity and diversity of value, taste and opinion threatens justice, mutual security, indeed social co-ordination.

I have discussed already Hume’s conventional account of how moral rules become established.¹⁴² But in terms of function and status Hume does not isolate morality from law. Certainly his conventional account is meant to apply to the establishment not just of moral rules but as well to what today are generally legal rules, for example those governing the transference of property like prescription (i.e. adverse possession) rules.¹⁴³ The question arises, therefore, of what it means to say law is a matter of established practices. It is uncertain what Hume himself would consider as falling within an established practice. Would he include only gradually evolved, unplanned, conventional standards — not unlike the classical common law — or would he also include explicitly made positive law?¹⁴⁴ His discussion of justice might suggest the former but then where would positive rules be placed? Such deliberately created laws would assuredly not be thought of by Hume as embodying ‘higher’, ‘right’ standards. For the sceptic, positive enactments differ from conventional standards only in their method of creation, not in any status they need or need not claim. Indubitably, in the sense of having been forged by human artifice, these positive rules are nothing but established practices. To my mind, Hume’s focus on conventional, evolved standards — rather than on deliberately made ones — has more to do with his main emphasis being on answering fundamental questions about the nature and status of morality and justice. But whatever Hume himself wished the sense of ‘established practices’ to include, when I say law is a matter of established practices I assuredly do mean to include under that banner custom, case law and statute.

On a more general level, the moral scepticism I defended in Part A of this book affects one’s position on virtually all questions relating to law in its most extended sense as an instrument of social control. I mention but three. For one, my moral scepticism stands opposed to the strong Marxist claim¹⁴⁵ that society is possible without rules governing stable possession and perhaps even personal safety. On my Humean antecedents benevolence is limited and self-interest must be re-directed by rules. If law¹⁴⁶ withers away then so too does civil society.

A second consequence of my moral theory is that 1 reject the notion of ‘positive liberty’ — the notion that one is free only when she acts in accordance with right reason or true values. There simply is no such coherent ideal as ‘true’ freedom or liberty on my moral principles. Liberty, for the second-order moral sceptic, can only refer to the lack of constraints on humans’ inclinations and desires. It is therefore a negative concept, the absence of coercion.¹⁴⁷ For liberty to be something more one must accept the possibility of right, true conduct independent of individual, subjective preferences and inclinations.¹⁴ This, in turn, must rest on the existence of objective, mind-independent values. For the moral sceptic such talk of being coerced to be free makes no sense. And so with a purely negative conception of liberty and freedom — the idea of an absence of constraints — it follows that law serves prima facie to restrain liberty. Any preferred balance between liberty and law thusly will depend upon the individual or body consulted and the attendant circumstances. Law restrains certain conduct but in doing so it frequently vouchsafes other conduct which otherwise would be hazardous. The connection between legal (and for that matter moral) rules and liberty is therefore complex and in constant flux depending upon the interaction of dynamic individual desires, rules aimed at preventing the realisation of some of those desires and the amount of felt constraint engendered.

One consequence of liberty and freedom being thus limited to negative and relative concepts, an absence of subjection to something undesirable, is that any all-out maximizing of liberty will mean the advocating of some sort of minimal governmental structure. Nozick advocates just this and sets up his minimal constraints on the basis of supposed natural rights, morally and logically prior to any positive law.¹⁴⁹ But as I have argued and will elaborate further in the next chapter Hume is no believer in this type of natural law and natural rights. Nor can any second-order moral sceptic accept them and be consistent. So just because some Nozickian follows Hume in seeing justice as procedural and not as aimed at some teleological goal like substantive equality, that in itself provides no reason why the sceptic need reciprocate and desire an all-out maximizing of liberty.

It is true of course that Hume emphasises the exceptionless application of general rules¹⁵⁰ while disparaging the possibility and desirability of absolute equality. Hume recognises¹⁵¹ that enforcing exceptionless rules leads to huge inequalities and that departing from an equal division of resources takes more satisfaction from the poor than it gives to the rich. Nevertheless, says he, any attempt at a perfect equality would be firstly impracticable since even if it could be established, men’s different levels of talent, industry, etc. would immediately break that equality. (Concomitantly, any attempts to check these virtues of talent and hard work, any disincentives, that is, on the scale needed to preserve perfect equality, would impoverish the whole society.) And secondly, were the impracticability not so, or were perfect equality sought regardless, the attempt would be pernicious and lead to tyranny since preventing unequal outcomes of resources requires unequal power and perpetual inquisition.

But relating Hume’s advocacy of exceptionless rules and denigration of the goal of absolute equality to law, 1 note that the first of these implicitly includes an endorsement of that part of the Rule of Law which demands people be governed by general rules known in advance, not by ‘arbitrary’ decisions of others. The second, the attack on absolute equality, is perfectly in keeping with both an awareness of the value of formal, civil equality before the law¹⁵² and of the deficiencies of such purely formal, procedural universalizing in the face of major economic disparities.¹³³ But this Humean position in no way requires the Nozickian minimal state as is evident from Hume’s own discussion of the need for constraining rules of justice. Progressively indexed tax regimes, guaranteed annual incomes, state participation in the economy, and many other forms of wealth redistribution are all consistent with, and can be implemented by, generally applicable rules or laws. Negative liberty is the only intelligible type of freedom for the sceptic; it is not, though, of any prima facie pre-eminence. The quantity of laws and the degree of redistribution desired, in a world in which variable abilities, merits, talents and starting points are empirically obvious, will depend upon the laws’ consequences and the evaluators’ sentiments in the light of those consequences. Thus scepticism need not take sides between negative liberty and absolute equality; it merely notes, as a practical matter, that neither is perfectly possible in society and that the real choice is a mere preference lying somewhere between the two.

My third remark on the relation of law and morality consists in stressing that an acceptance of moral scepticism — with its rejection of the existence of any objective, mind-independent values — indicates nothing whatsoever about a second-order sceptic’s preferred legal or political system. The same scepticism of the status of values that leads Hume to be politically conservative¹⁵⁴ leads also to the radical dissatisfaction of the Critical Legal Studies movement¹⁵⁵ and to the corrosive tenets of deconstructionism. In the cases of those sceptics dissatisfied with existing political systems scepticism is typically used to undermine the set of beliefs supporting the system, including those sustaining an ‘unmerited’ hierarchy and preventing ‘real’ equality and justice.¹⁵⁶ Diametrically opposed to this political view is Hume’s, which seeks to conserve existing standards, values and arrangements for the very and sole reason that such criteria are better than nothing. What is already established, on this view, will generally produce better results than any proposed alternative. The radical subjectivity of human preferences and the strong pull of habit and custom on people will ensure that theoretical improvements of a non- incremental nature rarely turn out for the good in practice.

My own inclinations and views lie closer to Hume’s. While it is true that the content of any political theory can supplement a thorough-going second-order scepticism it seems to me that radicals all too often jettison their sceptical clothing once it has exposed the absence of any ‘real’ basis for existing values and normative beliefs. They then put forward their own equally contingent, unsubstantiated substitutes, only rarely admitting that the new values (e.g. communitarianism rather than individualism, consensus rather than confrontation, equality rather than freedom, ‘femaleness’ rather than ‘maleness’) are just as subjective as those they are meant to replace. Worse, there is almost never any weighing of the likelihood, or projected benefits, of implementing their proposals (say, for example, hierarchy-free social living). Scepticism, having done its job, is put safely away to enable a comfortable, familiar return to ‘rational’ models, ‘right’ standards, ‘true’ ideals and ‘just’ outcomes.

I do not mean by this to be taken as arguing that a conservatism approaching Hume’s is always my preference. Indeed in many ways it is not. But as I shall argue in the next chapter in the context of rights, when we make political or legal changes we must never omit to consider experience, likely consequences and their effects on prevailing sentiments.

I conclude this chapter by re-iterating that law, like morality, is a form of social control. The benefits of living in a community are available only in tandem with constraints on individual action. The formal rules to which I have restricted the concept of law stand separate from individuals’ feelings and sentiments in a way the less formal standards and principles of morality do not. Were the former to incorporate the latter in some fashion such as Dworkin suggests it would become less certain and less determinate — a result 1 shall attribute to Bills of Rights in the next chapter. Yet this preference for separating law and morality, for distinguishing identification from justification, does not prevent law from enforcing some particular set of moral values. It is a fallacy to move from the legal positivist’s analytical separation of the two different types of constraint on action to the conclusion that legal positivists necessarily advocate some form of moral disestablishment. Indeed as morality is the more basic form of social constraint, having some effect on the moulding of individuals in that society, it is difficult to imagine how man-made laws could be completely independent — in terms of content — of prevailing moral standards. The fear that laws will not be used for the enforcement of moral values is a straw man. The real questions are of the extent of any overlap (i.e. how much duplication of moral constraints by the more formal, determinate, tangible, and enforceable legal constraints is desirable or practical?) and of what to do when the two diverge ‘too much’ (z'.e. when one finds herself living in a ‘wicked’ legal system).

The sceptic affords no higher status to morality than to positive legal rules; the former simply appears to be real and mind­independent while the latter, in a different sense, is so. Legal positivism’s separation of what the law is from what it ought to be then provides a natural supplement to my basic second-order scepticism. It affords an accurate description of a legal system, and even of what judges do, while claiming that its distinction of law and morality leads to better results in an evil legal system than the blurring amalgamation of the two which is a part of Dworkinian and natural law doctrines.

Some of the fundamental issues raised in this chapter are now best pursued under the rubric of rights, the subject of the next, and final, chapter of this book.

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