The World Philosophy Made

by Scott Soames

  Because Marx’s descriptions of the communist society that was to follow the revolution were also stated abstractly, they too required interpretation before specific policies could be extracted. The problem wasn’t that Marx explicitly advocated tyranny, but that many of his formulations, especially in Capital, invited it—or, at least made tyrannical interpretations plausible. Kołakowski illustrates this difficulty as follows.

  It was possible to argue as follows: according to Marx all social antagonisms were based on class conflicts. When private ownership of the means of production was abolished, there would be no more classes and no social conflict except that due to lingering resistance of the possessing classes. Marx envisioned that there would be no “mediacy” in the socialist state: this meant, in practical terms, the abolition of the liberal bourgeois separation of powers and the unification of the legislature, executive, and judiciary.… Marx had declared that the state and civil society would become identical.… Marx had said that the negative freedom of the liberal bourgeois tradition [freedom of speech, thought, assembly, etc.] would have no place in a socialist society. As, by definition, the proletariat’s aspirations were embodied in the proletarian state, those who failed in any way to conform to the new unity deserved destruction as survivals of bourgeois society.… By arguing on these lines, the whole Marxist-Romantic theory of unity, classes, and the class struggle could be used (which does not mean this was historically inevitable) to justify the establishment of an extreme despotism which professedly embodied the maximum possible freedom.… In short, the Leninist-Stalinist version of socialism was a possible interpretation, though certainly not the only possible one, of Marx’s doctrine.59

  Does this tyrannical interpretation conflict with significant parts of Marx’s corpus? Yes, especially the earlier parts. But the works of systematic philosophers always contain conflicts. Some reflect changes of mind, while some reflect tensions that are never resolved. This seems to have been true of Marx. Recognizing this, Kołakowski declares Marx neither wholly guilty nor wholly innocent of advocating the most problematic aspects of the Leninist-Stalinist state. His final verdict, as I read him, is complicit, which strikes me as correct.

  Having stated how naturally the tyrannical interpretation arises from some of Marx’s words, Kołakowski closes with this more nuanced judgment.

  It is easy to reply to objections such as these [stated in the above cited passage] that Marx (except perhaps for a short time after the revolutions of 1848) not only did not question the principles of representative democracy but regarded them as a necessary part of popular rule, and that although on two occasions he used the term “dictatorship of the proletariat” … he had in mind the class content of the power system and not, as Lenin did, the liquidation of democratic institutions. It follows that the despotic socialism of history is not socialism as Marx intended it: the question, however, is how far it represents the logical outcome of his doctrine. To this it may be answered that the doctrine is not wholly innocent, though it would be absurd to say that the despotic forms of socialism were a direct outcome of the ideology itself.60

  The Leninist-Stalinist version of Marxism was … one attempt to put into practice the ideas that Marx expressed in a philosophical form.… The view that freedom is measured … by the degree of unity of society, and that class interests are the only source of social conflict, is one component of the theory. If we consider that there can be a technique of establishing social unity, then despotism is a natural solution to the problem inasmuch as it is the only known technique for the purpose. Perfect unity takes the form of abolishing all institutions of mediation, including representative democracy and the rule of law as an independent instrument for settling conflicts. The concept of negative freedom presupposes a society in conflict. If this is the same as a class society, and if a class society means a society based on private property, then there is nothing reprehensible in the idea that an act of violence which abolishes private property at the same time does away with the need for negative freedom tout court.61

  CHAPTER 12

  LAWS, CONSTITUTIONS, AND THE STATE

  The nature of a system of laws: H.L.A. Hart’s The Concept of Law; the role of a constitution in a legal system; a philosophical approach to constitutional interpretation; extra-constitutional change: the administrative state.

  The aim of this chapter is to illuminate what laws and legal systems are in a way that sheds light on two related problems facing modern, democratic societies. One involves a gradual, unmandated transfer of power from democratically elected legislatures to unelected members of the judiciary. The other involves a massive increase in executive power at the expense of both the legislature and the judiciary. The role of philosophy in examining these problems is not to quantify their extent, or to offer detailed solutions, but to articulate conceptual frameworks within which the problems can be assessed and practical solutions can be found.

  WHAT IS LAW?

  The first question in the philosophy of law is What is a law? or, more generally, What is a legal system? We all know that laws are rules of a certain sort, often backed by force, which, when violated, may render one liable to punishment. Thanks to H.L.A Hart, who is widely recognized as the leading philosopher of law in the last century, we now understand that there is considerably more to a legal system than that. In The Concept of Law, he identifies the authority of law as existing between two poles, one deriving from coercion and one deriving from moral and nonmoral value.1 Legal systems do, of course, typically include rules backed by force specifying punishments for violations. But, as Hart points out, they also include rules granting powers to agents satisfying various requirements—powers to make contracts, perform marriages, arbitrate disputes, practice certain vocations, etc. Hart also emphasized that even the criminal code of a legal system amounts to more than a set of commands that are not to be violated. Unlike laws, commands backed by force alone don’t generate obligations. A robber who demands “Your money or your life” may force you to comply. You might say that, having no choice, you were obliged to do so, despite the fact that you had no obligation to obey. By contrast, something in law, beyond its threat of force, does generate legal obligations.

  This leads Hart to morality. Both legal and moral rules classify actions as required, forbidden, or permissible. Often, what is morally forbidden is legally forbidden too. Thus, it’s not surprising that law and morality both generate duties or obligations. But there are differences between the two. Legal obligations arise from a specific type of social rule, which may vary from one jurisdiction to another. By contrast, moral obligations seem to be unconditional, and so based on something more than social convention. Whereas some acts that are legally required in one place might be forbidden in another, the claim that the same act (in comparable circumstances) may be morally right here and morally wrong there (rather than simply thought to be so) is rightly viewed with suspicion.

  As Hart emphasizes, social rules aren’t mere regularities. One may say, “As a rule, American adults drink coffee in the morning,” but this merely reports a habit; there is no rule mandating morning coffee. Genuine rules—of law, morality, etiquette, or of social institutions generally—require sanctions (criticism or worse) for violations. They are also internalized action-guiding rules that many agents recognize as providing reasons for acting. Legal systems contain primary action-guiding rules of this sort that are identified by what Hart calls social rules of recognition, which invest certain institutions with authority to make, to change, and to adjudicate disputes involving the action-guiding rules. In the United States the basic rule of recognition is that laws passed by institutions set up by, and operating in accord with, the U.S. Constitution, and the constitutions of the several states, are to be obeyed unless they have been overturned by recognized constitutional processes. Laws that have this authority are typically seen by many people as providing them with legitimate, even if not always conclusive, reasons for action.2

&nb
sp; What kinds of reasons? Since legal systems specify punishments for violations of criminal laws, one reason to obey them is to avoid punishment. But, according to Hart, this can’t be the sole source of obedience in any genuine legal system. In order to count as a legal system, the authority issuing action-guiding rules must be legitimate, which requires a presumption on the part of a substantial portion of the populace that there are prima facie reasons for obeying the rules, independent of fear of likely punishment for not doing so. Naturally, a system doesn’t cease to be legitimate simply because some people regard some of its rules to be pointless; nor does it lose that status because large numbers find many of its rules to be nonoptimal. Its status as a legal system would be threatened if most of its action-guiding rules either regulated actions widely regarded not to require regulation, or regulated actions understood to require regulation but did so in ways widely seen to be seriously inferior to easily identifiable and easily enactable practical alternatives.

  Conversely, if most action-guiding rules of a putative legal system regulate actions that are widely agreed to require regulation, and the regulations imposed are not widely taken to be seriously inferior to easily imagined alternatives, a substantial portion of the citizens will take themselves to have some reason (perhaps among many) independent of fear of likely punishment for obeying the law. They needn’t have detailed knowledge of the law, nor must their main reason for obeying it be more than fear of punishment. But there must be some influential group, including officials of the system, who do have substantial legal knowledge and who do take themselves to have substantial reasons, not related to punishment, to obey the laws.

  What might such a reason be? One reason for obeying some laws is derived from the mere fact that most other members of the society do. This is obvious when laws codify social conventions to which one conforms because the pattern created by the conformity of others makes it easier, safer, or more advantageous for one to similarly conform. For example, in the United States drivers are, unless otherwise instructed, legally required to drive on the right-hand side of the road. In the UK driving on the left is mandated. In these cases, the fact that others conform provides one with a reason to conform, independent of the threat of legal punishment for doing otherwise (which, though relevant, is secondary). Because the value of coordinated behavior so outstrips the chaos of uncoordinated behavior, most are happy to conform.

  In these cases, different rules would be equally good, if they were obeyed. In other cases, different rules might all be better than having no social rules, even though having certain rules is much better than having others. Consider a rule stipulating that disputes arising from alleged defamation of character be sanctioned by legally regulated dueling rather than by making defamation an adjudicable tort. Presumably both are superior to treating retaliation for perceived defamation to be a purely private matter in which the legal system has no interest. Still, a rule that articulates standards for defamation and impartial trials for adjudicating claims is superior to one that merely regulates the forms of allowable duels. Because of this, a system incorporating adjudication has a greater claim to one’s allegiance than a system incorporating regulated duels. Thus, the authority of a legal system typically depends on more than the mere fact that its way of coordinating behavior is better than having no system of coordination.

  There are at least three sources of support that may play important roles in elevating social rules backed by force to the status of an authoritative legal system. One is prudential: many citizens may judge the system to be as effective as might reasonably be expected in enhancing their welfare and that of those they care about. Another source of legal authority is moral: many may believe (i) that the legal system enhances the general welfare, relative to other achievable schemes, (ii) that the burdens and benefits it imposes are not grossly unfair, and (iii) that the natural rights of all are protected in some important ways. A third source of authority is participatory: a widespread belief that the rule-making process is reasonably representative, and so capable of being influenced by the governed.

  Perfection along any of these dimensions isn’t required. Legal systems vary in the extent to which their authority is dependent on them. When a system ranks high in all dimensions, citizens typically take themselves to have a strong prima facie obligation to obey its laws. However, social rules need not have this level of authority to qualify as a genuine legal system. It is enough that the populace accords some authority to the system’s directives, and believes itself to have some reasons, over and above fear of punishment, to obey them.3

  This aspect of Hart’s view, making it a form of legal positivism, provoked considerable controversy throughout the second half of the twentieth century, and beyond. As a positivist, he insisted that law, like most systems of social rules, can be described and studied without endorsing or repudiating the values the rules encode. In calling certain things laws, one is committed to the nonevaluative claim that some portion of the society endorses values supporting them. Nevertheless, as Hart clearly recognized, there can be individual laws, and even entire legal systems, that are, on balance, evil.

  This didn’t interfere with his recognition that there are deep connections between law and morality. The central purpose of legal systems is to articulate and enforce a code of conduct that allows people to live together. He says:

  [T]he social morality of societies which have reached the stage where this [the morality of a society] can be distinguished from its law, always includes certain obligations and duties, requiring the sacrifice of private inclination or interest which is essential to the survival of any society.… Among such rules obviously required for social life are those forbidding, or at least restricting, the free use of violence, rules requiring certain forms of honesty and truthfulness in dealings with others, and rules forbidding the destruction of tangible things or their seizure from others. If conformity with these most elementary rules were not thought a matter of course among any group of individuals, living in close proximity to each other, we should be doubtful of the description of the group as a society, and certain that it could not endure for long. Moral and legal rules of obligation and duty have therefore certain striking similarities.… [B]oth make demands which must obviously be satisfied by any group of human beings who are to succeed in living together.4

  Hart maintains that legal systems must promote the survival and welfare of the population in order to establish and maintain themselves. Since he insists that the authority of any such system depends in part on the uncoerced acceptance of it as a guide to conduct by many of its members, we may draw two conclusions. First, legal systems promote the survival and, to some extent, the welfare of the governed. Second, they are voluntarily accepted by many in large part because of the perceived good they do.

  Nevertheless, legal systems can suffer from shortcomings that render them evil. For example, they may oppress subgroups.

  Coercive power … established on the basis of authority … may be used to subdue and maintain in a position of permanent inferiority, a subject group whose size, relative to the master group, may be large or small depending on the means of coercion.… For those thus oppressed there may be nothing in the system to command their loyalty, but only things to fear. They are its victims, not its beneficiaries.5

  In addition, even the beneficiaries of a legal system who accept it voluntarily may do so, in part, for nonmoral or immoral reasons.

  [I]t is true that the coercive power of law presupposes its accepted authority [by some]. But the dichotomy of “law based merely on power” [which Hart takes to be a contradiction in terms] and “law which is accepted as morally binding” is not exhaustive. Not only may vast numbers be coerced by laws which they do not regard as morally binding, but it is not even true that those who accept the system voluntarily, must conceive of themselves as morally bound to do so, though the system will be most stable when they do. In fact, their allegiance to the system may be based on many d
ifferent considerations.6

  Hart’s view of the relationship between law and morality may be summarized as follows. (i) Human welfare is greatly advanced by the ability of human beings to live together in communities. Law is necessary for such communities to survive and improve the conditions of their members. Since all legal systems allow us to escape a Hobbesian war of all against all, there is something necessary and good about them. (ii) As a rule, laws governing conduct are general (rather than directed at specific, or even named, individuals); they proscribe or prescribe actions of certain general sorts in conditions of specified types. However, because even immoral or unjust provisions can be stated in these terms, there is no guarantee that a legal system will, on the whole, be morally acceptable. (iii) Even when generally and objectively stated laws are morally good, or at any rate acceptable, an unjust pattern of enforcement—routinely ignoring some specified conditions in some cases, or adding unspecified conditions in others—may lead to serious injustice.

  SEPARATION OF LEGAL POWERS

  In societies with functioning legal systems, behavior is regulated by law. This requires some person or group to be responsible for making the laws, some person or group to be responsible for administering and enforcing them, and some person or group to be responsible for adjudicating disputes about what the law requires, determining the guilt or innocence of those accused of violations, and deciding punishment for those found guilty. In many modern states, these functions are performed by separate and largely independent institutions, typically to prevent too great a concentration of power in one body. Although the ways in which the powers are separated vary in different legal systems, in democracies the legislature, elected by citizens, typically makes the laws, the executive (sometimes elected, sometimes chosen by the legislature) administers and enforces the law, and the judiciary, often appointed rather than elected, adjudicates legal disputes, tries accused violators, and decides punishment (within ranges typically set by the legislature). Since institutional actors naturally try to maximize their own power, each branch of government sometimes encroaches on the others. Hence, the health of a legal system often depends on its ability to minimize such encroachments and maintain the proper distribution of powers.