Leslie Green

The Concept of Law Revisited

Law is a social construction. It is a historically contingent feature of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and enforce the primary rules. Law may be beneficial, but only in some contexts and always at a price, at the risk of grave injustice; our appropriate attitude to it is therefore one of caution rather than celebration. Law pretends, also, to an objectivity that it does not have, for whatever judges may say, they in fact wield serious political power to create law. Not only is law therefore political, but so is legal theory there can be no pure theory of law; concepts drawn from the law itself are inadequate to understand its nature. Legal theory is thus neither the sole preserve, nor even the natural habitat, of lawyers or law professors: it is just one part of a general social and political theory. We need such a theory, not to help decide cases or defend clients, but to understand ourselves, our culture, and our institutions, and to promote serious moral assessment of those institutions, an assessment that must always take into account the conflicting realities of life. Those are the most important theses of the late H.L.A. Harts The Concept of Law, published originally in 1961. Like some other great works of philosophy, however, Harts book is known as much by rumor as by reading, so it will be unsurprising if, to some, that does not sound like Hart at all. For what circulates as his views

Two Views of Collective Rights

In this paper, I distinguish two views of collective rights, viz., rights of collective agents and rights to collective goods. My argument is that although both have a place in moral, political and legal argument, only the second can fulfil the political function generally assigned to collective rights, and that even it can do so only partially.

Positivism and Conventionalism

All positivists hold that law has social foundations. According to H.L.A. Hart, for example, the legal system rests on customary social norms followed by judges and other officials: norms that recognize other norms as belonging to the system and norms that provide for the application and alteration of the system’s primary norms. Even if this view requires amendment, it is likely any plausible account of the nature of law needs some account of social norms. Finding a fully satisfactory one, however, has proved surprisingly difficult.

Rights of Exit

Social groups claim authority to impose restrictions on their members that the state cannot. Churches, ethnic groups, minority nations, universities, social clubs, and families all regulate belief and behavior in ways that would be obviously unjust in the context of a state and its citizens. All religions impose doctrinal requirements; many also enforce sexist practices and customs. Some universities impose stringent speech and conduct codes on their students and faculty. Parochial schools discriminate in their hiring practices. Those who complain about such internal restrictions on the liberties of members might well be told to “love it or leave it.”

Authority and Convention

All moder states claim authority over their citizens, and that is one thing which distinguishes them from bands of robbers. The most important locus of authority in the state is law, for it claims to bind many persons, to regulate their most vital interests, and to do so with supremacy over all other mechanisms of social control. Sometimes these grandiose claims are hollow. In a society in upheaval they cannot be made effective and quickly become legal fictions. Even when they are effective they may be unjustified, for legitimacy is not among the existence conditions for a state. However and here is the real importance of Webers celebrated argument a belief in its legitimacy tends to increase its stability and effectiveness. It is therefore a crucial question in what circumstances, if any, such beliefs are justified. In the liberal-democratic tradition, consent has provided the most popular justification for authority, yet its weaknesses are notorious. Hardly anyone does consent to the states authority, and in any case the theory is incomplete without an independent account of the limits of valid consent. (According to Locke, for example, no one can consent to be killed, and thus not to tyranny, and thus no tyrant has legitimate authority, consent or no.) The runner-up is probably contractarianism. Where that involves an actual social contract, it is simply a version of consent theory, with the requirement of unanimity added. In its hypothetical form, political authority is something that rational people would agree to. But this only shows that there is a reason to do what law requires, not that law itself provides the reason. Dissatisfaction with such arguments has led many where it led Hume: to ground authority in social convention. Furthermore, because such conventions are susceptible to a value-neutral definition, this offers a theory which consorts nicely with the view that law is a matter of social fact. My aim in this paper is to show that, in spite of these several attractions, conventionalism cannot justify the authority which law claims.

Two Worries about Respect for Persons

Respect as a political ideal was not always identified with the notion that people are entitled to special regard just by virtue of the fact that they are persons, irrespective of rank or merit. Quite the contrary. The ancestral territory of respect was differential status. Vassals were to respect their lords, servants their masters, children their parents, and wives their husbands. The respect owed was not in response to features that all people share but to special features that distinguish some, and these differences were normally acknowledged by deference to those regarded as superior. The respect that mattered in politics often had less to do with respect for persons than with respect for personages. That sort of respect—a variant of what Stephen Darwall calls “appraisal respect”—also had competition. It coexisted with, and in liberal thought was ultimately subordinated to, the idea that everyone is entitled to a baseline of regard, independent of things like rank, status, virtue, or merit. It now feels natural to think of this sort of regard as a kind of respect. It is notable, however, that when some ancient and modern writers wanted to draw the focus away from personages and toward persons they sometimes also felt tempted to distance themselves from the language of respect. Thus, the biblical translators of the Authorized Version have Peter say that God’s acceptance of the Gentiles demonstrates that he “is no respecter of persons.” And this locution, one of few in which respect still carries a negative valence, occasionally resurfaces when philosophers want to stress the importance of impartial rea-

THE DUTY TO GOVERN

Contemporary legal philosophers have focussed their attention on two aspects of the general theory of authority: the issue of legitimacy (or the right to govern) and the issue of obligation (or the duty to obey). In John Finniss work we have a powerful statement of the importance of a third issue: the problem of governance (or the duty to govern). This paper explores the nature of this duty, its foundations, and its relation to the other aspects of a theory of authority.

Law and Society.

This 53rd volume of Scandinavian Studies in Law (Sc.St.L.) is dedicated to the subject and perspectives of Sociology of law. The volume comprises 22 articles and is divided into five sections: theo ...

Pluralism, Social Conflict, and Tolerance

Ours is a fragmented age. Nationalities, ethnicities, genders, races, sexual orientations and ability statuses all mark lines of social conflict, frame people’s identities, and mediate their attachments to the political system. The “new social movements” seem to have replaced the familiar ideological struggles of the last century and displaced political parties and the state as the main sites of conflict. At the same time, there is a sharpened awareness of what I shall call doctrinal pluralism, the diversity of conceptions of the good, sometimes rooted in broader philosophical or ideological differences. What do fragmentation and pluralism have to do with each other, and what do they mean for politics in democratic societies? Those are the issues I explore in this paper. I have two suggestions, one purely critical, the other positive but also tentative. The critical one is this: many contemporary theorists exaggerate the extent of doctrinal pluralism and overestimate its threat to the stability of democratic government. The positive claim is that the familiar liberal devices for ensuring tolerance must be supplemented and in some areas replaced by strategies that seek to promote wider sympathies towards other people. Although doctrinal pluralism is both real and significant, it is more limited in scope than many contemporary liberals believe: few of the most important social differences involve differences of values; not all value pluralism leads to serious conflict; and some forms of social conflict can be moderated only by leaving behind the tolerance-based model of doctrinal pluralism. Or so I shall argue.

Book Review: Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human RightsMaking Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights. By NickelJames W.. Berkeley, CA: University of California Press, 1987. Pp. xiv + 253.

whether gender, racial, or statist. As I am concerned here with hlarxism I have emphasized the challenge this poses it. But, needless to say, this challenge proceeds in both directions. The second problem is in some ways even more serious. It has to do with the sorts of issues I touched on in the opening paragraph. regarding a historical narrative which has informed the history of hlarxist ethical thinking and political practice, a narrative which has suffered miserably in the twentieth century. Rigby tends to be agnostic on these issues. He almost positivistically warns against the ‘importation’ of ‘subjective moral criteria’ into social research, and insists that ‘it is important to distinguish Marx’s politics and hlarx’s history. Acceptance of hlarx’s historical claims entails no commitment to his revolutionary politics, nor are his revolutionary politics guaranteed by his historical method’ (p. 300). But this seems doubly wrong. hlarx, for one, clearly saw the connection between his historical analysis and his revolutionary politics. The former informed him of the possibility, the desirability, and the necessity of the latter. Such connections, while in no way simple, and certainly incapable of providing political ‘guarantees’, are unavoidable. And, more importantly, they have underwritten the entire history of hlarxist politics. This observation can be put in the form of a question: what becomes of hlarxist ethico-political practice once we abandon the historicist optimism which hlarx shared with his contemporaries and which, conjoined with his specific belief in the rationality of homo oecorzoriiicris, led him and subsequent hlarxists to have such faith in the transformation of capitalism into socialism, and the transformation of socialism into communism, ‘the riddle of history solved’? How can the genuine, and authentic, insights of hlarx about human powers and human emancipation be justified, and incorporated into a convincing praxis, once the sense of historical necessity which grounded them is undermined? I do not have the answers to such questions. But they lie at the heart of contemporary Marxism, and it is the merit of Rigby’s book that his analysis poses them so sharply, even if it fails to directly engage them. One thing is certain, though. Much more is at stake than the academic status of Marxism as a programme of scholarly research. On the question of hlarxism and History hinges the entire modern project of human emancipation. Its disappointing past, its problematic present, and its possible future.