Abstract
Jeremy Waldron takes issue with a core premise of MacCormick’s post-positivistic characterisation of the relationship between law and morality, namely his “reservation principle”, which reconciles the autonomy of law from morality with the claim that the case for integration through law as an autonomous social medium does not require individuals to abandon their own morality. Building on some of Hart’s intuitions on the “thin” intrinsic morality of law and on his opening towards an inclusive legal positivism, MacCormick came to defend the “reservation principle” as a core principle of his political theory in Practical Reason in Law and Morality. Waldron challenges the scope of the reservation principle by considering whether it is justified in all cases, or whether, in some circumstances, it undermines law as an effective means of social integration. He does so by contrasting the implications of MacCormick’s reservation principle and Hobbes’ non-reservation principle in several circumstances. By doing so, Waldron not only problematises one key aspect of the post-positivistic turn of MacCormick (and of discursive theories of law in general, which have shifted the centre of gravity of legal systems from rules to principles), but also reveals the underpinning relationships between law and legal culture which, in themselves, may go a long way to account for MacCormick’s persistent defence of the central role of rules in democratic legal systems, as in the mass of circumstances in which law integrates society, it is rules that undertake the job.
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Notes
- 1.
N. MacCormick, Practical Reason in Law and Morality, (Oxford: Oxford University Press, 2008). All page references in the text are from this work.
- 2.
Kant, Grounding for the Metaphysics of Morals, p. 39 (James Ellington trans., 1981), orienting morality to the concept of a rational being “as one who must regard himself as legislating universal law by all his will’s maxims, so that he may judge himself and his actions form this point of view”. See Practical Reason in Law and Morality, note 2 supra, pp. 19–20.
- 3.
Practical Reason in Law and Morality, note 2 supra, pp. 20, 189 and 197.
- 4.
Ibid., pp. 57–66.
- 5.
Richard A. Posner, “The Problematics of Moral and Legal Theory”, (1998) 111 Harv. L. Rev., p. 1637, at 1688. See, also, Jeremy Waldron, “Ego-Bloated Hovel (a review of Posner, The Problematics of Moral and Legal Theory)”, (2000) 94 NW. U. L. REV., p. 597, at 620.
- 6.
Immanuel Kant, “Metaphysical First Principles of the Doctrine of Right”, in: The Metaphysics of Morals, §44, p. 124 (Mary Gregor trans., Cambridge: Cambridge University Press 1991).
- 7.
See, also, the discussion in Jeremy Waldron, “Kant’s Legal Positivism”, (1996) 109 Harv. L. Rev., p. 1535 (1996); see, also, in Jeremy Waldron, The Dignity of Legislation, (Cambridge: Cambridge University Press, 1999), Chapter 3.
- 8.
The phrase “oblique law-making” is Austin’s: see JW on principles of legislation.
- 9.
For MacCormick’s reflection on this in the context of Kant’s legislative analogy, see Practical Reason in Law and Morality , note 2 supra, p. 65.
- 10.
He comes close to it in Practical Reason in Law and Morality, note 2 supra, p. 204.
- 11.
See ibid., pp. 20–21.
- 12.
Re A (children) (conjoined twins) [2001] Fam 147, [2000] 4 All ER 961 – discussed in Practical Reason in Law and Morality , note 2 supra, pp. 173–181.
- 13.
[2001] Fam at 193, [2000] 4 All ER at 1010, quoted in Practical Reason in Law and Morality note 2 supra, p. 179 (my emphasis). Lord Justice Ward was one member of a three-judge panel deciding the case; the panel decided unanimously, and Lord Justice Ward wrote the Court’s opinion.
- 14.
Later in the book (Practical Reason in Law and Morality, note 2 supra, p. 199), he says: “human beings in the territory of a state are heteronomous in face of the state’s law and the commandments it imposes on them, but they are autonomous as moral agents. This gives each person the final say as to whether or not it is right to knuckle under to legal norms where one considers them to be morally unacceptable.”
- 15.
Immanuel Kant, “What is Enlightenment”, in: Toward Perpetual Peace and Other Writings, (New Haven CT: Yale University Press, 2006), p. 17, at 18 & 23, (Pauline Kleingeld ed., 2006). Emphasis in original.
- 16.
Jeremy Bentham, A Fragment on Government, pp. 98–99 & 101 (F.C. Montague ed., 1891).
- 17.
MacCormick, Practical Reason in Law and Morality, note 2 supra, p. 187.
- 18.
Bentham, Fragment on Government, note 17 supra, p. 101.
- 19.
H.L.A. Hart, The Concept of Law, (Oxford: Clarendon Press, 1994), pp. 210–211.
- 20.
Ibid., p. 211.
- 21.
Practical Reason in Law and Morality , note 2 supra, p. 68.
- 22.
Ibid., p. 93.
- 23.
Thomas Hobbes, Leviathan, (Richard Tuck ed., 1996), Chapter 27, p. 183. (My emphasis.).
- 24.
Ibid., Chapter 26, p. 176.
- 25.
Ibid., Chapters 17–19.
- 26.
I am most grateful to Richard Tuck for discussion of this aspect of Hobbes’s philosophy.
- 27.
Ibid., Chapter 21, p. 151: “If the sovereign command a man, though justly condemned, to kill, wound, or maim himself; or not to resist those that assault him; or to abstain from the use of food, air, medicine, or any other thing without which he cannot live; yet hath that man the liberty to disobey.”
- 28.
See the discussion in: Jean Hampton, Hobbes and the Social Contract Tradition, (Cambridge: Cambridge University Press, 1988). On this ground, Bishop Bramhall called Hobbes’ view an “anarchist’s charter.”
- 29.
Hobbes, note 24 supra, Chapter 27, p. 188.
- 30.
Ibid., pp. 343–345.
- 31.
Ibid., Chapter. 30, p. 232. See, also, Jeremy Waldron, “Hobbes and the Principle of Publicity”, (2001) 82 Pacific Philosophical Quarterly, p. 447.
- 32.
In conversation, Richard Tuck has indicated that he disagrees with me here.
- 33.
What follows is adapted from my paper Civilians, Terrorism, and Deadly Serious Conventions, available at http://ssrn.com/abstract=1346360 and also as Chapter 4 of my book, Torture, Terror, and Trade-offs: Philosophy for the White House, (Oxford: Oxford University Press, 2010).
- 34.
The basic legal principles are set out in Articles 48 and 51 of the First Protocol to the Geneva Conventions. Article 48: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Article 51: “(1) The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. (2) The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. (3) Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.”
- 35.
McMahan, “The Ethics of Killing in War”, (2004) 114 Ethics, p. 693, at 722–723.
- 36.
Ibid., pp. 725–726.
- 37.
Ibid., p. 730.
- 38.
Ibid., p. 730.
- 39.
Ibid.
- 40.
Mavrodes, “Conventions and the Morality of War”, (1975) 4 Philosophy and Public Affairs, p. 127.
- 41.
McMahan, “The Ethics of Killing in War”, note 36 supra, p. 731.
- 42.
See David Lewis, Convention – a Philosophical Study, (New York: Wiley-Blackwell, 2002).
- 43.
So I think McMahan is wrong to say that “if one side breaches the understanding that the convention[…] will be followed, it may cease to be rational or morally required for the other side to persist in its adherence to [it].”
- 44.
McMahan, “The Ethics of Killing in War”, note 36 supra, p. 730. Perhaps, the laws ad bellum can afford to use criteria whose application is more controversial; perhaps they have to. But in their modern form even they strive to avoid the difficulty we are discussing by orienting themselves not to disputable questions of justice but either to authoritative political determinations (for example, UN Security Council determinations) or to circumstances that are thought to be patent and indisputable (like the imminence of attack). The 1967 war in the Middle East and the American invasion of Iraq in 2003 show that we have not wholly succeeded in this: the import of an array of Security Council resolutions can be a matter of dispute and the imminence of attack, justifying a resort to self-defence without authorization, can be a contested matter of judgment. So we do get some irresolvable disagreement over ius ad bellum too, which makes the administration of these norms quite difficult. But imagine the havoc that would result if the administration of the norms in bello were as contestable as this; that might well be the price of making the norms morally more refined along the lines that McMahan suggests.
- 45.
Perhaps McMahan thinks that an administrable approximation to PD2, whatever that was, would still be different from PD1.
- 46.
McMahan, The Ethics of Killing in War, note 36 supra, p. 731.
- 47.
See, also, the “Endnote” at the conclusion of this chapter.
- 48.
Ibid., p. 732.
- 49.
I do not just mean the numbers with regard to any given war, but even the numbers with regard to wars in general.
- 50.
The same is true of the rule about torture. Moral philosophers did not begin holding conferences on torture or manufacturing a prodigious number of “ticking-bomb” hypotheticals to challenge the existing law on torture and to put into circulation their own moral reservations about an absolute prohibition on torture until the prohibitory norm came under pressure. That got the philosophers excited, and although many of them would disavow any intention to destabilize the legal norm, it was inevitable that their discussions and their moral reservations would contribute to the atmosphere in which it came disgracefully close to being abandoned.
- 51.
Or if it is shaken, it will be shaken in an orderly fashion through the House of Lords’ decision coming to be seen in due course as non-viable, and replaced (again in an orderly fashion) by a contrary precedent or by legislation. We have legal processes that can channel moral criticism in this way. Such processes not only reduce the threat to effective legal regulation in this area, actually (as MacCormick emphasised) they presuppose and draw on the moral reservations which people have established in relation to the legal status quo. As Bentham put it in the passage quoted earlier, “if nothing is ever to be found fault with, nothing will ever be mended”.
- 52.
In a footnote to the passages that we quoted above, Bentham said this: “There is only one way in which censure, as upon the Laws, has a greater tendency to do harm, than good; and that is when it sets itself to contest their validity.” (A Fragment on Government, note 17 supra, note 103). He goes on to say this harm is least problematic in the case of written laws, most problematic in the case of unwritten laws, in as much as their identity and authority is never clearly established anyway.
- 53.
See, also, Aristotle’s observations on the relation between law’s constancy and law’s role in habit formation in Politics, Book 2 and the last chapters of Nichomachean Ethics, Book X.
- 54.
For the idea of self-application, see Henry M. Hart & Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law, (Westbury NY: Foundation Press, 1994), pp. 120–121 (William N. Eskridge & Philip P. Frickey eds., 1994): “[E]very directive arrangement which is susceptible of correct and dispositive application by a person to whom it is initially addressed is self-applying. Overwhelmingly, the greater part of the general body of the law is self-applying, including almost the whole of the law of contracts, torts, property, crimes and the like.”
- 55.
In the Crito, Socrates was able to imagine the Laws reproaching him for an escape attempt, saying: “Can you deny that by this act which you are contemplating you intend, so far as you have the power, to destroy us, the Laws, and the whole State as well? Do you imagine that a city can continue to exist and not be turned upside down, if the legal judgments which are pronounced in it have no force but are nullified and destroyed by private persons?” This was because once a legal order was issued, its administration was still primarily in the hands of those to whom it was issued: Socrates was supposed to remain and administer his own execution tonic. Athens had no well established enforcement mechanisms, and it was therefore much more vulnerable to high profile acts of defiance than law is among us. See, also, Kraut, S ocrates and the State, (Princeton NJ: Princeton University Press, 1987).
- 56.
See Waldron, “Kant’s Legal Positivism”, note 7 supra, and also Kant’s Theory of the State, in: Immanuel Kant: T oward Perpetual Peace and Other Writings on Politics, Peace and History, (Pauline Kleingeld ed., 2006), p. 179.
- 57.
In Kant’s declining years, as Hannah Arendt puts it, “the decrease of his mental faculties, which finally led to senile imbecility, is a matter of fact.” (Arendt, Lectures on Kant’s Political Philosophy, (Chicago IL: Chicago University Press, 1989)), p. 9.
- 58.
Kant, “On the Common Saying: That may be True in Theory, But it is of no Use in Practice”, 8: 299 (in Mary J. Gregor (ed.), Applied Philosophy, Cambridge: Cambridge University Press, 1996, p. 298).
- 59.
Wolff, In Defense of Anarchism, (Berkeley CA: University of California Press, 1998), pp. 14–15 (emphasis in original).
- 60.
Ibid., 18: “Insofar as a man fulfills his obligation to make himself the author of his decisions, he will resist the state’s claim to have authority over him…. [H]he will deny that he has a duty to obey the laws of the state simply because they are the laws…. [I]t would seem that anarchism is the only political doctrine consistent with the virtue of autonomy.”
- 61.
John Finnis, Natural Law and Natural Rights, (Oxford: Clarendon Press, 1980), Chapter 9; John Rawls, A Theory of Justice, Revised edition (Cambridge MA: Harvard University Press, 1999), p. 99.
- 62.
Practical Reason in Law and Morality, note 2 supra, p. 199. See, also, note 2 supra, and the accompanying text.
- 63.
Richard Wollheim, “A Paradox in the Theory of Democracy”, in: Peter Laslett & W.G. Runciman (eds), Philosophy, Politics and Society, Second Series, (Oxford: Basil Blackwell, 1969).
- 64.
Re A (children) (conjoined twins) [2000] 4 All ER 961 – discussed in Practical Reason in Law and Morality, note 15 supra, pp. 173–181. See text accompanying note 13 supra.
- 65.
Ronald Dworkin, Law’s Empire, (Cambridge MA: Harvard University Press, 1986), Chapters 6 & 7.
- 66.
Notice that this does not in any way draw on MacCormick’s point, noted in Section 7.1, that moral reasoning is like adjudicative reasoning in various ways. That may or may not be true. The point here is that respectable moral reasoning must actually be a version of adjudicative reasoning, taking into account the moral significance of the same facts that judges take into account (like precedents) and taking them into account in the same way.
- 67.
Ronald Dworkin, Taking Rights Seriously, (Cambridge MA: Harvard University Press, 1977), p. 214. Certainly, this is the attitude that our judges often take. They persist with their dissent from one case to another; they do not simply knuckle under to the majority view.
- 68.
I mean the kind of theory discussed in R.M. Hare, The Language of Morals, (Oxford: Oxford University Press, 1952), and R.M. Hare, Freedom and Reason, (Oxford: Oxford University Press, 1963).
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Waldron, J. (2011). Legal Judgment and Moral Reservation. In: Menéndez, A., Fossum, J. (eds) Law and Democracy in Neil MacCormick's Legal and Political Theory. Law and Philosophy Library, vol 93. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8942-7_7
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