The French Declaration of Human and Civic Rights from 1789 is the first European legal document to ground state laws on the idea of individual human rights.[1] As is well known, the French constitutions built upon the original declaration did not succeed in creating a stable and peaceful French state in the 18.th century.[2] Nonetheless, it is under influence of this document that the conception of public rights of the individual has developed in the positive law of the states of the European continent. Modern France continues to pay tribute to the ideal of the Declaration as the fundament of the republic. It makes up the preamble of the constitution of the fifth and current French republic of 1958. Likewise, the declaration of human rights issued by the United Nations in 1948 relied on inspiration from the original French Declaration. A difference between the UN declaration of human rights and the French Declaration consists in the different legal roles ascribed to human rights. Article 16 of the 1789 Declaration pronounced that any society in which no provision is made for guaranteeing the rights mentioned in the Declaration has no constitution. Thereby the French Declaration thought of human rights as the fundament of any constitutional state. In contradiction hereto, the UN worded human rights as a standard of achievement.

I shall discuss two historically precedent philosophical sources to the French Declaration, namely Thomas Hobbes’ Leviathan (1651) and Jean Jacques Rousseau’s SocialContract (1762). The French Declaration cannot be said to have been inspired directly by Hobbes as it was by Rousseau. The exposition of Hobbes and Rousseau is undertaken in order to come to grips with two paradigmatic examples of how early modern European thought established a tradition of natural rights independent of divine authority. In their political philosophies both Hobbes and Rousseau developed systematic explanations as to the interconnection between natural rights, laws and justice. Hobbes expounded an original conception of natural laws as laws of reason without reference to divine commandment, whereas Rousseau ridiculed the concept of natural law as “established … on such metaphysical principles, that there are very few persons among us capable of comprehending them, much less of discovering them…,” (Rousseau, 1755: 46).

A main difference between Hobbes and Rousseau consists in their view on justice. Hobbes expounded a conception of natural law that lead to the legitimation of an autocratic state power. The apparently paradoxical result of Hobbes’ view is a rejection of the meaningfulness of any conception of justice outside of positive law. Rousseau, on the other side, dispensed with the conception of natural law in order to argue for a humanly and thereby artificially established universal conception of justice that functions as a principle of justice to measure the justice or injustice of positive law in existing states. I shall point to central differences in their political philosophies but argue that these rest on important similarities in their argumentation. As ground-breaking thinkers of early modern political philosophy, Hobbes and Rousseau comprise an important philosophical background for the French Declaration of Human and Civic Rights as well as for the criticism launched against it.

First, I shall look at how Hobbes developed a refined differentiation between natural right and natural law as a foundation for his conception of just sovereignty as an absolute authoritarian state power over the populace. The next step will be to follow how Rousseau turned the tables on Hobbes’ position offering an argument of an original social compact that lead to the sovereignty of the people and their rights. Thereafter the attention is turned to the French Declaration of 1789 and the criticism raised against it by the French feminist and girondist Olympe de Gouge (1748-1793) and the British utilitarian Jeremy Bentham (1748-1832). As a look at the year of death of de Gouge palpably displays, she was one of many victims of the reign of terror of the committee of public security (comitée de salut publique) with Maximilien Robespierre (1758-1794) as its active leader in the period of September 1793 to July 1794. Bentham, looking at the uproar in France from calm Britain, was horrified by the events. There is a slight but important time difference between Bentham’s and de Gouge’s texts. Whereas de Gouge wrote in 1791, as France officially was a constitutional monarchy, Bentham’s criticism of the French Declaration for simply amounting to nonsense upon stilts was written in 1795 after the fall of Robespierre.[3] Thus, Bentham lived to evaluate the values and faults of the French Revolution whereas de Gouge lost her life to its cause. de Gouge, a keen supporter of the Revolution and ally of the girondist faction, was loyal to the idea of a constitutional monarchy. Her alternative Declaration of the Rights of Woman was addressed to the queen, Marie Antoinette. de Gouge argued to develop the revolution further to also encompass women’s political rights by grounding her – at the time – controversial claims for gender equality within a tradition of thinking about human rights as inalienable divine rights. Bentham was a severe critic of almost all aspects of the Declaration. Had he known de Gouge’s argumentation he would have opposed it just as vehemently as he opposed the Declaration of the national assembly. Bentham took issue with the idea of founding juridical laws on a foundation of natural rights. His comprehensive rejection of the conception of natural rights makes him more radical than Thomas Hobbes who – as we shall – see did operate with a concept of natural right.

Two Types of Commonwealth in Hobbes’ Leviathan

In Leviathan Hobbes set forth to explain two manners of transition from the state of nature to an established commonwealth with rule of law. One is “by natural force” which Hobbes called “a commonwealth by acquisition” thereby implying that some person or group had acquired enough power to subdue a people (Hobbes 1651: 121). The other he called “a political commonwealth or commonwealth by institution” (Hobbes 1651: 121). It was founded on the conceptions of natural right and natural law that Hobbes had explained beforehand in his discussion of the state of nature. According to this manner of arguing, human beings in a state of nature could by use of reason envision that they would be better off if they contracted to form a commonwealth ruled by a declared sovereign external to the covenant. We shall come back to the content of Hobbes’ argument, but beforehand it is important to note that Hobbes equated the two ways of moving out of the state of nature into law governed society. According to Hobbes it is irrelevant for the evaluation of a law governed society whether it is founded on a voluntary social contract between all its members or the sovereign power has been acquired by force. The only difference, Hobbes argued, is “that men who choose their sovereign [by way of a social contract], do it for fear of one another, and not of him whom they institute. But in this case [where sovereign power is established by force], they subject themselves to him they are afraid of,” (Hobbes 1651: 138).

A general presupposition of Hobbes’ political philosophy is that the state of nature is worse than any functioning commonwealth. The state of nature entails a “war of every man against every man … [in which] nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law: where no law, no injustice. Force and fraud are in war the two cardinal virtues. Justice and injustice are none of the faculties neither of the body nor mind,” (Hobbes 1651: 90). Hobbes’ conception of the state of nature involves two strong claims about human nature. Firstly, human beings are naturally enemies. Secondly, the animosity between humans cannot be controlled by any other means than domination and concentration of power in the hands of the sovereign (let it be a monarch, an aristocracy or parliament). The equation between the two manners of establishing a commonwealth amounts to an argument that maintains that in order to create peace force is necessary. The origin of the commonwealth does not alter the fact that laws need force in order to be effectively steering human actions.

Therefore, Hobbes argued the important differentiation is between the state of nature and any established commonwealth. The meaning pertaining to words such as justice, good and evil, right and wrong only arises out of the civil laws of the commonwealth and are incomprehensible in the state of nature. The erection of the commonwealth Hobbes compared to the creation of an artificial man. The individual members tie themselves to a commonwealth in order to attain peace and conserve themselves. In the commonwealth individuals “made artificial chains called civil laws which they themselves by mutual covenants have fastened at one end to the lips of that man or assembly to whom they have given the sovereign power; and at the other end to their own ears. These bonds in their own nature but weak may nevertheless be made to hold, by the danger, though not by the difficulty of breaking them,” (Hobbes 1651: 147). Hobbes argued that the individuals living in a commonwealth had consentingly subjected themselves to the civil laws of the sovereign. This subjection amounts to the same regardless whether the sovereign power had been attained through a mutual covenant between all members or by force.

Only in the artificial state of a commonwealth do concepts such as justice, right and wrong obtain any discernible meaning, namely the meaning ascribed to them by civil law. In modern wording Hobbes can be said to argue from a legal positivist point of view. In accordance with the terminology of his times, Hobbes maintained a nominalist understanding of law and justice. There is no such thing as a measure of justice or rightness apart from the civil law of a given society. Predicates such as ‘justice’, ‘right’ and ‘wrong’ obtain their meaning from the formulation of the civil laws in the specific commonwealth. Actions are right or wrong in accordance with positive, civil law, which amount to being right or wrong in accordance with a dominant power that punishes the wrong deed and permits the right. Therefore, it is impossible to compare the relative justness or rightness of different societies. As long as the sovereign power is able to uphold its civil laws, it is legitimate. Justice is an internal feature of actual positive law of a given society.

From a traditional perspective of natural law, the result of Hobbes’ analysis is highly astonishing. Typically, natural law would imply a universal and definite standard of justice by reference to divine commandments. Thus, in order to understand how Hobbes could assert such a position, we need to look closer at his understanding of natural right and natural law.

Natural Right and Justice according to Hobbes

Despite the fact that Hobbes denied any universal measure of justice or rightness across different sovereign states, he did advocate for a conception of natural right. In the first part of Leviathan Hobbes introduced a differentiation between natural right (jus naturale) and natural law (lex naturalis). He defined natural right as ”the liberty each man has to use his own power as he will himself for the preservation of his own nature,” (Hobbes 1651: 91). Natural law Hobbes characterized as ”a precept or general rule found out by reason by which a man is forbidden to do that which is destructive of his life or takes away the means of preserving the same,” (Hobbes 1651: 91). Hobbes’ definitions entail a disparity between natural right and natural law. The natural right is singular and consists in the liberty to self-preservation. Natural law, on the other hand, amounts to an instruction it would be wise to follow. Natural laws are rational guidelines thought up by human reason. Reason obliges the individual human to abstain from self-destructive behaviour and thus the natural laws can be said to unfold and elaborate on the natural right to self-preservation. According to Hobbes the main challenge consists in how to make mutual obligations between people constrain their individual actions.

The natural right to self-preservation is inalienable and constant in the state of nature as well as in any commonwealth. Thus, if the sovereign power of a commonwealth accuses or condemns a citizen to death, the sovereign power is right to do so. But the citizen is “not obliged not to resist,” (Hobbes 1651: 98). Natural right implies for each person “the right to save himself from death, wounds, and imprisonment, … and therefore the promise of not resisting force in no covenant transferred any right; nor is [it] obliging” (Hobbes 1651: 98). Hobbes thus argued that the natural right to fight for one’s own self-preservation overrules the obligation to obey the law. The natural right to self-preservation is inalienable. It implies that “there be some rights which no man can be understood by any words or other signs to have abandoned or transferred,” (Hobbes 1651: 93). In a functioning commonwealth the power of the sovereign is so much greater than the power of the single subject. The sovereign, consequently, can force its will upon the subject. However, if the sovereign power – as is the case in modern Western democracies – abides to a rule of law according to which an accused is innocent until proven guilty, it implies that a guilty citizen may be acquitted if evidence of his guilt has not been proven because he is “not bound to give” truthful testimony to a court (Hobbes 1651: 98).

The natural right to self-preservation legitimises the individual’s attempts to resist force. At the same time, it follows from the absolute power of the sovereign that “whatsoever he [the sovereign] does it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice,” (Hobbes 1651: 124). The sovereign produces the law and it is by the force of the law that the individual members of the commonwealth have escaped the state of nature with its condition of war. This entails that in order to obtain peace the individual subjects in a commonwealth have themselves authorised the demands of the sovereign. Being subject in a commonwealth amounts to “acknowledge himself to be author of whatsoever he [the sovereign] … shall act or cause to be acted in those things which concern the common peace and safety and therein to submit their wills everyone to his will,” (Hobbes 1651: 120). Hence, no actions of the sovereign can be unjust or an injury to the subject. Subjects may hold that the sovereign “commit[s] iniquity” (Hobbes 1651: 124) but they cannot charge the sovereign of injustice since the meaning of justice is defined by the sovereign’s law making.

Natural laws and the Political Contract

Natural law being only a precept or general rule does not contain the same permanence as natural right. Natural law indicates that the individual rationally carries an obligation to comply. From the general precept that it is forbidden to do that which is destructive of one’s own life Hobbes deduced nineteen laws of nature. The first law declares: “that every man ought to endeavour peace as far as he has hope of obtaining it; and when he cannot obtain it that he may seek and use all helps and advantages of war,” (Hobbes 1651: 92). Seeking peace is conducive to self-preservation. If there is no prospect of peace it is, however, rational for the individual to use all means of war. As we have seen, Hobbes held force and fraud to be cardinal virtues in war. Therefore, humans in the state of nature are left in a deadlock that can only be overcome by a common commitment to seek peace but peace seeking needs to be mutually obliging to be beneficial.

The second law of nature says “that a man be willing when others are so too as far as for peace and defence of himself he shall think it necessary to lay down this right to all things and be contend with so much liberty against other men as he would allow other men against himself,” (Hobbes 1651: 92). By way of the second law of nature the individuals in the state of nature can rationally establish a way of overcoming the condition of war. By reciprocally giving up on the natural right to everything the contracting individuals reciprocally win the possibility of peace and cooperation. In this act the individuals oblige each other. Thus the second law of nature points to the possibility of individuals reciprocally entering into a contract. The only problem is that there is no guarantee that the individuals fulfil their part of the contract. Only if individuals actually fulfil the contracts they enter can they gain from them. Therefore, Hobbes’ third law of nature says “that men perform their covenants made: without which covenants are in vain and but empty words and, the right of all men to all things remaining, we are still in the condition of war,” (Hobbes 1651: 100).

By rational thought it is possible to come to realise the beneficial outcome of mutual and reciprocal contracts. But reason only compels rational thought. Through reason we come to realise that we ought to comply with the obligations we freely have entered: “when a man had … granted away his right then he is said to be obliged or bound not to hinder those to whom such right is granted … from the benefit of it. And that he ought and it is his duty not to make void that voluntary act of his own. And that such hindrance is injustice and injury as being sine jure,” (Hobbes 1651: 92-93). Thus we realise that breach of a contract is unjust because it is – as Hobbes calls it – “an absurdity to contradict what one maintained in the beginning,” (Hobbes 1651: 93). Not to fulfil a contract one has freely committed oneself to, is to act against one’s own rationality; it amounts to a simple contradiction and as such it is absurd and irrational.

But reason is weak in comparison to the passions and physical actions. Hobbes discussed this difficulty by setting up a distinction between obligations that bind the inner court of the individual’s rationality or conscience (in foro interno) and obligations that bind the outer court of the individual’s actions or public conducts (in foro externo). Hobbes point was that “the laws of nature oblige in foro interno, that is to say, they bind to a desire they should take place. But in foro externo, that is, to the putting them in act not always. For he that should be modest and tractable and perform all he promises in such time and place where no man else should do so, should but make himself a prey to others and procure his own certain ruin contrary to the grounds of all laws of nature which tend to nature’s preservation,” (Hobbes 1651: 110). Even as a law of reason it cannot be required at all time to perform one’s duty and act in agreement with obligation. For in the state of nature others might not perform their part. If others do not comply, it turns my promise keeping into a self-delimitating or even self-destructive act not supported by the first law of nature. If everybody complies, the laws of nature are indeed “immutable and eternal. For injustice, ingratitude, arrogance, pride, iniquity … can never be made lawful. For it can never be that war shall preserve life and peace destroy it,” (Hobbes 1651: 110). But if men “call [these dictates of reason] by the name of laws, [they do it] improperly. For they are but conclusions or theorems concerning what conduced to the conservation and defence of themselves. Whereas law properly is the word of him, that by right had command over others,” (Hobbes 1651: 1651). For a precept to be a law it needs a force to back it.

The conclusion of Hobbes’ exposition is that laws of nature cannot be called laws in the proper sense of the term if they are not backed by force. Thus, there is no way that rational thinking alone can oblige humans to act in accordance with their promises or freely entered contracts. This further entails that the civil laws founded on the monopoly of force of the sovereign are the only possible representations of natural law. It is through the act of sovereign power that the “rules of property (or meum and tuum) and of good, evil, lawful, and unlawful in the actions of the subjects” are determined, (Hobbes 1651: 125). The right of the sovereign to judge good and evil, right and wrong implies that only the sovereign can resolve “controversies which may arise concerning law either civil or natural or concerning fact,” (Hobbes 1651: 125). At the end of the day it is the sovereign who decides the content of even natural law because natural law would be vain if its only trial took place in the inner conscience of each individual – the obligation in foro interno. As Hobbes plainly puts it: “covenants without the sword are but words and of no strength to secure man at all,” (Hobbes 1651: 117).

The transition from the state of nature to a commonwealth where civil laws can be enforced by threat of punishment requires the concentration of power in the hand of the sovereign. The rational manner of erecting such a sovereign power is through a reciprocal contract: “I authorise and give up my right of governing myself to this man or to this assembly of men on this condition that thou give up thy right to him and authorise all his actions in like manner,” (Hobbes 1651: 120). The contract will be enforced because all individuals give up their rights and transfer them to the external man made sovereign who thereby “had the use of so much power and strength conferred upon him that by the terror thereof he is enabled to conform the wills of them all to peace at home and mutual aid against their enemies abroad,” (Hobbes 1651: 120-21). Thus the contract brings about a transformation of the multitude of individuals into one person governed by the will of the sovereign. This association between all individuals through the law is what Hobbes calls the Leviathan, the mortal god of law ruled society.

According to Hobbes the only inalienable natural right is the right to self-preservation that, nonetheless, may justly be subdued by the sovereign. Any rights the individual subjects of a commonwealth may enjoy are only bestowed upon them by the civil law. The laws are the making of the more or less capricious will of the sovereign. Hobbes put forward a political philosophy that rests on the natural right to self-preservation as an inalienable right and at the same time delivers all possible power to the sovereign who establishes right and wrong, just and unjust. The autocratic rule of the sovereign is normatively legitimised by the contra-factual reference to the much worse situation of living under the condition of war in the state of nature. The civil law enables subjects to be accountable to each other and leaves them in a state of constraint. The only real liberty in the commonwealth according to Hobbes “depends on the silence of the law. In cases where the sovereign has prescribed no rule, there the subjects have the liberty to do or forebear according to his own discretion,” (Hobbes 1651: 152).

In connection with the question of the normative validity of human rights Hobbes’ political philosophy only accepts one human right, namely the inalienable right to self-preservation. It is inalienable because a negation of the right to self-preservation implies a negation of the nature of the human being by simple annihilation of the possibilities of continuous living. This is the meagre positive result. Hobbes’ political philosophy clearly does not have its main significance as proposing positive arguments for human rights. It has, however, immense significance by posing the problem. Hobbes discussed the meaning of natural rights, natural law and obligations exempt from the idea that these are binding because of divine commandment. Consequently, reading Hobbes’ political philosophy forces us to consider what source of authority rights, laws and obligations might have. If we are not satisfied with Hobbes’ answer nor the tradition of natural law reaching back to Augustin that the final source of authority rests in the divine commandments of God, an alternative argument as to why humans comply with promises and laws should be supplied. Rousseau tried to formulate such an alternative.

Rousseau turns the Table on the Relation between Power, Obligation and Right

In the SocialContract Rousseau famously declared “Man is born free; and everywhere he is in chains,” (Rousseau 1762: 181). Human existence in societies paradoxically amounts to the enslavement of the naturally free human being. Hobbes’ recommendation that social order be established by instituting a monopoly of force in the hands of the sovereign amounts in Rousseau’s mind to simply enslaving individuals: “Force is a physical power, and I fail to see what moral effect it can have. To yield to force is an act of necessity, not of will – at the most an act of prudence. In what sense can it be a duty?” (Rousseau 1762: 184). Rousseau was trying to answer the same question as Hobbes, namely how humans come to adhere to laws and what impels us to comply with obligations. But to answer that someone met the terms of a law or complied with an obligation because she was forced to do so or feared punishment was not adequate according to Rousseau: “force does not create right” and furthermore, “we are obliged to obey only legitimate powers,” (Rousseau 1762: 185). Thus the question Rousseau posed was how legitimate authority can be established. And thereby he maintained that justice and legitimacy amount to more than merely civil laws backed by sufficient physical enforcement: “it is an empty and contradictory convention that sets up, on the one side, absolute authority, and, on the other, unlimited obedience,” (Rousseau 1762: 186). There must be a standard of justice and legitimacy to discern the “difference between subduing a multitude and ruling a society,” (Rousseau 1762: 189). This standard Rousseau found in the original social compact which transformed the aggregation of subdued individuals into the association of a people working for the public good.

The social compact consists in its essence in a reciprocal contract between individuals in accordance with the following: “Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole,” (Rousseau 1762: 192). The idea of contracting in Rousseau’s original compact is parallel to Hobbes’ social contract. The main difference being that Hobbes thought the contracting individuals should hand over the sovereignty to an external ruler, where Rousseau argued that the social compact establishes legitimate authority by handing over the sovereignty to the general will of the people produced by all contracting individuals. For Hobbes the social contract entailed the establishment of a society which he thought of as an artificial and mortal god, that constituted its own standard of justice and was legitimated because it freed the individuals from the state of nature. The social compact for Rousseau created “a corporate and collective body, composed of as many members as the assembly contains voters and receiving from this act its unity, its common identity, its life, and its will,” (Rousseau 1762: 192). As such it contained the answer to the question of how to legitimate authority: “the sovereign, being formed wholly of the individuals who compose it, neither has nor can have any interests contrary to theirs,” (Rousseau 1762: 194).

Sovereignty in the social compact amounts to the establishment of a general will of the people. And this implies that “those associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign authority, and subjects, as being under the laws of the state,” (Rousseau 1762: 193). Thus, Rousseau argued that we are obliged to comply with laws and obligations that are in conformity with the general will. The legitimacy of state authority, of sustaining civil laws, depends upon the double role of the individual members of the state being both lawgivers as part of the sovereign expressing the general will and subjects who are forced to comply with the law. The standard to measure the justice and legitimacy of a given state is thus to ask whether the individuals living under state rule also themselves have formulated the ideal of its laws.

Rousseau turned Hobbes argument for grounding the autocratic rule of the sovereign on a social contract upside down. For Rousseau it was clear that “since no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men,” (Rousseau 1762: 185). Therefore, Rousseau’s argument for the social compact amounted to establishing a moral standard to judge whether state authority in any given society lives up to the standard of justice. Legitimate authority stems from the social compact because it assures the self-government of the people. In order to pull such an argumentation through, Rousseau presented an alternative view of the state of nature. His political philosophy rested on the assumption that humans in a state of nature were more or less indifferent towards each other and only the want of plenty of natural resources made them find together in societies. Where Hobbes operated with two possible circumstances under which humans could exist, namely the condition of war in the state of nature and rule governed society, Rousseau projected three: the state of nature and the different states of illegitimate and legitimate societal life. He imagined the state of nature as a state of “indolence … the happiest and most stable of epochs,” (Rousseau 1755: 91) and argued that the real predicament was the state of enslavement of human beings under illegitimate states. According to Rousseau the passage from the state of nature to societies indicated a thorough transformation: “the voice of duty takes the place of physical impulses and right [takes place] of appetite … [so that the human being] find that he is forced to act on different principles, and to consult his reason before listening to his inclination,” (Rousseau 1762: 195). However, this transformation of the human being from a “stupid and unimaginative animal” into “an intelligent being and a man” (Rousseau 1762: 196) was abused in the authoritarian rule of most states where the free human being “everywhere … is in chains” (Rousseau 1762: 181).

Rousseau’s main ambition consisted in producing an argument that could make the states legitimate. His argumentation was directed at a future social contract which should remedy the faults of existing states where force overrules civil and moral rights. According to Rousseau it was simply nonsense to assume that force in itself could explain what a right is, since force cannot explain obligation: “As soon as it is possible to disobey with impunity, disobedience is legitimate … But what kind of right is that which perishes when force fails? If we must obey perforce, there is no need to obey because we ought; and if we are not forced to obey, we are under no obligation to do so,” (Rousseau 1762: 184).

Rousseau’s ideal of the original social compact which would create an association of citizens who by self-governance attained civil and moral liberty was built on a completely different conception of justice, law and right than Hobbes had purported in Leviathan. According to Rousseau moral liberty is generated by the ability to comply with self-imposed laws that correspond with the collective justice and utility of an associated people. The collective justice involves basic rights of all citizens to partake in producing the law under which the same citizens as subjects are subdued. Thus, Rousseau’s ideal of justice is procedural and his conception of rights relates to the formal roles of the citizens as participants in the production of laws. An important insight from Rousseau which spurred the French Revolution and was carried over to the French Declaration of Human and Civic Rights was that rights germinate out of a people’s free self-governance and sovereignty.

The French Declaration and its Ambiguous Conception of Law

In the beginning the SocialContract Rousseau pointed out that he was no legislator for had he been that “I should not waste time in saying what wants doing: I should do it, or hold my peace,” (Rousseau 1762: 181). The idea of changing the fundamental laws in order to make society adhere to the ideals of justice mounted by Rousseau can be read as the slogan for numerous subsequent political changes in Europe and Northern America. However, I do not want to argue that Rousseau’s Social Contract was the prime mover of the political changes.[4] Rather I should like to point out how aspects of Rousseau’s political philosophy were incorporated in the French Declaration of Human and Civic Rights along with other –and sometimes – conflicting conceptions.

Firstly, the formation of the National Assembly in July 1789 can in itself be seen as an attempt to change the French state from authoritative monarchical sovereignty to self-governance of the people thereby changing the political system in accordance with Rousseau’s ideal of legitimate political authority. As the “representatives of the French People … [the] National Assembly … resolved to set forth, in a solemn Declaration, the natural, unalienable and sacred rights of man …,” (French Declaration). However, already in the description of the rights of man the National Assembly departed from a strict Rousseauian position. For Rousseau, legitimate political law was based on human artificially construed conventions and thereby neither natural nor sacred. According to Rousseau the rights of man could be understood as inalienable in the sense that any breach with these would make the political authority illegitimate. As the National Assembly described the rights of man as natural and sacred they might have wanted to point to the tradition of divine natural law. As we shall see in the case of Olympe de Gouge this tradition was reinterpreted by proponents of the French Revolution as a justification of the changes in state rule. Divine natural right was thus interpreted as a standard of justice which buttressed the revolutionary political actions. The reference to natural and sacred rights can be understood as way of broadening the scope of the possible source of legitimacy within the Declaration.

Article 6 contains the most conspicuous reference to Rousseau’s political philosophy as it states that “the law is the expression of the general will.” The National Assembly follows Rousseau in claiming that the legitimacy of the law stems from the people’s “right to take part, personally or through their representatives, in its making,” (French Declaration: art. 6). The mirror image of article 6 is article 12 that declares the necessity of “a public force” to guarantee the rights of man. The public force is “established for the benefit of all, and not for the particular use of those to whom it is entrusted,” (French Declaration: art. 12). Thus, the Declaration solves the problem of the legitimacy of public force by underlining that force should only be used in ways that corresponds to the public good and the command over the public force should be placed in the hands of the lawgivers. Thereby the Declaration underscored that the use of force needs to have public acceptance as its legitimating source. This is clearly in keeping with Rousseau’s conception of how laws become morally binding by the act of self-governance. The legitimacy of laws makes it legitimate to utilise force to uphold the same laws. Thus, the Declaration, Hobbes and Rousseau all agreed that public force is a necessary element of any law governed state. The difference consists in the emphasis Rousseau and the Declaration put on the procedure of law making. If laws stem out of the self-governance of the people – or according to the Declaration their representatives – it is justified to use force to compel the subjects to abide to the laws. Hobbes thought, on the other side, that force was a necessary prerequisite of any laws and the ability to create a power monopoly granted any ruler legitimacy.

The article which poses the greatest difficulty to align with Rousseau’s political philosophy is article 4. It states: “Liberty consists in being able to do anything that does not harm others; thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law,” (French Declaration: art. 4). This definition of liberty could have been taken directly from Hobbes as he stated that liberty amounts to the silence of the law. In contradiction hereto Rousseau differentiated between “the natural liberty and an unlimited right to everything he [the human] tries to get and succeeds in getting” in the state of nature, on the one hand, and the “civil liberty and the proprietorship of all he possesses” which is gained in society, on the other. If the society is just Rousseau claimed that the human being also “acquires moral liberty, which alone makes him a truly master of himself; for the mere impulse of appetite is slavery, while the obedience to a law which we prescribe to ourselves is liberty,” (Rousseau 1762: 196). For Rousseau moral and civil liberty were tied up to the procedure of law making of the general will which all subjects take part in. Thus, to be free, according to Rousseau, is to live in accordance with one’s own laws. Liberty is not contrary to law, rather just laws are the expression of human liberty. The Declaration, on the other hand, seemed to follow the tradition of thinking about liberty to which Hobbes belonged. Hobbes’ view was that “in all kinds of actions by the law pretermitted men have the liberty of doing what their own reasons shall suggest for the most profitable to themselves,” (Hobbes 1651: 147). The only addition hereto by the Declaration was that these free actions that concern matters which the law has not regulated should not harm others. This conception of liberty, the absence of coercion from the law, is in blatant opposition to Rousseau’s ideal of moral liberty being the act of making one’s actions conform to the law articulated by one self and all other members of the general will. Rousseau thought of moral liberty as a rational ability to be self-governing and to be in accordance with the other self-governing citizens, whereas Hobbes and the National Assembly thought of liberty as free choice outside of the reach of any law.

The discussion of articles 6 and 4 points to an ambiguous conception of law in the Declaration. On the one hand the law is viewed as an expression of the general will and thereby legitimised as a law which justly obliges all subjects because the same subjects are citizens who partake in the process of law making by the general will. On the other hand, liberty is viewed as the exemption from the ruling of the law. This implies an understanding of the subjects of the state as individuals who are coerced by the law and free in those actions that stand outside of the scope of the law. Hobbes would agree with this view. But it is difficult to unite it with the ideal that laws are obliging because the subjects themselves are the authors of these laws. It is, of course, possible to argue that human beings simultaneously can be subjects and citizens who produce and oblige themselves to the law by taking part in the sovereignty of the state and individuals concerned with their private interests in all those matters of life where the law is silent. Such a view implies a combination of the procedural understanding of justice put forth by Rousseau, namely that laws become just if they are in concordance with the general will of the people, with an understanding of the human being as more than a political law maker and law abider, namely an individual with private ideas of how to live. These private ideas are protected as individual rights as long as they do not harm others. Though it might be possible to conjoin these views the Declaration was not exempt from harsh criticism.

Two Different Criticisms by Olympe de Gouge and Jeremy Bentham

Bentham was no supporter of the Declaration of Human and Civic Rights. Concluding his overview Bentham wrote that the fundamental principles of government put forth in the Declaration amounted to “execrable trash,” (Bentham 1795: 66). He compared the misconception of French politics in the Declaration with the leading role of French chemistry at his time. Bentham did not develop further why he thought France leading in chemistry but probably he hinted at the revolutionising discoveries of Antoine Lavoisier (1743-1794). Bentham wanted to underline a procedural difference between chemistry and politics in France. So apart from the fact that the rest of Europe unanimously credited France and Lavoisier for important discoveries within the field of chemistry, while the French Revolution and its Declaration of Human and Civic Rights were greatly disputed across Europe, Bentham pointed to a problem of how the French approached the questions of politics. Bentham wrote: “Comparatively speaking, a select few applied themselves to the cultivation of chemistry – almost an infinity, in comparison, have applied themselves to the science of legislation. … In chemistry there is no room for passions to step in and to confound the understanding – to lead men into error, and to shut their eyes against knowledge: in legislation, the circumstances are opposite,” (Bentham 1795: 66-7).

According to Bentham it was a serious mistake to let political decisions and the writing of legal documents be in the hands of the people: “What, then, shall we say of the system of government, of which the professed object is to call upon the untaught and unlettered multitude (whose existence depends upon their devoting their whole time to the acquisition of the means of supporting it,) to occupy themselves without ceasing upon all questions of government (legislation and administration included) without exception – important and trivial, – the most general and the most particular, but more especially upon the most important and most general – that is, in other words, the most scientific – those that require the greatest measure of science to qualify a man for deciding upon, and in respect of which any want of science and skill are liable to be attended with the most fatal consequences?” (Bentham 1795: 67).

Bentham put forth an ideal of politics, legislation and administration as a science in need of skilled and learned scientists to perform it. This ideal stands in profound opposition to the ideal of self-governance of the people. The Rousseauian ideal claims that a law attains legitimacy and is thus normatively binding if the subjects of the law also – as citizens – are the authors of the law. Bentham, in contradistinction, argued that National Assembly, being mere amateurs and an “untaught multitude”, was not equipped to formulate laws. Thus Bentham argued that he did not “mean to attack … this or that country – not this or that citizen – not citizen Sieyes or citizen anybody else, but all anti-legal rights of man, all declarations of such rights. What I mean to attack is, not the execution of such a design in this or that instance, but the design itself,” (Bentham 1795: 68).

The criticism of Bentham can be boiled down to two main faults in the design of the rights of man: (1) they were not formulated by the legal expert, or as he called it, “the rational censor”, but by an “anarchist”, (Bentham 1795: 50) and as such they amounted to various verbal inconsistencies; (2) the conception of natural rights anterior to the establishment of governments is nothing but “nonsense upon stilts,” (Bentham 1795: 53). In the following I shall focus on (2). Bentham almost echoed Hobbes as he pointed out that “we know what it is for men to live without government … we see it in many savage nations, or rather races of mankind … no habit of obedience, and thence no government – no government, and thence no laws … liberty, as against regular control, the control of laws and government – perfect; but as against all irregular control, the mandates of stronger individuals, none … In this state …, judging from analogy, we, the inhabitants of the part of the globe we call Europe, were [at a time]; – no government, consequently no rights … no legal security – no legal liberty: security not more than belongs to the beasts – forecast and sense of insecurity keener – consequently in point of happiness below the level of the brutal race,” (Bentham, 1795: 53). What Bentham depicted was similar to the state of nature envisioned by Hobbes. In accordance with Hobbes, Bentham underlined that right was established by law which attained its power from government that rests upon the monopoly of force: “All governments that we have any account of have been gradually established by habit, after having been formed by force,” (Bentham 1795: 55).

In his rejection of natural rights Bentham also came to reject the natural right to self-preservation which Hobbes had maintained. According to Bentham “the language of reason and plain sense” claimed that “as there is no right, which ought not to be maintained so long as it is upon the whole advantageous to the society that it should be maintained, so there is no right which, when the abolition of it is advantageous to society, should not be abolished,” (Bentham 1795: 53). Thus, the formulation of rights and the decision whether a right should be maintained is flexibly judged in connection with the advantage of the specific right to society. But the question, which Hobbes and Rousseau were both struggling with, remains unanswered by Bentham: who decides what is advantageous to society? Bentham hints at an answer by pointing out that the legal scientists should formulate the law. But do they know what will be more advantageous for society? According to Hobbes the responsibility of deciding what is advantageous to society was – in the political commonwealth – delivered to the sovereign by the people who rationally subdued themselves. But at the same time the individual kept her natural right to self-preservation. Even though this right could be overruled by the sovereign it still posed a restrain to the rightfulness of society’s usage of the individual. Rousseau, on the other side, answered the question of what rights are indispensable by pointing out that rights can only legitimately be obliging if they are formulations of the general will of a sovereign people. Therefore, “as soon as [a people] can shake off the yoke, and shakes it off, it does even better,” (Rousseau 1762: 181). It is apparent for Rousseau that most governments succeed in forcing the people, but as long as they only do this by way of force, the individuals are not morally obliged to compel – they are simply forced to do so.

Rousseau would probably have applauded the Declaration for formulating the requisite basic rights that enable the general will of any sovereign people to act as law maker. But, as Olympe de Gouge pointed out in her Declaration of the Rights of Woman, there was a discrepancy between the universally formulated ideals of the Declaration and its actual scope. Despite the fact that the Declaration was meant to construe a just foundation for government, de Gouge started her alternative declaration with the question: “Man, are you capable of being just? It is a woman who poses the question,” (de Gouge 1791: 89). The injustice pointed out by de Gouge was the manifest inequality between men and women. The National Assembly was an assembly of men and it was only upon men that political rights were bestowed – and only those of economic independence and mature age.

In her argument for the injustice of the exclusion of women from political rights, de Gouges brought a conception of divine natural rights into play. She asked men “what gives you sovereign empire over my sex? Your strength? Your talents? Observe the Creator in his wisdom; survey in all her grandeur that nature with whom you seem to want be in harmony with, and give me, if you dare, an example of this tyrannical empire. Go back to animals, consult the elements, study plants … and distinguish, if you can the sexes in the administration of nature. Everywhere you will find them mingled; everywhere they cooperate in harmonious togetherness … Man alone has raised his exceptional circumstances to a principle. … He wants to command as a despot a sex which is in full possession of its intellectual faculties; he pretends to enjoy the Revolution and to claim his rights to equality in order to say nothing more about it,” (de Gouge 1791: 89).

de Gouge’s argument by way of the conception of natural and divine rights can be read to underline and point out that the injustice of keeping women exempt from political rights amount to a blatant contradiction within the aims of the French Revolution. If the National Assembly thought of itself as restoring or creating justice in an unjust political order, they themselves instituted injustice by way of their suppression of women. This inequality between the sexes was, so seems de Gouge’s argument to run, not part of the natural, inalienable and sacred rights of humanity. Thus it is important for the weight of de Gouge’s argument that it is not only a question of construing a general will of the people to be producers of the law. If this was the only normative source of political rights it would be possible – as have conservatives throughout history done – to create an argument that would have women represented in political deliberations by their fathers or husbands. Therefore, it was more transparent that the lack of women’s political rights was unjust, as de Gouge argued, if this lack was a corruption of the order of the Creator and of Nature.

However, as de Gouge wrote her alternative Declaration of the Right of Woman as a mirror image of the Declaration of the National Assembly, she furthermore pointed out how the exclusion of women from law making amounted to a contradiction within the concept of law. Article 10, which in the Declaration of the National Assembly declared the right to free speech (“No one may be disturbed on account of his opinions…”), de Gouge formulated so that it displayed inconsistency in the Declaration of the National Assembly: “No one is to be disquieted for his very basic opinions; woman has the right to mount the scaffold; she must equally have the right to mount the rostrum, provided that her demonstrations do not disturb the legally established public order,” (de Gouge 1791: 91). To force a man to comply with a law he has no possible occasion to influence is the basic definition of illegitimate ruling according to Rousseau. de Gouge pointed out that this was exactly the situation of women as long as they were not equal citizens.

The criticisms of Bentham and de Gouge point to an underlying issue of how to argue for the normative validity of human rights that has continuous importance. If we reject the idea that human rights can be more than legal restrictions construed by existing political powers, as results from Bentham’s line of reasoning, it becomes difficult to block arguments that claim it to be advantageous for nation states to discard with international law concerning human rights of, for example, refugees. If, on the other hand, we amplify our arguments as to the inalienability of human rights by reference to a divine order of either Nature or God, then the argument might have the opposite effect. It is easy for nonbelievers to discard the argumentation of believers as metaphysics. And the discussion within believers can be moved from the question of rights to the right interpretation of the commandments of the Creator, just as the discussion of the order of Nature can be bent to concern whether there really is harmony between animals or other parts of nature. Therefore, I want to argue that the only feasible route to defend human rights is procedural. By pointing out that we through the procedure of collective deliberation can construe arguments for certain restraints and certain rights as the result of weighing between principles of justice, equality and utility for all humans we can also give an explanation and justification of human rights as the best possible explanation of the source of obligation of laws, if it is not simply force. Laws are morally obliging and can be stated as human rights, if everybody can agree to their justice seen from the perspective of the common good they further while acknowledging personal autonomy.

References

Bentham 1795: “Nonsense upon Stilts”, in Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man, ed. Waldron, Meuthen, 1986

de Gouge 1791: “The Declaration of the Rights of Woman” in Women in Revolutionary Paris, 1789-95, ed. Levy et al., University of Illinois Press, 1981

Hobbes 1651: Leviathan, ed. Tuck, Cambridge University Press, 1996

Rousseau 1755: “What is the Origin of Inequality among Men, and is it Authorized by Natural Law?” in The Social Contract and Discourses, transl. Cole, updated Jimack, The Everyman Library, 1973

Rousseau 1762: “The Social Contract” in The Social Contract and Discourses, transl. Cole, updated Jimack, The Everyman Library, 1973

Endnotes

[1] The American Declaration of Independence from 1776, of course, precedes the French Declaration as a legal document built on the idea that unalienable rights of humans make up the fundament for the state and its legislation.

[2] The self-appointed national assembly drafted and confirmed the Declaration of Human and Civic Rights in August 1789 as a legal document to steer the fundamental rights of the French people and legitimate a new parliamentary system of state legislation. The Declaration became the preamble of the constitution of the French constitutional monarchy lasting from October 1791 to September 1792. With the announcement of the French republic in 1792 and the abandonment of the monarchy the Declaration underwent small changes but remained an important legal document. However, the 1793 reign of terror, the increasing number of executions, and the incessant political turmoil undercut the Declaration as well as parliamentary rule and as Napoleon finally in 1804 announced himself emperor of France the Declaration of Human and Civic Rights was completely abandoned.

[3] The text was not published until 1816 but is expected to have been written in 1795 – see Jeremy Waldron, Nonsense upon Stilts, Methuen, New York, 1987, p. 4.

[4] In his famous 1895 study Georg Jellinek argued that “the Declaration of August 26, 1789, originated in opposition to the Contrat Social. The ideas of the latter work exercised, indeed, a certain influence upon the style of some clauses of the Declaration, but the conception of the Declaration itself must have come from some other source,” Jellinek, The Declaration of the Rights of Man and Citizen. A Contribution to Modern Constitutional History, transl. Max Farrand, New York: Henry Holt and Company, 1901, p. 12. Jellinek successfully proved the immense impact of various North American sources on the wording of the French Declaration of Human and Civic Rights.

This work is a study in jurisprudence that considers the proper function of law to be the promotion of a context in which, without impeding one another, we can lead our lives together in peace and justice.[1]

In this vision of the proper function of law the authors capture the core purpose of a legal system, as a tool to support a good and just society, for example by promoting the common good and defining social order. The law evolves in a moral context which instructs that “to act reasonably and responsibly is the demand intrinsic to our moral experience as humans.”[2] Natural justice or intrinsic moral behavior, such as to consider the interests of others, is cultivated and expressed in “the living or communal law” of a society.

Humans, the authors insist, are social animals and live by necessity in communities[3] and the ways of doing things in the community, customs, practices, expectations, develop in time into jural relationships—the “living law”—normative principles generally approved of by the community. Thus, they deduct, law in fact existed in all human communities before it ever was expressed in a formal way. Law is thus a product of evolution and in no way that of any social contract.[4] Rights and duties are not based on a consensus, they are entitlements that must be mutually valued for a society to survive, discoverable objects of justice. The authors adopt a classical theory of rights, maintaining that rights “are a function of justice understood as the giving to each what is due.”[5] However, they denounce a subjective understanding of rights, thus a right only exists if it can be defined as an entitlement that has been accepted or acknowledged in the society.[6] Until it has been recognized it is only an as yet unsubstantiated claim.

So far I have more or less been in agreement with the authors, here I have to pause however, because they explicitly note that this view of the nature of rights applies to all rights, not just positive legal rights, or rights to a tangible object. It also applies to “natural rights” and “human rights” like those rights listed in the Universal Declaration of Human Rights: in so far as the respective society of a proposed right-holder has not recognized the Declaration or the entitlement as such, there is no right to speak of.[7] I have to doubt that an entitlement to a fundamental right depends on its acceptance; that claim seems to go against the very essence of the nature of fundamental rights.

But I am not going to dwell on criticisms; rather I want to propose a vision of the initial status and interaction in human community and its consequences. The concept of “living law” as presented by the authors is plausible, but it does not, it seems to me, suffice to promote “a context in which, without impeding one another, we can lead our lives together in peace and justice.”[8] This is so because the darker elements of human nature or simply the differences in physical and mental strength are bound to have had an influence on the development and acceptance of the “living law”. That is to say, if this development is left to chance and no conscious measures are taken to guard a natural balance, an error in society’s harmony may result.

Humanity

Before proceeding I must reflect on a few theses about human nature.

Many scholars have tried to define what exactly being human implies and its moral implications. Some want, for example, to describe the concept from the perspective of an inner self or consciousness, others emphasise psychological qualities such as memory and mind. Thomas Nagel stresses the transcendental nature when he says: “People can come to feel, when they are part of something bigger, that it is part of them too.”[9] Nagel sees the capacity of insight—to transcend oneself in thought—as the cause of our feeling that life is absurd, which, in turn, he holds is “the most human thing about us”.[10] He acknowledges the circularity of referring to such arguments but adds: “We adhere to them because of the way we are put together; what seems to us important or serious or valuable would not seem so if we were differently constituted.”[11] Nagel captures here, I think, the essence of the human nature, the mystery of the conscious mind as it is expressed through imagination and desire.

Another distinctive capacity human beings share is rationality. The Stoics compared rationality with a creature which forms and controls the individual it resides in as if it has a will of its own, but is at the same time like a bird in a cage, bound within the human individual.[12] In other words it needs to be cultivated and nourished and tamed so it may control the impulses to less virtuous actions rooted in our natural drive of self-preservation.

The degree to which human beings have this capacity or use it is irrelevant in this context, as well as the fact that it may be partly or completely lost on some, because this does not change the overall picture of how human beings are constituted. It is a characteristic of human beings that they are capable of virtue and rationality; and in this sense all men are equal, or as Johnny Christensen puts it:

Parity of natural potentiality is implied by the very definition of man. Therefore there can be no natural differences between Greek and Barbarian, man and woman, noble and commoner, free man and slave.[13]

And finally I would like to refer to Bernard Williams, who argues in his essay “The Idea of Equality”[14] that it is neither trivial nor a platitude to say that men’s common humanity constitutes their equality. Any difference in the way men are treated must be justified, he says, and this is seen by many to imply “an essential element of morality itself”.[15]

Human needs

Now, a reflection on the needs of the human being. Aristotle said that man needs certain living conditions to flourish and to perfect his human nature—learning virtue and good manners.

Thus, the human being needs relations with other human beings; but moreover she needs to experience autonomy in respect to her options and status,[16] this must be so because of her sense of the individual self, sense of well-being and sorrow, sense of right and wrong, etc. It is this somewhat mysterious characteristic of the human being that calls for a society in which equal consideration and respect are essential elements. In such a society fundamental rights, as we call them, are intended to protect those values of a human life that we see as essential to the sense of existence and the autonomy of everyone: and for these we constantly struggle.

In ancient Greece, where the law was based, in part at least, on convention or the “living law”, philosophers saw the role of motherhood as a reason to doubt the full humanity of females[17] and ever since this has significantly contributed to their subjugation. Women have been, as Kymlicka says, “associated with the merely animal functions of domestic labour, whereas men achieve truly human lives by choosing activities according to cultural goals, not natural instincts”.[18] When a certain group of people has been displaced in society for any reason, such as has for example been the case with black people and women, it is clear that their fundamental equal status has been violated, and their human status has not been respected. Today we call this discrimination; something must have gone wrong in the development of law and that implies the “living law” has not sufficed to secure a good and just society in the absence of guiding principles.

What we know about the inner life of human beings is sufficient to provide us with a compelling reason for acting at least in one certain fashion, and that is to treat all human beings with equal consideration and respect. To act otherwise amounts to abusing the common needs of all human beings. Barden and Murphy might want to qualify that assertion by saying that we must not discriminate unjustly.[19] They also criticize Ronald Dworkin’s thesis about a right to equality of concern and respect[20] by reference to their down to earth relativistic view of the law.[21] Their relativism nevertheless misses an important point about the nature of fundamental rights. In line with Dworkin I would now like to further suggest that equality is the fundamental principle of human interaction, and that any thesis that does not embody it is therefore fundamentally flawed.

Hypothesis: a platform of equality—a principle of human interaction

In this final section of my paper, I want to propose an argument. In substance it holds that equality must have an even stronger and, in particular, a more fundamental role in a just and flourishing community in which “we can lead our lives together in peace and justice”.[22] I will venture a strong approach to a principle of equal consideration and respect as a rationale for any fundamental rights human beings may have.[23] On this understanding, the conception of equality is prior and primary to, as well as being in a causal relationship with, the existence of the values we call fundamental rights of human beings; not the other way around. This is so, because when we have defined the characteristic elements of human nature, as above, and reflected on them, we can agree, I think, that there can be no justification at hand for discrimination in respect to those elements.

Follow me now in a little thought experiment. Imagine a platform, like a huge derrick or an outdoor stage, or the starting square in a game. On this platform we have all the human beings there are. Maybe this is at the very beginning of human existence, it does not make a difference. They are landed there in their capacity as human beings; before the game starts; before they begin to fend for themselves in the state of nature or in society. I like to call this position the Platform of Equality.

We may be looking from high above, so we cannot see the details. We only see human beings and as such they are all the same. In fact one may talk louder than another, one may be physically stronger than another, one may be equipped with a better tool to reason. Because of such differences we sometimes say that men are approximately equal,[24] but the important question is: do these differences entitle them to a head start in the game, or in life in fact? I think we can agree that they do not, so let’s imagine that the human beings on the Platform have not yet themselves realized these differences. They are qua human beings all in equal need of the basic necessities that bring a flourishing human life. There at the Platform there is no ruler, and as yet no rules. It is here that the “living law” begins to develop, and the important question is by what norms it will be guided. Will it be by the understanding and respect for mutual human needs, or will this understanding—an essential condition for a peaceful society in which everyone may flourish—be lost on many when they have started to fend for themselves and individual strengths prevail, thus unduly influencing the development of the “living law”?

The point being stressed here is simply that human nature requires that everyone is equally ensured the opportunity to be in control of those matters in her or his life that are the most important for human living. On this understanding, it is not just having the same fundamental rights that constitutes the parity of human beings, but that human beings more importantly have these rights because they are equal in a fundamental and natural sense; it is the sameness that inspired the Stoic’s teachings of brotherhood or solidarity.

We can imagine that we draw a circle around each and every individual on which those items most important for human living are located. They may then be seen like electrons circling an atom, bound to its core by an invisible force. And they cannot be removed without consequences: the disruption of the individual as an autonomous entity. If we make a list of these needs and values we will obviously find security of life, liberty, food and shelter—and most likely other elements and values which today are acknowledged in human rights clauses and conventions. But in spite of the fact that all humans are fundamentally the same in regard to these basic elements, they are still different in their individuality and strength, and that fact makes it essential to recognize and find a way to protect their equality in respect to these fundamental elements, as humans diverge from the Platform of Equality.

From the Platform of Equality we continue to build a society, applying a theory of the development of laws or some contract theory of fairness; but a primary premise must always be that the citizens already have those properties—we can call them rights—equally allocated, and that those cannot be obliterated or curtailed by our actions, customs or the rules we set. On those terms a society evolves from the grounds of that which is essential for the development and wellbeing of everyone who lives in it. That is the idea of the Platform of Equality; building society on the conception of fundamental equality. From there other interactions may develop.

If society is a necessity for humans, as the authors hold, that must only be true in so far as the individuals are not harmed by it. Who has a need (perhaps mere survival aside) for being in a group where he is ill-treated or subjected to the domination of another, or subjected to lifelong poverty, or not treated with equal concern and respect to other members of the group? To stay with an analogy from physics, interaction is meant to transfer energy, not destroy it.

If we take equality of humans in this sense seriously it leads us to an awareness of the necessity of protecting certain fundamental rights and to provide certain conditions based on respect for the values these protect. In the case where these are not acknowledged as valid entitlements action is needed to correct the situation. Government power, official institutions and private enterprises must follow suit, and experience shows we cannot leave this entirely to development. These principles should always have been clear, but they have not been, or not opted on. We have realized that things are not right, and tried to define how they should be by using the hypothetical methods of natural or positive law, social contract theories or the concept of the living law; but, I believe our documented failure lies, among other things, in never defining properly what went wrong, the situation at the very beginning, at the Platform of Equality and the development of society from there on. We have failed to recognize how the principle of equal consideration and respect is derived from our very nature. And the necessity of protecting certain fundamental rights and living conditions come from that fact, not the other way around.

It is of course complicated to turn around in the real world where we have obviously started down a terribly wrong path, a long, long time ago, but to think it over and realize the mistake may be taking the first step to rectification. Hopefully we have not created a web of rules so entangled that we cannot disentangle it for the cause of a just society. That seems necessary if the law is ever to fulfil its proper function of promoting “a context in which, without impeding one another, we can lead our lives together in peace and justice.”[25]

[1] Garret Barden and Tim Murphy, Law and Justice in Community, Oxford University Press Inc, New York, 2010, p. vx.

[16] It is this sense of life we mean when we talk about human beings flourishing as the beings they are. A good society provides such conditions. Good society is governed by good laws, said Aristotle, but will be destroyed by bad. The laws are to proscribe and guard those elements that entice welfare and happiness. And in so far as the law is good, one who infringes it does injustice. Aristotle discusses these matters in his Ethica Nicomachea and Politica, e.g. NE I 4 1095a.

[19] Barden and Murphy, p. 210. The principle to treat everyone with equal concern and respect they argue “demands […] that one not discriminate unjustly between people.”

[20] Barden and Murphy quote Dworkin: “We may therefore say that justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.” Dworkin R., Taking Rights Seriously, Cambridge, Mass: Harvard University Press, 1977, p. 182.

[23] In my approach I have in particular been influenced by two conceptions. One is Ronald Dworkin‘s thesis that governments ought to treat people ‘as equals‘ and not merely ‘equally’. His theory of equality is complex but importantly he seems to see equality as a fundamental value and liberty and equality as inseparable. See e.g., Dworkin, R., “Liberalism”, in Public and Private Morality, Stuart Hampshire (ed.), Cambridge University Press, Cambridge 1978, p. 113ff, at p. 125; and Taking Rights Seriously, Harvard University Press, Cambridge, Massachusetts 1977, p. 227.The other is the ‘respect principle’ Tom Regan spells out in his The Case for Animal Rights, University of California Press, Berkeley 1984, pp. 326-327.

The papers were illuminating and, when they disagreed with the book, either rightly looked for further clarification or identified genuine shortcomings with some, but not all, of which I try to deal.

I am very grateful for Guðmundur Heidar Frímansson for his generous and accurate review and particularly for his correction of the assertion made on p.1 of LJC that the Law Speaker recited all the laws annually at the Althingi, when, in fact, only one third of the corpus was recited annually. I regret and apologise for this mistake.

Finally, I would express my thanks to our editor, Giorgio Baruchello, who has gone to much trouble to publish these essays. I shall respond to them in the order in which Giorgio received them and sent them to me

Hjördís Hákonardóttir: “Equality: A Principle of Human Interaction.”

For Hjördís [H] that people ought to be treated equally is a fundamental principle in her idea of human society; she argues “…that equality must have an even stronger, and in particular, a more fundamental role in a just and flourishing community in which ‘we can lead our lives together in peace and justice’.” [The internal quotation is from LJC.] There seems to be an omission in her written text; it is not said what equality must be stronger than. I understand her to have meant that equality must have an even stronger and more fundamental role than justice. Earlier in her paper she notes correctly that in LJC that a right is held to exist only when it is established. With that she disagrees: “I have to doubt that an entitlement to a fundamental right depends on its acceptance; that claim seems to go against the very essence of the nature of fundamental rights.”

I think that those disagreements are due to some extent, but perhaps not entirely, to the use of words, for there is nothing in LJC to support the idea the people are to be treated unequally when it is just to treat them equally. Indeed, both Aristotle’s and, centuries later, the Roman definition of the just includes the idea that equals are to be treated equally and unequals unequally. Furthermore, if one genuinely holds that two people are for present purposes in all relevant respects equal, it is impossible reasonably to treat them unequally, no reasonable discrimination would be possible and any discrimination between them would necessarily be based upon a criterion that one had claimed to be irrelevant. Bernard Williams, whom H quotes approvingly, does not claim that everyone is to be treated equally; his claim is that, qua human, people are to be treated equally and to discriminate between them requires the introduction of a relevant criterion. The most fundamental principle is not that one ought to treat all humans equally, for that principle inevitably evokes the question, Why? And the answer to that question is that humans, in important and fundamental respects, specifically but not exclusively qua human, are equal. Accordingly in the respects that they are equal, they ought to be treated equally. That principle evokes no further questions because, as I have said, it is impossible to distinguish between equals; that is simply the meaning of things being equal.[1] The crucial question then becomes how are humans qua human to be treated; to which question to say that they are to be treated equally is not a satisfactory answer. The answer that they are to be treated justly is a heuristic answer: a human qua human is to given what is due to him or her qua human. What that is is not yet known but is the work of justice to discover. However, there are situations in which one does not treat other simply qua human; in those situations humans are in very many important and relevant respects unequal and in those respects one ought to treat them unequally. There is, for example, a crucial difference between one accused of a crime, one acquitted of a crime and one convicted of a crime. To claim that the one accused, the one acquitted and the one convicted are to be thought of as in all respects equal and all three to be treated in the same way is unreasonable unless one holds that the manifest differences between them are irrelevant. Many manifest difference are, of course, in some circumstances irrelevant: to the judge on a refugee tribunal, “It is irrelevant whether the claimant is a man rather than a woman; whether he has brown hair; whether he is highly educated; whether he speaks the language of the state where he seeks refuge; and so on indefinitely” (LJC ,Ch.6.6. 159). Two manifestly different applicants to a refugee tribunal are taken to be relevantly equal and to be distinguished only on the grounds of fulfilling or not fulfilling the criteria of the Refugee Convention. But citizens, non-citizen residents, temporarily visiting workers, asylum seekers and tourists are usually treated differently because it is usually held – rightly or wrongly – that to discriminate between them on that set of criteria is just. The rights of citizens and non-citizen residents are not identical precisely because when they are being considered according to that difference they are not then being considered simply qua human.

Whatever one’s position on the matter of procured abortion, much debate has turned on whether a foetus at one stage of development is relevantly equal to one at a later stage and from a new born infant. The differences between them at the different stages cannot reasonably be denied; the question is whether or not those differences are sufficient for abortion to be morally good at one stage and morally bad at another. In the Twelve Tables, the first law on the fourth table requires that “A notably deformed child shall be killed instantly”. Clearly, the makers of that law considered the manifest difference between a well-formed and “a notably deformed child” to be a relevant criterion, and that the two kinds of children were relevantly unequal. In many modern states the manifest inequality between a foetus at one stage and one at another is taken to be a criterion permitting abortion at the earlier stage; none of those states, I think, accepts deformity as a criterion for infanticide. The more basic principle is, therefore, the ancient principle of justice: “treating equals equally and unequals unequally render to each what is due”. What constitutes relevant equality and inequality, what is due both in the general case and in the particular circumstances, remains to be settled and is the fundamental business of moral and jural argument. It was not the business of LJC whose two authors, Tim Murphy and I, could differ on such questions. From what is said of the argument about abortion and infanticide in this paragraph, nothing about my personal position on either question can be inferred.

H thinks the position taken in LJC to be a “down to earth relativistic view”. I think it is not; if I am wrong, the book is deeply and irretrievably incoherent. It would be relativistic if, and only if, it included the proposition that there could be no true moral conclusion, a proposition that is most explicitly argued against at pp. 175 -6 but which runs throughout. What is said, on the one hand, is that people have had, have and will continue, for various reasons, to have different and incompatible views, and, on the other hand, that the conclusions that humans reach can be no more than the best available in the light of present understanding and evidence; some are more tentative than others; and so physicists know that their present conclusions are not “absolutely certainly true”. As Victor Hugo wrote “La science est l’asymptote de la verité, elle approche toujours, elle ne touché jamais” The evidence for very everyday common sense judgements is often much stronger. No one now reading this essay can reasonably doubt that it is written in English; someone who knew no English whatsoever would simply not know.

The proposition that NN and AA are entitled to be treated equally rests on the underlying presupposition that the situation in which they are to be treated equally is one in which any differences – inequalities – between them are irrelevant and to be ignored. The evidence for the proposition that equals are to be treated equally is the discovered inability of human intelligence to distinguish between A and A, sometimes referred to as the principle of identity. The principle itself – not its theoretical discovery – is a natural and unavoidable characteristic of the human mind. To hold that men and women are to be treated equally is not to hold that men and women are in all respects equal, which manifestly they are not, but that the inequalities (or ‘natural differences’) between them are to be ignored in the some situations.[2] It is, of course, true and acknowledged in LJC , that unjust distinctions on foot of those inequalities have been, still are, and will continue to be made. That differences do not always justify distinctions is a very ancient discovery, for example, the discovery that in a court case the differences between the poor and the rich are not to count. The earliest written expressions of that discovery with which Westerners are familiar are in the Torah (Ex. 23.6; Dt.16.19); when or where it was discovered is unknown but before the rule was written it was already known in practice that it was just to conduct adjudication in that way. The inequality between the litigants was explicitly recognized but in that situation no account was to be taken of it. There are, however, situations in which some inequalities are relevant: e.g., who is entitled to the franchise and who is not depends on what are held to be relevant inequalities – the age at which a person is entitled to the franchise differs from jurisdiction to jurisdiction; but no one suggests that children of three years ought to be enfranchised. Foreigners entitled to residence in a state differ from citizens and whether or not they should be entitled to vote may be disputed. No-one I suspect finds it unacceptable to make those and similar distinctions. The adage – which does not settle how they are to be treated – “equals are to be treated equally, and unequals unequally” may be more clearly, if more pedantically, expressed: “those who are relevantly equal are to be treated equally; those who are relevantly unequal are to be treated unequally”. The question turns on determining who, and in general what kinds of people, and in what kinds of circumstance are relevantly equal or unequal, and about that there will be dispute. And what is the just equal or unequal treatment remains to be discovered.

Women and men are undeniably unequal in very many ways. The question is to determine in which situations some of their inequalities are to be taken into account and in which some or all of their inequalities are to be ignored. Neither H nor I think that the differences between women and men or between landowners and tenants is relevant to granting the franchise but, as everyone knows, that was not always, and even recently, the prevailing view throughout Europe. Did women in the Canton of St Gallen have the right to vote in 1956? The general rule governing the franchise is that in any particular state in which the franchise exists, if only a defined type or kind of person has the right to vote, then only if NN is that type or kind of person is NN entitled to vote. If two men dispute over the ownership of a piece of land, they are to be treated equally in that, for example, their political standing in the society, their physique, or their wealth is not to be taken into account, but when the court, having heard the opposing arguments with equal care, determines that land belongs to NN rather to AA they are no longer to be treated equally so that the land is not to be divided equally between them but be given to NN.[3] What is just is equality and inequality according to a criterion; when people are equal or unequal according to the relevant criterion they are to be treated equally or unequally.

With H, I agree that men and women were once generally thought of as unequal in ways that were mistaken but I find it odd that she quotes Kymlicka apparently approvingly when he writes that ‘women have been “associated with the merely animal functions of domestic labour” ‘. (The internal quotation is from Kymlicka.) Are people – both men and women – who work in the university restaurant engaged in ‘merely animal functions’? Preparing food, which in many cultures in the province of women, is a cardinal difference between humans and other animals, and when we eat we are not engaged in a merely animal function. Is feeding babies at the breast a merely animal function? Is the education of babies and small children, a task that has traditionally fallen to a greater extent to women, a merely animal function? In many hunting and gathering communities, women gathered (and, in many cases, what they gathered provided the main sustenance for the group) and men hunted? Is hunting cultural and gather a merely animal function? Universally, young children learn their language predominantly from women – not necessarily or often only from their mothers – and did they not learn to speak they could not become normal fully developed human adults and human society would not persist beyond one generation. Only if one restricts by arbitrary definition one’s notion of what constitutes a cultural goal to what some men rather than women or other men do, and thinking of every other work as the product of natural instinct is it the case that women’s activities do not achieve cultural goals.

A very good example of women being treated differently from women in ways that would nowadays be generally thought unjust is found in Perelman’s discussion of women’s claim to enter the legal profession as either barristers or solicitors in Belgium between 1889, when it was thought “ too evidently axiomatic to require explicit legislation that the administration of justice was reserved to men” and 1946 when “the reasons given by the Cour de Cassation in 1889 seemed to be so contrary to contemporary opinion that they had become ridiculous.”.[4]

If those who are relevantly equal are to be treated equally and those who are relevantly unequal to be treated unequally, is equality then no more fundamental than inequality? H agrees with Bernard Williams that, as she writes, “Any difference in the way men are treated must be justified …” I think that to be a crucially important and true statement with which I totally concur. I do not understand anything that I have written here or anything found in LJC goes against it. But equality too needs to be justified, for the moral question always is either the particular “What am I to do now?” or the general “What is to be done in this kind of situation?” In the domain of justice those question become “What is now to be rendered to whom? And “In this kind of situation, what is to be rendered to what kind of person?

In our everyday dealings with one another inequalities may be more apparent and the temptation great to take them inappropriately into account when it is to one’s profit to do so, as when another’s interest clashes with my own and I am tempted in bad faith and unquestioningly to prefer mine. The virtue of justice demands more of us; the other is a demand to go beyond ourselves. The admonition that the judge must not treat the poor and the rich differently is necessary, not simply because it is good which it is, but because the temptation to do otherwise may be great. The injunction to treat everyone with equality of concern and respect risks becoming vacuous precisely because it is apparently too exact and tends to evoke no further question. What does it mean to say that dictators guilty of genocide – of which in the last century there have been many – are to be treated with the same concern and respect as their victims or opponents? I cannot think of those who joined the Dutch Nazi Party, the NSB, and assisted the “Green Police” – German Police force that concentrated on rounding up Jews for deportation – with the same respect as I think of those Dutch non-Jews who tried to protect their Jewish compatriots; and I do not think that I should. Even when only thinking about other people, the question as to what is due to whom arises? Thus, the injunction to treat everyone justly at once evokes the question as to what in the particular circumstances is just? I do not for a moment think that Ronald Dworkin thinks otherwise; but the adage does not make that clear.

H contends that an entitlement to a fundamental right does not depend on its acceptance; she is, consequently, reluctant to accept the idea in LJC that a right exists only if it is acknowledged. Again, the disagreement is, I think, at least in part, a matter of how the words are used. The rules governing citizenship vary from state to state and, within the same state, may vary from time to time. In Ireland, by the Constitution of 1937 it was established that a person born in Ireland was entitled to Irish citizenship irrespective of the citizenship of the parents. By the 27th amendment to the Irish Constitution in 2004, that right was abolished, and the right to citizenship now depends on the citizenship of one’s parents – only if at least one parent is a citizen, is the child entitled to citizenship. Those who voted against the amendment – as I did – may think that it was a great and sad mistake to revoke the former right and that the state is the worse for it. The majority was not of that view. But, however one thinks of the matter, in Ireland to be a citizen because one has been born in Ireland is not a right. It once was, I think that it ought still to be, but it is not. The question as to whether or not something is or is not a right or entitlement is a question about present jural fact; a question about what rights actually exist, not about what rights ought or ought not exist.

If one writer uses the word “right” to mean “an entitlement that ought to exist whether or not it does” while another uses the same word to mean “an entitlement that actually exists in a given jurisdiction” they are only apparently contradicting each other and are in fact writing of different things. I think that when H writes of fundamental rights: “I have to doubt that an entitlement to a fundamental right depends on its acceptance…” she is using the word to mean “an entitlement that ought to b”. She gives as examples of “natural” or “human” rights those set down in the Universal Declaration of Human Rights. It is true that the rights in that document are set down as they might have been enacted in particular states; for examples, in Article 9 it is asserted that “ “No one shall be subjected to arbitrary arrest, detention or exile”; in Article 21 (1) that “Everyone has the right to take part in the government of his country, directly, or through freely chosen representatives.”; in Article 26 (1) “That everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. …”; and in Article 19 (1) “Everyone has the right to freedom of movement and residence within the borders of each state.”

It is also true that René Cassin and others involved in the composition of the Declaration hoped that it would become law in all states. The status of the Declaration and of the rights set down in it have been discussed at length, and the emergence of a Court of Human Rights and other international courts has established rights that were not until then rights. I shall ask only in what senses and to what extent did the rights in the Declaration exist at the time of its composition in 1948.

It is clear that those who composed the Declaration thought that the rights set down in it ought to exist in the kind of state or communities they had in mind. They were not thinking of those hunting and gathering or nomadic-pastoral societies that still existed in which some of the rights in the Declaration would make little or no sense. It does not make good sense to say that in a small hunting and gathering community education shall be free at least in the elementary stages, when what is meant in the Declaration is that the financial cost of a child’s education will not fall directly upon the parents but upon the state that will pay for it through its power of raising taxes or that (Article 24) “Everyone has the right to rest and leisure and periodic holidays with pay.” Such rights not alone do not, but cannot, exist in a hunting and gathering society. The Ngatatjara of Western Australia are not a state but, thinking of them as a society, the right to freedom of movement set out in Article 13(1) quite explicitly does not exist since parts of the land that they think of as theirs are forbidden to men and other parts to women. Such rights are simply not applicable to humans as humans but only to humans living in a certain kind of state and, in some cases, (eg Article 24) only to certain kinds of people, namely, paid employees.

The framers of the Declaration were trying to work out a set of rights that would enable the recovery of societies from the experienced but still hardly imaginable collapse of European civilization. The Second World War the European theatre was of two kinds: an imperial war similar to the First World War and other wars with which Europe had for centuries been familiar but it was also the extraordinary, horrifying and scarcely believable Nazi disease that had revealed, to the European self-satisfied moral sense of itself, an unsuspected or not clearly acknowledged evil at the heart of European civilization. Had that disease not been sufficiently widespread in the prevailing communal morality (the living law) of Germany and the countries that it occupied, Naziism would not have succeeded. The rights expressed in the Declaration had not in fact existed in Nazi Germany or in the states that it had overrun. Consider again Articles 9 and 13 (1): “No one shall be subjected to arbitrary arrest, detention or exile.” and “Everyone has the right to freedom of movement and residence within the borders of each state.” H’s doubt has led me to clarify my thinking. A right may be absent in several ways not only one. It may not exist in a community because it has never occurred to anyone to introduce it – I suspect it has never occurred seriously to anyone to give the right to vote to three year old children or to visitors who happened to be present on election day. It may not exist because, although it has been considered, it has been rejected, as the right to citizenship by birth in the state has been rejected in Ireland. It may not effectively exist because, although it is formally established, it is not honoured, as it is alleged that, during the war in Irak, the right of prisoners not to be tortured (Article 5) was not honoured by the UK, the US, the other states that allowed their aeroplanes carrying prisoners to land on their territory, and, obviously, the states, such as Libya, on whose territory and by whose servants the alleged torture occurred.

What was the status of the right set down in Article 9 “No one shall be subjected to arbitrary arrest, detention or exile”? It may once have been, but in 1948 was not, a new and surprising thought. There had no doubt been in the past, and still were, states where arbitrary arrest, detention and exile at the whim of the ruler were commonplace and at least acquiesced in by those who could do little about them, but, for centuries, that the ruler’s authority was limited had been accepted in theory in Europe. Europeans had begun to assume, more or less confidently, that they enjoyed that right – it was part of the rule of law. Until Naziism and Stalinist Communism. There had been times when people had not the right to freedom or thought or religion [see Articles 18 and 19 of the Declaration] and to an extent that situation remained as in Francoist Spain. It had at times been forbidden to be Catholic or Protestant or Jewish or Islamic or Atheist … but never, until Naziism, had it been the case that some people were forbidden not only not to be themselves but, quite simply, not to be. There had been massacres and various kinds of killing had been legal but never before had it been law that a particular race was to be eliminated. The Nazi state had removed, from a kind person, not because of what that person thought but because of what that person unchangeably was, the right to exist. Here, perhaps, is the core of the ambiguity. Dutch Jews that were sent to the transit camp at Westerbork and thence to Auschwitz or other extermination camp were not treated with a concern and respect to which other Dutch citizens had a right; under Dutch law they had the right not to be exterminated; under Nazi law they ought to have had that right but had not. The verbal ambiguity arises because we can, somewhat confusingly, describe that situation in the sentence: “It was not right that the Jews had not that right”. Where Dworkin writes of “a natural right of all men and women to equality of concern and respect …simply as human beings…” I should write that when I deal with human beings simply as human beings I ought to treat them with equal concern and respect – although it is yet to be discovered what that concern and respect requires – and that at that level everyone ought to be so treated and to have that right acknowledged in the law, but when I think of Hitler, Goering, other dictators and their followers I think of them not “simply as human beings” but a men and women who did things for which I cannot respect them. Men and women arraigned before a war crimes tribunal are not simply human beings but are accused of crimes and ought, as accused not simply as human beings, to have the right to be properly judged and to be convicted only if the available evidence is sufficient. But once convicted they are no longer treated as accused; and the rights of the accused and the convicted are different. They remain human beings and what rights they have simply as human beings remain. Two people thought of simply as human beings are equal – just as Q and Z considered simply as letters are equal – and cannot be treated unequally for to treat them unequally is inevitably to introduce a distinguishing criterion.

This question remains: did Jews in Nazi Germany and in the occupied countries have the right to live? That they ought to have had that right is to me and, I suspect, to all readers, correct. But that is not the question. The question is one of fact: did they in fact have that right? The answer to that question is that they did not. They had had it; they no longer had. There is a further question: did many know that Jews ought to have retained that right? Certainly some did and for them a practical question – sometimes called a question of conscience – arose as to what they were to do about it. It was to a situation of that latter kind that Chaim Perelman referred when he wrote in the passage quoted in LJC (fn 53, p.158): “When clearly iniquitous legislation prevents him, for whatever reason, from carrying out his task in accord with his conscience, the judge is morally obliged to resign. He is not merely a calculating machine; and if by his participation he contributes to the functioning of an iniquitous order, he cannot hope to evade his personal responsibility.” That crux applied and applies to each one of us. Suppose another possibility. Suppose, which was not the case, that everyone – other than Jews – had been convinced that it was right to eliminate Jews and that the very idea that Jews might have the same right to live as others simply did not occur to anyone; what then is to be said of a Jew’s right? Not alone do they not then in fact have the right but now it occurs to no-one – except themselves – that they ought to have it. When, because of what they believed, Catholics were killed by Protestants, Protestants by Catholics, Cathars by Christians , Jews by Christians … it seems that few thought those actions wrong; people were thought not to have the right to “freedom of thought, conscience and religion …” (Declaration Article 18 and see Article 10 of the Déclaration des droits de l’homme et du citoyen”). Those who thought that people ought not to have the right to freedom of thought … were wrong to think so but they did think so, and the right did not exist. Similarly, and this we all too easily forget, convinced Nazis thought that Jews did not have the right to live; they were wrong to think so, but they did think so. The great horror of the Shoah is not only that so many Jews (and others) were exterminated but also that many thought it was good (right) to exterminate them.

Unlike the physical, chemical, biological or zoological world in which we humans live, and the laws of which apply to us for we are animals, the properly human world is jural. It is the product of human feeling, thought and decision emergent on that animal base. It is in principle but never wholly in practice what it ought to be. Not alone are we fallible so that any time some of those things that we think ought to be we later discover ought not to be and, perhaps too, ought not to have been but we are also weakwilled – in an older and outmoded terminology “sinful”. We do what we ought not to do, and fail to do what we ought to do. Perelman’s judge may be “morally obliged to resign” – that is what he thinks that he ought to do – but he may fail, for whatever reason, to do so. A right that ought to exist and that people think ought to exist may not, and one that ought not to exist may prevail. A right that it is thought ought to be but is not, does not exist in practice, but it does nonetheless exist as what is thought ought to exist. It exists as an aspiration or a demand. Whenever anyone is convinced that they ought to do something, that conviction is present in the human world but what ought to be done but is not yet done does not in practice yet exist. There is a critical gap between the judgment that one ought to do something and the decision to do it. In that way, a right that ought to exist does not exist until it is acknowledged. What is demanded but not yet acknowledged is a claim. The seventeen articles in the French Declaration of 1789 were expressed in the indicative mood as rights; they were not yet rights but demands. The rights described in the Universal Declaration of 1948 were rights that its authors thought ought to exist in every state although they knew very well that in many states some at least they did not; it was perfectly evident then, as it still is, that the right expressed in Article 21 (1) “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”, did not, and still does not, exist in many of the member states of the United Nations Organisation. The rebels in the present civil war in Libya intend to establish rights that do not yet exist.

One who holds that a particular arrangement ought to be the case may be mistaken, just as one who holds that a particular factual statement is true may be mistaken. And so, about what ought to be the case there will inevitably be both disagreement, agreement and dispute and in coming to their different conclusions humans may be not alone honestly mistaken, but corrupt.

H early in her paper makes what I found to be an extremely important point about the “living law” which seems to her not to “suffice to promote ‘a context in which …we can lives our lives together in peace and justice. ‘ ” (The internal quotation is from LJC, xv). She is completely correct and completely at one with what is put forward throughout LJC. Neither any living law nor any legislation will produce a perfect human social order because, to paraphrase what she writes, the darker elements at work in humans will influence the order that will always in part be the production of those in power and will almost inevitably illegitimately and to a greater or lesser extent serve their sectional interests: “…the living law is not necessarily right and not necessarily universally shared. No human institution is utterly without bias [that is, without disordered sectional interest] and the living law is not an exception. It is not an unbiased, unchangeable, infallible supervening law but it does express what is, or has been, generally accepted to be good.” (LCJ, 53-4) “No moral tradition will be in all respects good; it will inevitably be corrupted by individual and group bias. Some powerful individuals or groups of individuals will, given time and opportunity, favour traditions that enhance their power over others…” (LJC, 63 ) The “communal law is not necessarily in all respects good, for in every society there are the relatively more or less powerful, and the more powerful can, and do, to a greater or lesser extent impose their biased and selfish interests upon the less powerful. Societies are at all times and inevitably dialectical” (LJC, 261) I should add that development, as distinct from mere alteration, is possible only if the present is imperfect; decline is possible only if it possible to fall away from present true discoveries and present good decisions. If one opinion, one decision, or one state of affairs is a good as any other, neither development nor decline, but only alteration, is possible.

What is crucial is that the living law and customs of a society are not the product initially of legislation, although they may later be taken up in legislation; they are simply the way in which over time and interaction people in a community think that they ought to live; its contents are “those ancient customs that, having being accepted by those who use them resemble written law” (Justinian: Institutes, I.II.9 and cf. Digest 1.3.32 ff) But, as H correctly insists, “it does not, …suffice to promote “a context in which ….we can lead our lives together in peace and justice.” The entire page in which the internal quotation is the final paragraph (LJC, p.xv) is dedicated to the proposition that human societies are intrinsically corruptible and will always be to a greater or lesser extent corrupt. The proper function and goal of law is to promote peace and justice but that goal will never be completely attained; humans remain prone to stupidity, pride, covetousness, anger, gluttony, envy and sloth.

With the proper function of the social order, which is to allow humans to live together in harmony and justice, slavery does not sit well. Slave owners commonly knew that the role of slave was not one that slaves could be expected to enjoy or in which they could fully and freely achieve the human good. And yet slavery existed, by some defended, by others attacked. Already in Aristotle’s time the institution of slavery was controversial. Aristotle notoriously defended it and seems to have thought that at least some men and women were naturally slaves whereas others were naturally masters. (The discussion is more subtle than headline condemnation allows.) The Sophists , Thrasymachus, Antiphon, and Lychophron among others argued against it and are said to be those to whom Aristotle refers when he wrote (Pol. 1253b20ff) that some “consider that the power of the master over the slave is against nature because it is only by convention that one is a slave and another a master, and that by nature there is no difference between them; and so, because it rests on power, the institution of slavery is unjust.” In Justinian’s Institutes (I.III.2 Digest 1.5.4.1) slavery is said to be “an institution of the law of nations (contitutio juris gentium) by which one is out under the dominion of another contrary to nature.” That is one of the very few passage in Roman Law where the ius gentium is distinguished from what is natural. [5](Ulpian’s definition of the ius naturale (Inst. I.II.Preamble) is rarely used and the term is several times identified with the ius gentium.). In the book on friendship in the NE Aristotle wrote that the master cannot be friends with the slave qua slave but qua man he can. [6]

That is an appropriate place to end, for the discussion of slavery shows, I hope, how H’s insistence of the natural equality of humans as humans has urged me to clarify some aspects of the idea of relevant equality and inequality. For that urging I am most grateful.

Hafsteinn Thór Haukasson: A few words on authority

Hafsteinn Thór’s (HTh) paper discusses Hart and Raz and raises a matter that is central to their work and is discussed but perhaps not concentrated upon in LJC: the distinction between moral and legal obligation. In response to HTh I shall discuss this question: how are the propositions “NN is morally obliged to do X.” and “NN is legally obliged to do X.” related? It is one of the matters in Oran Doyle’s paper and I continue the discussion in the response to that paper.

Here, without argument, I take “law” to mean the command of one entitled to command another who is reciprocally obliged to obey. “Law” is not used exclusively in that way in LJC.

If NN is commanded by a thief to hand over his money, he is not legally obliged to do so because, by hypothesis, the thief is not entitled to command NN to do so. If NN decides to hand over his money he may later say that he was obliged to do so because he believed that had he not done so he would have be attacked. The thief had threatened him and he had believed the thief. His reason for yielding to the thief’s demand was that he preferred to hand over his money than to endure the pain that the thief had threatened. Was he morally obliged to act in that way? The proper answer is that he was if he thought that, in the circumstances, it was the good thing to do, and was not if he thought that, in the circumstances, it was not the good thing to do. Most fundamentally, one obliges oneself; one is obliged by one’s moral judgment that X is the good thing for one to do in the present circumstances. A general moral

norm that a particular person accepts expresses what that person thinks that it is good to do either always or for the most part in a kind of circumstance, e.g. it is never good to rape someone; for the most part it is good not to deprive someone of his property.

Hart’s example of the bank robber and my slightly different example of the thief (My example gets over the complication that the bank teller may have instructions to hand over money if threatened.) both make the assumptions that the person demanding money is not alone not entitled to do so but also doing what is wrong. In both cases, the person asked to give the money is asked to give it to someone who is not entitled to have it, and by someone who is not entitled to demand it. The difference between the bank robber who wishes to withdraw money from the bank , and the account holder who wishes to do physically the same thing is that the robber is not entitled to withdraw money whereas the account holder, depending on the state of his account, is.

In the effort to eliminate confusion four cases are worth considering:

[1] AA is not entitled to command NN but, nonetheless, commands NN to do something that NN ought to do whether or not AA commands him to do it.

[2] AA is in general entitled to command NN but commands NN to do what NN ought not to do.

[3] AA is in general entitled to command NN, and commands him to do what NN, absent the command, ought nonetheless to do.

[4] AA is in general entitled to command NN and commands him to do what NN, absent the command from AA, is entitled to do or not do.

The question as to why AA is or is not entitled to command NN is set aside for the moment. If it is assumed that if AA is entitled to command NN, then NN is legally and/or morally obliged to obey and that if AA is not entitled to command NN, then NN is not in principle and in the general case obliged to obey. A command as, for example, in [1] below to return a stolen wallet may relate to a specific case or may be the general command that stolen property is to be returned to its owner.

I shall consider each case briefly.

[1] AA is not entitled to command NN but, nonetheless, commands NN to do something that NN ought to do whether or not AA commands him to do it.

AA commands NN return the wallet that NN has stolen from MM. NN ought to return the stolen wallet irrespective of AA’s command. AA is not entitled to command NN. NN returns or does not return the wallet. If he does not return it, he will have failed to do what he ought to have done, what, as the term is used in LJC, “he was morally obliged to do.” If NN thinks that he ought to return the wallet and yet fails to do so, then he has failed to do what he thinks he ought to have done – what he thinks he was morally obliged to do. If he does return the wallet he does what he ought to do; if he returns the wallet and thinks that is what he ought to do, then he does what he thinks he ought – is morally obliged – to do. If NN does return the wallet, we may yet ask why he did so. He may have done so simply because he regretted having stolen it, had become convinced that to have stolen it was wrong, and that now the right thing to do – what he ought now to do, what he is now morally obliged to do – is to return it. He may return the wallet for a very different reason. Although he knows that AA is not entitled to command him, NN may nonetheless return the wallet simply because AA has commanded him and he is afraid of what AA will do if he disobeys. In this case, NN ought to do what AA commands but it is not because AA commands it that he ought to do it, and yet it is because AA commands him that he does it. Although he is “morally obliged” to return the wallet he is not “legally obliged” by AA’s command simply because the relation of commander to commanded (ruler to subject) does not exist between AA and NN.

[2] AA is in general entitled to command NN but he commands him to do what NN ought not to do.

AA is entitled to command NN, that is, the relation of ruler to subject exists between AA and NN. As I have said above, I do not ask here why that relation exists or whether or not it ought to exist. I prescind from those questions and consider only the case where it does exist, and when both AA and NN accept that it does.

In general, AA is entitled to command NN. NN is, therefore, legally obliged to obey AA. The legal character of the obligation is based on the reciprocal entitlement of ruler and subject. To be legally obliged to do what another commands is simply a way of saying that the person commanding is entitled to command the person to whom the command is given. If AA is entitled to command NN but not entitled to command MM, NN is legally obliged to obey AA’s commands, whereas MM is not. That is what the terms “legally obliged” and “legal obligation” mean.

The question raised in [2] is whether or not AA who is in general entitled to command NN is entitled to command him to do what he ought not do. A presupposition of the question is that it would be possible for AA to command NN to do what he ought not do. Another version of that presupposition is to say that what NN ought to do or not do is not defined by what AA may command him to do. Yet another version is that what NN is morally obliged to do is not defined by what he is legally obliged to do. Legal obligation has nothing to do with the moral character of the action commanded. Unless that is presupposed it will evidently be impossible for AA to command NN to do what NN ought not to do because, by hypothesis, NN ought to do whatsoever AA commands.

The matter, already discussed by Plato in Eutyphro and in Protagoras, became acute in the later middle ages in the dispute between Aquininans and Occamites when it was asked if what God commanded was commanded because good or good because commanded by Him. (LJC, pp. 194-5) On both sides of the debate, it was agreed that God was entitled to command whatever He willed. If a divinely commanded act was good only because commanded then what the person commanded ought to do was defined by what was commanded. The good, that which ought to be done, was identified with what was commanded by God, and could not be known otherwise than in the command. If that is translated from divine to human ruler, then what the ruler commands defines what is good. But even some who thought that God commanded an act because it was good were not wholly free of the sense that, even so, what was good could be known only because God’s command had been revealed; certainly, not to steal was commanded because not to steal was good, but was known to be good because God had commanded it to Moses on Sinai. One knew that one was obliged not to steal because God had revealed it in the Decalogue. The rhetoric of the five books of laws, the Torah, is a rhetoric of command: “These are the commandments that the Lord gave to Moses for the people of Israel on Sinai.”[8] Implicit in the Torah is that their Lord’s command obliges the people and is sufficient reason to obey. The Israelites are legally obliged; there is no further question; either there is no other kind of obligation or legal and moral obligation fuse into one. The story of Abraham who was commanded to sacrifice Isaac, his son, provided powerful support for one side of the debate, and an awkward difficulty for the other. The authority of the Lord, their God is absolute; there are no exceptions. The rhetoric of command in the Torah – with the specific statutes removed – is the rhetoric of a pure legal and moral positivism.[9]

God, as all the mediaeval theologians, although for different reasons, agreed, could not command evil. But in the entire history of European reflection – my ignorance confines me to the European tradition – few have suggested that the human ruler could not command evil. Few have unequivocally suggested that there is no difference between good and evil or that what the ruler commands is by definition, and so necessarily, good. St Augustine is thought to have held that a law that commanded evil was not a law, that a command that enjoined the person commanded to do evil was simply not a command. (I am not convinced that Augustine thought so, but it is a question in interpretation that I am incompetent to answer.) Cicero, Aquinas and others held that an unjust law – one that commanded evildoing – was a corruption of law but still a law: AA who is in general entitled to command NN is not entitled to command him to do evil. AA is not so entitled precisely because NN is, irrespective of the command, obliged not to do evil. When AA commands NN to do evil the more original obligation not to do so over-rides the command.

How, when a command conflicts with that original obligation, are we to speak of obligation? I think it is clearest to say that when AA commands NN to do evil, NN is legally obliged because the command is addressed to him by AA who is in general entitled to command him but not morally obliged to obey. If AA is entitled to command NN, NN is legally obliged to obey – that means simply , that AA and NN are in the relation sovereign and subject. When AA commands NN to perform an act that is either now morally required independently of the command (viz. not to steal) or is now morally neutral independent of the command (viz. drive on the right rather than on the left side of the road) NN is not only legally but morally obliged to perform that act. When the act commanded is morally repugnant, then NN remains legally obliged but either not morally obliged to perform it simply because it is commanded (he may be morally obliged for some other reason as the bank clerk might well be) or morally obliged not to perform it. To say that NN is legally obliged to do X is to say that the injunction to do X is issued by one entitled to issue it and that it applies to him. To say that NN is morally obliged to do X is simply to say that NN is convinced that X is what he ought to do.

[3] AA is in general entitled to command NN and commands him to do what NN, absent the command, ought nonetheless to do.

If no-one in a particular society thought that, absent any command, X ought to be done, or not done, in Y circumstances, then there would be no obligation on anyone to do or not do X in those circumstances, for no-one is obliged to do what he does not think he ought to do or to refrain from what he does not think ought he ought not to do. If, on the other hand, NN is convinced that he ought to do or not do X, he is obliged to do or not do X, whether or not he is commanded by another, or whether or not it is generally accepted in his community that X ought or ought not be done. That is the meaning of “moral obligation” or “the primacy of conscience”.

Whether or not a particular proposition is true is independent of NN’s judgment – in other words, NN can be mistaken and hold that the proposition, P, is true when it is in fact false, or false when it is in fact true. But if NN is convinced that a proposition is true, then, whether or not it is true, he cannot fail to hold that it is true. Judgments about what ought or not be done – moral judgments or judgments within the moral domain – may be true or false (LJC, passim & esp. pp 175-6). Accordingly, when NN judges that he ought to do X he may be mistaken – in other words, that he is convinced of the truth of his judgment does not make the judgment true – but it is, nonetheless, his present judgment about what he ought to do or not do that binds.

Judgments about what ought to be done are of two kinds: judgments about what ought to be done now in these circumstances, and judgments about what ought to be done in kinds of circumstances. Laws, whether customary or legislated, state what ought to be done in kinds of circumstances; the law being, as Aristotle wrote in his discussion of equity “… universal …[and] takes the general case.” (NE, 1137b10 cf. LJC, p.138). For it to be generally accepted in a particular society that X ought to be done or not done in a particular case, it must be communally known and so becomes the law, customary or legislated, written or unwritten, natural or conventional, of the society. If there are actions that ought to be or ought not to be performed whether or not they are required or forbidden in the prevailing law, there seems to be no reason why at least some of them would not be found in that law. For example, the universal or general norm that promises are to be kept in principle obliges each one of us but that is not a reason for it not to be made explicit in a society’s laws. So, if AA commands NN to keep his promises, NN is legally obliged to do what he is already in principle morally obliged to do; on the other hand, if AA simply does not issue that command to NN, then NN remains in principle morally obliged but is not legally obliged by AA. Still, when we consider that the communally accepted moral norms are communally known moral norms and hence form the communal moral law, it will be possible, and almost inevitable in a complex modern society, that a particular person or set of persons will accept additional other laws. When more formal legislation emerges to complement the then prevailing communal law, it will often both include many of the provisions already present in that law, and add further detailed ordinances at least some of which may well be in tension with the prevailing communal law and practice. With the emergence of an increasing formal jural practice and legislation, the term “law” is often used to refer exclusively to that practice and the term “custom” increasingly used to refer to the prior law, as appears in Justinian’s Institutes and Digest (Inst. I.II.9; Dig.I.3.32). In those passages from Justinian the reference to the role of popular consent – Ex non scripto jus venit, quod usus comprobavit. Nam diuturni mores consensus utentium comprobati legum imitantur (Right that usage has settled comes from what is unwritten. For ancient customs approved by those who have used them are like laws.) – is significant and is fundamental to the account of both unwritten law – custom or living law – and legislation in LJC. That law is accepted is one of the pillars upon which the actual authority of law depends. Hobbes was mistaken to think, if in fact he did so think, that there had been an historical original agreement but he was right to suspect that in the longer period no authority can survive too much disagreement.

[4] The fourth case is when AA is in general entitled to command NN and commands him to do what NN, absent the command, is entitled to do or not do.

Many customs and state legislated ordinances require or forbid actions or establish rights that would otherwise be left to the choice of those to whom the set of customs or ordinances apply. These are often referred to as “conventional laws” and, by Aristotle in NE. 1134b19, as “tò ?è nomikón (variously translated as “conventional”, or “legal”), and roughly correspond to Gaius’ iura gentium. There is no suggestion in Aristotle or Gaius that such laws are randomly made or unintelligent; they are solutions established as reasonable answers to problems peculiar to the particular society at that time. It is utterly crucial to remember that the division into natural and conventional is a post-hoc theoretical distinction. Still, by whatever words one chooses to make a distinction between levels of laws, it is obvious that the detailed maritime rules governing the carrying of lights at night which, equally obviously, could have differed somewhat from what has been settled, are at a different level from the underlying rule that collisions are to be avoided.

The underlying rule that collisions are to be avoided – which I think of as a natural law of the sea so obvious to sailors that it is rarely expressly stated – is supported by the “practice of seafarers” and, in the United Kingdom since the Steam Navigation Act of 1846, by the detailed collision regulations including those concerning Lights to be shown by night and Shapes by day. One regulation requires the carrying of a sternlight: a white light showing at night between sunset and sunrise over an arc of 135° astern.[10] Before either the practice of seafarers or the Navigation Acts had introduced a rule, it was not a rule, and so no-one was legally obliged; it is an intelligent but detailed solution to a recognized problem. The purpose of the light is to show vessels whether another vessel is coming towards or going away from them. Perhaps, it would have been equally good to require the light to be carried on the bow, but what would not have served equally well would have been to permit a vessel to carry the light either on the bow or astern. If it be assumed that the 1846 Act is in the position of AA and masters of vessels in UK waters are in the position of NN, then NN is legally obliged to show a white light astern over the required arc at night. A master in such circumstances is morally obliged to do so because he is morally obliged to try to avoid collisions – thus taking the interest’s of others into account rather than endangering their lives and livelihoods – and morally obliged to follow the rules because a communally known and accepted way of doing so is needed and the rules state what that way is (the informational character of the law) and that it is to be followed (the command character of the law). Associated with the command is a sanction for breach of the rule (the coercive character of the law).

But if, as in the regulation about the carrying and position of lights, AA is entitled to command NN to do what, absent the command, NN would be legally entitled to do or not do, there might seem to be no limit to what AA is entitled to command except that AA is not entitled to command what is evil. HTh deals with this problem in the final pages of his paper when he discusses Himma’s criticism of Raz. That there are, and ought to be, other limits and what those limits are or ought to be, is the matter of the liberal tradition. (LJC, esp. Ch.7.5, pp. 183-8 & fn.29 on p.186) HTh in his footnote 30 remarks that “The value and extent of personal autonomy lies at the heart of the differences between competing political theories.” I agree and would add that it lies also at the heart of political practice; the setting of the limits is an argument within politics understood neither as an academic discipline, nor as a task to be left to politicians but as the responsibility of each of us in our different ways. On one end of the spectrum there are those who tend to the view that the law should prescribe all virtues and prohibit all vices, (which in practice cannot but mean to prescribe everything that is that the influential findvi rtuous and to prohibit all that the influential find vicious) and at the other end of the spectrum are those who hold that freedom or liberty ought to be the basic (or, in the technical language familiar from computing, the default) position from which to begin the argument so that the limitation of liberty not its extension is to be argued for. In LJC the focus is on the common good, that is the order in which people can live together in peace, but what that in its detail and in particular circumstances is must be the topic of perennial argument, or, as Isaiah Berlin wrote, the topic of perennial haggling. I should add only that the common good demands that argument be permitted, and that it occur.[11]

I have set down here some reflection occasioned by my reading of HTh’s paper. I am very grateful to him for his presentation in Reykjavík and for the paper published here.

Oran Doyle: The Significance of the Living Law.

Oran Doyle [O] in his reading of LJC asks several related and very important questions. I shall respond only to two, and leave others, no less important, to another day. The two questions are these: first, are the provisions of the communal or living law – O points out correctly that several terms are used interchangeably: “communal moral law”, “custom”, “moral tradition” – “merely obligations from the perspective of the community or true obligations, ie moral obligations that do truly apply to us?” and, secondly, does the set of customs, the prevailing living communal law, of a society have secondary rules in Hart’s sense of that term?

I

First, then, are the rules of the living law, the communal moral law, obligations only from the perspective of the community or obligations that do truly apply to us. O stresses that it is “At this point in the book “ that the answer is unclear; I want to address the question itself because of its great importance. Later in the book it does I think become clear – as O accepts – that the provisions of a society’s living law will not be in all respects good and, therefore, do not impose true moral obligations: “This communal law is not necessarily in all respects good, for in every society there are the relatively more and less powerful and the more powerful can, and do, to a greater or lesser extent, impose their biased and selfish interests upon the less powerful. Societies are at all times, and inevitably dialectical.” (LJC, Conclusion, p. 260) My answer now, and the answer we gave in the book is, therefore, unequivocal: the living law imposes legal obligations on the members of the community but not all those obligations are in O’s sense true moral obligations, and some may be legal obligations that one may be morally obliged not to respect. It is, however, imperative to recognize that obligations that at any time and in any society that are taken to be true cannot but be obligations that are thought to be true, just as factual propositions that are taken to be true are propositions that are thought on the best available evidence to be true. Infallibility is not granted to humans and “ ‘Nothing is more unfair,’ as an English historian has well said, ‘than to judge the men of the past by the ideas of the present.’ “[12] That there are true and false judgments in a recurrent theme in LJC; that space was thought to be absolute in Newtonian physics was an historically understandable, almost inevitable, mistake but a mistake nonetheless; that slavery was once thought to be good, did not make it good.

A presupposition of O’s question is that there are true moral obligations. I, too, make that presupposition and it is one that runs through the book, but, as well as being a presupposition, it is a proposition in support of which some arguments are adduced. Of these the most fundamental is that for humans to live is a value; that they cannot live otherwise than socially,;that they cannot live socially otherwise than in a jural world in which the rules governing how to live in that world are known to them, and, if followed, allow them, more or less well, to live and realize their individual values in communal peace and harmony. Human societies are dialectical; some people – and all at least sometimes – will choose to realize individual values that cannot be realized without overriding the interests of others – the thief who chooses to steal another’s money realizes his individual value to have the money but does so only by overriding the owner’s value to keep what belongs to him. To say that one value is better than another, that, for instance, the owner’s value is better than, and ought to prevail over, the thief’s and that the thief ought to respect it is to say in O’s words, if I understand them correctly, that the law which forbids theft expresses a true moral value and requires behaviour that is a true moral obligation. One who would claim that there are in principle no true moral obligations is committed to the assertion that in principle no value is better or more worthwhile than any other. Because individuals and groups of individuals are biased they become morally myopic and, at some level of bad faith, see their own interests as paramount and to be realized irrespective of others; they will tend, if they are powerful enough to do so, to introduce customs and laws that favour the realization of those interests. They may even manage to convince themselves, at least for a time, and try to convince their subjects that they are “morally right”. The laws that they introduce and defend are imposed upon those that the laws oppress, and a rhetoric is devised to justify the laws. [13] Those to whom the laws apply are legally bound by those laws but not morally bound by them and whether or not to obey them is a different question from the question as to whether or not to obey laws that bind both legally and morally as I argued in the response to HTh’s paper.

For true values actually to exist in a society they must be known, just as for true factual propositions actually to exist in a society they must be known. For true values effectively to exist in communal life they must not only be known but be, sufficiently often, chosen. Thus, if in a society in which no-one knows that it is wrong to steal the true value that theft is wrong does not actually exist in that society; if in a society people know that it is wrong to steal but nonetheless steal whenever it suits them to do so, the true value that theft is wrong does not there effectively exist.

If, on the other hand, there are in principle no true values, no true moral obligations, or if, in one’s analysis, one prescinds from any discussion of true value, then the question that remains concerning a purported law or set of laws is whether or not it is a law or set of laws and, accordingly, legally binding. The question as to whether or not it is morally binding simply does not arise. However, even if there are neither true not false values, a law necessarily includes a value for to enact that X is to be done is to be done is to say that it is valuable to do X. The extermination of Jews was a Nazi value. If there are no true or false values, then that it was a value is all that is to be said about it.

II

In about half an hour the untidy girl, not yet dressed for her evening labours, brought him his chop and potatoes, and Mr Harding begged for a pint of sherry. He was impressed with an idea, which was generally present a few years since, and is not yet generally removed from the minds of men, that to order a dinner at any kind of inn, without also ordering a pint of wine for the benefit of the landlord was a kind of fraud; not punishable, indeed, by law, but not the less abominable on that account.

Anthony Trollope, The Warden, (1855) Ch. XVI.partially

Whatever one’s position on the matter of true moral value, the question as to whether what purports to be a law is in fact a law properly arises. That I take to be the matter of Hart’s distinction between primary and secondary rules. I shall try to develop an answer in the light of what seems to me to be either explicit or implict in LJC.

The clearest discussion of the matter is in footnote 43 on page 257: “A bank clerk illegitimately commanded under threat of serious injury is not morally obliged, that is, not obligted , by the illegitimate command but he may well be morally obligated to hand over the money because he judges that the value of his staying alive or unharmed outweighs the value of giving the money. The crucial point is that he is not obligated by the command. Similarly, one living under a regime de facto in power but illegitimate may for his own reasons consider himself to be obligated to act in accord with, but not obligated by, its illegitimate commands.”

Whenever AA tells NN to do something, that is, whenever AA commands NN, the question as to whether or not AA is entitled to do so arises. And for the command to be recognized by NN as authoritative – that is, as a command properly addressed to NN and issued by one who is recognized by him as entitled to issue it – NN must recognize AA as entitled to command him. The difference, as Lichtenberg’s aphorism has it, between a prince and a lunatic is that other people recognize the prince. (There is an ambiguity there that I hope to go some way towards resolving but what seems clear is that NN must be able to distinguish between a command from an entitled or authoritative source and one from a non-entitled source. The crucial feature of the bank robber is not that he can support his command by threat of force but that, whether he can or not, he is not entitled to command the clerk. If NN does not accept that AA is in principle entitled to command him, then he thinks of AA as the bank clerk thinks of the robber.)

As children grow up they are told to do things by adults who, by giving their instructions, present themselves as entitled to do so. As they grow older the children may begin to distinguish between those adults (for example, their parents), whom they recognize as entitled to command them, and those whom they do not. My grandson when he was about four years of age once said to me when I had instructed him to do something: “You’re not the boss of me. My mum is the boss of me.” I took his response as a perfect example of a rule of recognition. The rule that his mother was entitled to give him instructions was a secondary rule in the light of which her specific instructions were primary rules. Between him and his mother a legal system had been established in which she was lawgiver and he the person to whom the laws were properly addressed. Within that small familial legal system as he understood it, there were no other legitimate lawgivers; within that familial system others, as Aquinas wrote in answer to the question as to whether or not anyone whomsoever could make law, were advisors whose advice did not have the force that law properly should have (non habet vim coactivam; quam debet habere lex, …Sum.Theol. I.II.90.3 ad 2). [14]

Hart sometimes contrasts the secondary rules of recognition, change and adjudication with the primary rules of obligation, which may give the impression that the secondary rules are not rules of obligation, which, in fact, they are. When I am told that parliament is entitled to make provisions that I am legally obliged to accept, what I am told, in effect, is that I am legally obliged to accept the terms of whatever provisions are made by that body and that apply to me. Similarly, if I am told that the law courts are entitled to determine what is just in case of dispute, I am in effect told that I must, in certain circumstances, submit to that institution and accept its determinations. Both primary and secondary rules of a given society may be communicated to someone who is merely enquiring about the society, as might an anthropologist, and to whom neither set of rules applies. If I correctly understand Hart, it seems that with his distinction he has shed considerable light on what a significant part of jurisprudence had for centuries been about. To state that custom is like law, or that the decision of the Emperor has the force of law, is to state a secondary rule, but, before the secondary rule that custom is like law is formally articulated, it is known in intelligent practice that custom is law.

Understood in that way, it would be impossible for there to be a law without secondary rules.

Without secondary rules the bank clerk would have been unable to distinguish between the command of the robber and any other command. If it is true that there must be secondary rules, it is true that they must be more or less explicitly known. To the extent that a command binds because it is a command, it must be that the person bound knows and accepts that the commander is entitled to command and that this particular injunction comes from the source, and for people in any society to know and accept that they are bound whether by the laws of Hammurabi, or the Torah, or Solon …they must know not only the detailed rules of, say, Hammurabi’s code, but also know and accept that they are bound by them. The many detailed statutes and ordinances in Leviticus are primary rules; they are recurrently prefaced by the refrain: “The Lord spoke to Moses saying: speak to the congregation of the people of Israel and say to them: (then follows a statute or set of statutes)” and conclude with the refrain “I am the Lord, your God.” (Lev. 19.1-2 & 4 but found passim). The refrains are secondary rules stating why the statutes and ordinances bind. One of the functions of the secondary rules is to distinguish between commands that are simply sentences in the imperative mood addressed by one person to another and grammatically similar sentences in the category established by the secondary rules.

All societies are, and must be, governed by primary rules that have both an informative and a compelling function. The rule informs in as much as it tells what in a kind of situation is to be done, and compels in as much as the commander or those whose task it is to ensure that the rule is observed will compel those to whom it is addressed to act in that way in that kind of situation or mete out punishment if a person is found guilty of breach. All societies have secondary rules that tell both how the secondary rules are to be distinguished from commands that are no more than sentences in the imperative mood or commands given by parents to children, and why it is that the primary rules bind.

O writes that in LJC it is held that “…the living law is just at much at work” in what Hart thinks of as “[a system] that does not count as law at all”. O is correct. The question arises as to whether the difference between the position in LJC and the position in Hart’s The Concept of Law is more than verbal. O writes that Hart “imagines a society without a legislature, courts or officials of any kind” and “refers (without citation) to studies of primitive communities which depict in detail ‘the life of a society where the only means of social control is that general attitude of the group towards its own standards of behaviour in terms of which we have characterized rules of obligation.’ (CL.91)

I do not think that such communities exist but what is true is that in all communities there are expected standards of behaviour that are controlled to a large extent by “the general attitude of the group” that is, by the group that as a matter of social fact exerts some influence on the person tempted to act otherwise than in the approved manner. The rules of polite behaviour are enforced in that way. The example of the teenager who would in other circumstances prefer to pay his bus fare but decides not to in order to avoid his companions’ ‘scorn and derision’ is not quite the same. (LJC, p. 222) In that story, the teenager had a private preference for paying the bus fare and would in other circumstances have done so but knows that, in the group to which he wants to belong, to do so is disapproved on pain of a sanction that he would avoid. If he decides not to pay the fare, he is acting in accord with the prevailing law of the group, but reluctantly from fear of punishment which might be not only scorn but expulsion from the group – the ancient punishment of exile. What Aquinas wrote applies to him: “just as some are not interiorly disposed to do spontaneously and of their own accord what the law commands, they must be exteriorly constrained to bring about the just result that the law intends. That is what happens when the fear of punishment makes them act in accord with the law, in a servile manner not freely. “ (Sum.Con.Gent. III.128.7) It is likely that many readers will be inclined to say that the teenager would have been right to pay, and was wrong not to pay, the fare. The example is chosen in the hope of that response; the story is intended to show that a purely structural examination of law, sanction, and action is possible. The teenager is a member of a community which has, as do all communities, laws that express the values approved in the community – were the values not expressed they would not be known. A law that commands an action (Bus fares are not to be paid.) expresses a communally held value (It is good that bus fares not be paid.). Obedience to the law brings about that value (The bus fare is not paid.). Within the teenager’s community, that law is a primary rule. But he must know that it is a communal rule; he must be able to distinguish it from other expressions in the imperative mood that are not rules of his community and may, indeed, command precisely the opposite action (Bus fares are to be paid.) The rules that show him how to recognize the rules that apply to him as a member of the community are secondary rules; they may be more or less formally expressed but they must exist, they must be known, and to be known, they must be promulgated. Because over time, within the “same” community – there is no-one now living in Iceland who lived there 170 years ago and yet we talk of the Iceland community changing and not simply of one set of people being replaced by another entirely different set of people – and even when at least some members of the community at the later time were members at an earlier time, communal values change, the laws that express them change and so there is in every community some way, more or less formal, of bringing change about.[15] Disputes arise between people within the community. Someone accuses the teenager of having paid the fare. He claims that did not pay and is not guilty of the offense. In response to this problem there will at once arise a way of trying to ascertain the truth, for if he did not pay his fare it is unjust to sneer at him or to expel for having done so. “And therefore it is of the Law of Nature, That they that are at controversie, submit their Right to the judgement of an Arbitrator.” (Hobbes, Leviathan, 15, 213 [78]; LJC, 145, & fn. 27 ). As are Hobbes’ other “natural laws”, that one is simply the intelligent solution to a problem that is likely to arise. “for there may …arise questions concerning a man’s action; First, whether it were done or not done; Secondly, (if done) whether against the Law, or not against the Law.” (ibid., loc.cit.) Finally, there is the cardinal rule: The values of the community are to be realized and are expressed in The Law and the specific laws that intend their realization are to be obeyed.

The cardinal rule is both ambiguous and contestable: ambiguous because what in any specific case the community is, or can be, uncertain; contestable because there is always at least the possibility, and commonly the reality, of tension between some of the values expressed in the laws and some other values in the community. (Commonly flouted regulations are examples.) And so, the cardinal rule, Kelsen’s Grundnorm, becomes rather this: the values expressed in The Law is to be realized and the specific laws that intend their realization are to be obeyed. Values are always expressed by people, and so two questions arise; first, as to their goodness or badness; secondly, as to the legitimacy of the legislator. Those are not Hart’s question and I shall leave them aside; they are discussed in the eleventh chapter of LJC.

Hart discovered the important distinction between primary rules, that authoritatively guide the actions of those to whom they are addressed, and secondary rules that enable people to distinguish between those primary rules and other commands that may be addressed to them, that inform of them how disputes are to be settled, of the sanctions that may be imposed in case they break the rules, how rules are changed and who is entitled to change them. O suggests that Hart suppose that the existence of secondary rules in a particular social order distinguishes that order, from one from one that lacks secondary rules. What I have suggested here is that both kinds of rule are found in every society, for in every society it will be possible for AA to give a command to NN without being entitled to do so and correspondingly possible for both to know that.

Hart distinguishes between legal systems on the criterion of the presence or absence of secondary rules; I incline to distinguish them according to the comparative complexity, explicitness and clarity of the prevailing secondary rules, and according to the importance and character of the distinction between relatively insignificant and significant rules. Everyday rules of polite behaviour exist in every society and breach of them incurs often only an everyday sanction such as disapproval but murder and theft, for example, are never dealt with only in that way. It can and does happen that actions that were once dealt with in a formal way no longer are but fall into the category of actions dealt with by more everyday sanctions; few Europeans now remember a time when adultery was a crime in most European jurisdictions, and many find it most odd that it in some non-European jurisdictions it remains one.[16]

A secondary rule that specifies who, or what institution, is entitled to make primary rules, is critical. From the secondary rule that the decision of the Emperor has the force of law follows that a particular decree of the Emperor legally binds those who are in principle legally bound by Roman law. But secondary rules need not be so formally expressed and, indeed, the formal expression of the secondary rule that the Emperor’s enactment was law followed already established and accepted practice. Similarly, the secondary rules that informs the members of a society that primary rules of a particular living law bind them is present in intelligent practice before it is formally expressed. A particular custom is customary law because the members of the community accept it as such even if they have only a hazy idea or none at all as to why some customs oblige and others, more transient, have some social influence but are perhaps merely fashion. Before Hart’s discovery the distinction and its importance was theoretically unnoticed.

So far, so good. As far as the analysis has gone the effort has been to distinguish law from not-law, and there has been no need to distinguish between good and bad law or to distinguish between laws that bind independently of the command and laws that bind only because properly commanded. Nor has there been any need to raise the question as to why someone or some institution who claims to be the legislator is entitled to be. Hart’s analysis is, as he said, sociological, a description of jural fact.

There are two questions: first, is AA the legitimate ruler? Secondly, does AA remain the legitimate ruler if he becomes a tyrant and enacts evil laws? In LJC (257) it is suggested that “The entitlement of legislators to legislate and the entitlement of judges to adjudicate are for the most part accepted, and in that acceptance they are established. That is ‘the social contract’. Legitimacy in the end rests on its being accepted.” In many – but not all – modern states, the legislator is parliament to which actual legislators are elected and adjudication of disputes whether civil or criminal is undertaken by a corps of judges, either elected or appointed, in a system of hierarchically ordered courts. That system is in fact either accepted or acquiesced in, by the vast majority of citizens, and it is on that acceptance or acquiescence that the legitimacy of the parliament and judiciary rests. When acceptance and acquiescence sufficiently diminish, the state tends towards collapse. There are and have been other systems of government and they too may be legitimate: a president for life to be succeeded by the nominated heir is not necessarily illegitimate. In the period of kingship in Europe the reigning king or queen was accepted as the legitimate ruler and there were rules governing the succession, sometimes more or less quietly accepted by those who had much interest in, and were affected by, the matter although many, often the majority, as Machiavelli knew, had often little interest in the storms on Olympus provided that they were left to carry on their lives in relative security. Nowadays the influence of rulers, of whatever kind, on the lives of all members of the society is much greater and correspondingly greater is the interest of the ruled.

Successful invaders, from Europe, North Africa and Asia sought, often very dubious, legitimating reasons that they hoped would sometimes genuinely, more often conveniently, convince those upon whom, in the longer term, the success of their invasion depended. William, Prince of Orange, could not have defeated James to become ruler of the three kingdoms of England, Scotland and Ireland had not he been supported by a sufficiently powerful alliance of domestic nobles. In the end, the right of conquest, or the attainment of power, more or less admittedly, commonly and everywhere, underlay the claim to legitimacy. Castile and Aragon became the legitimate rulers of Andalus when, having defeated the equally legitimate Visigoth rulers who preceded them, they found sufficiently acceptance. The same is true of the Celtic, Roman, Anglo-Saxon, Danish and Norman invasions of England and Wales, the Norse invasions of Western France and the later Norman invasion of Southern Italy and Sicily, the Ottoman Empire, the Manchu invasion of China … But, as civilizations became more advanced, rarely, and more rarely still as different ideas about legitimacy developed, was success given as the sole legitimating reason. Most present states have their origins in force and fraud.

In the tradition of practical politics the question of legitimacy in Europe increasingly concentrated on the legitimacy of the present incumbent often against the claims of a pretender supported by the incumbent’s opponents. Usually the pretender and supporters, who, to succeed, had to rely on force, provided reasons to show that the pretender, rather than the incumbent was the legitimate ruler. Might may well make right but tends to be accompanied by more or less good, more or less spurious, legitimating reasons; ragion di stato. Machiavelli and Giorgione are the great theorists – not necessarily the defenders – of this tradition

The practical dispute was between claimants: which one was the legitimate ruler? Theoretical discussion, as in Plato’s Statesman, was largely about what type of person the ruler ought to be, what knowledge and virtues the ruler ought to have. That there ought to be a ruler was for the most part taken for granted. Aquinas, in a set of questions that one might expect to have little to do with jurisprudence, asks in the first part of the Sum.Theol. (I.96.4) whether or not in the state of innocence – the state in which humans would have lived had not their first ancestors been expelled from the garden of Eden – there would have been one who ruled over others.[17] His answer is the in Eden humans would have been social animals; that social life is impossible unless one person who intends the common good presides, for many intend many things but one intends one thing. In that place he refers to Aristotle who “in the Politics says that when many are ordered to a single goal, one is always found who is principal and governs.” Aquinas’ background context is his own society and so he has in mind a single person as ruler, as, indeed, has Plato in Statesman whereas Aristotle writes of different types of rule (Pol. I.I.1252a10) but all three think of some type of governance as necessary for the wellbeing of the community “for every community is constituted with a view to some good” (Pol.I.I.1252a1). In LJC the good is the communal order in which everyone, each pursuing their own ends can live in peace and harmony and of which the sustaining virtue is justice. It is not a particular end to be achieved as the end to be achieved by group of walkers coming down a mountain in a fog might be to reach home safely or, to take Aquinas’ own example, as the end to be achieved by an army is victory. Those examples do not illustrate the common good of a society; a society is not an organisation with that kind of goal in view, although in extreme cases and temporarily, as when a city is attacked, the defeat of the enemy can become to an extent a goal of that kind. As I write, in August 2011, there is civil war in Libya; the “common good” of Colonel Gadhaffi’s state – that is, the good shared by its supporters – is its survival; the “common good” of its opponents – the good shared by the rebels – is its overthrow. But the common good of whatever society survives the war is an order within which each person, while caring for the good of others, freely pursues his own goals. A society is an order that ideally is the just interaction between its members; its common good is the order in which that interaction can take place. To have confused and to continue to confuse, both theoretically and practically, these two very different senses of the single term, remains the bugbear of jurisprudence and political philosophy generally.

That order is in part given, and in part continually chosen. It is given in as much as we are animals and live in a given order as chimpanzees, gorillas and other animals do. That order is what Ulpian in his immensely illuminating and sadly neglected insight called the ius naturale. Human social orders are continually chosen by people living in a way that allows others to live; that is how I understand Hjördís’ insistence on the importance of equality. Human social orders will be in part common and in part peculiar to the particular order; the attempt to work out and communicate what is common resembles Gaius’ ius gentium; what is peculiar to a particular order is his ius civile. Because, and to the extent that, the human order is subject to deliberation and choice, humans ask questions, share answers and make both individual and communal decisions and so continually choose the order within which they live. But they do so in two distinct ways. First, each single person and each smaller group, chooses how to live in the order in which they finds themselves. To the extent that it is an object of choice the human social order is a moral order. Secondly, each knows that order only by being educated into it; we learn our order as we learn our language. We learn the rules of the order before we learn that some are thought “conventional” and some “natural”. The Icelandic child does not learn that “takk fyrir” means “thanks” but how and when to use “takk fyrir” and only later that others make a different sound or word, and say “thanks”,“go raibh maith agat” or “grazie” in the same circumstances. Every language is rule governed and speakers follow those rules but they do not theoretically know them; somewhat similarly every human society is rule governed and its members follow or fail to follow them without necessarily knowing them abstractly and theoretically. A language and a society are orders that allow humans to become fully human.

It is evident that in a non-literate society none of the rules governing the prevailing order are written. It is equally evident that the specifically human rules – i.e. rules at the level of deliberation and choice and not those ‘natural practices’ of which Ulpian wrote – must be communicated whether or not they are properly of the ius gentium or of the ius civile. Certainly a child learns how to behave in part through language: “Give Etty back her toy; it is hers and you may not take it home “ but usually not by being told “Thou shalt not steal”. Thus, a child learns what property is, what it means to own something, how to use such words as “mine”, “yours”, ‘hers”, “his”, “ours”, “theirs”, and that it is wrong to steal. The child learns, sometimes in words, sometimes as a result of a parent’s response, that breach of the rule not to steal, if discovered, brings about disapproval and perhaps some further punishment.

The injuction against theft is only one of the many primary rules that the child learns. The secondary rule is the authoritative context within which the child learns them. That authoritative context is the relation between child and parents or other significant adults and which, in part, is the human transformation of the similar relation between parent and infant chimpanzee or gorilla. As the child grows that authoritative context is further transformed as the child learns how to think of the relation between him and his parents. He learns to feel about himself as one bound to obey parents and some other adults. He learns that and other primary rules as authoritative commands and gradually takes himself to be subject and the adult to be sovereign. As the child grows up he discovers in his practical intelligent everyday living that adults, too, are subject to a law that is sovereign. Only later, if ever, does he learn, and think explicitly think of, the rule as requiring reasonable behaviour. That the law binds, what the law enjoins, how it is known, how breaches are dealt with are secondary rules that are necessarily present and part of the law of every human society.

There is in some societies an explicitly identified lawgiver – not one who is thought only to tell the laws; a lawspeaker – but one from whom the laws are imagined to emanate. That image of the lawgiver dominates the European jurisprudential imagination from at least Plato’s Statesman. In societies where there is no clearly identifiable lawgiver from whom the laws emanate, and in which the prevailing laws are simply unquestionably present and binding, the laws, particularly those thought to be most imortant, are often imagined as mysteriously sovereign and often from a mysterious and superhuman source, as Antigone says in Sophocles: “For neither to-day nor yesterday, but from all eternity, these statutes live and no man knoweth whence they came.” (Antigone I.XIII.2) In Hammurabi and in the Torah, the laws emanate from God. Hávamál, although a compilation of wise sayings rather than laws, is from the high Norse god, Odin. In aboriginal Australia “the law” is from the ancestor human/animals in the original time when animals and humans were one, as they originally had been before the present fractured time; to keep the law is to bring to the present the sustaining power of the origin.

The idea of a legislator and the practice of legislation was already developed when Plato wrote. The tension in Antigone is between the laws that live “from all eternity …and no man knoweth whence they came” and the laws of the Creon, the legitimate lawgiver. In Leviticus the tension is between the laws given by Yahweh to the people of Israel through Moses – who in the Torah is a lawspeaker only – and the abominable practices of their enemies: “Defile not ye yourselves in any of these things: for in all these the nations are defiled which I cast out before you. … Ye shall therefore keep my statutes and my judgements. “ (Lev. 18. 24 & 26) The tensions are different but in both the idea of an authoritative lawgiver is present.

Plato in Statesman takes the presence of an identifiable lawgiver or legislator for granted but raises explicitly the question of the truth of the laws. Laws expressed as commands are neither true nor false. “A dead man shall not be buried or burned within the city” (Twelve Tables, X,1), understood as an imperative, is neither true nor false but underlying it is the unexpressed proposition: “It is good that a dead man be not buried or burned within the city”. That proposition is either true or false. One possibility is that its truth or falsity cannot be known or can be believed only in authoritative revelation. Plato thought that underlying commands were true or false propositions that could in principle, but with difficulty, be discovered to be true or false. If that is accepted, a new explicit criterion of legitimacy arises: a law based on a true proposition is good; one based on a false proposition is bad. The case of a law that commands what is, absent the command, more or less indifferent – a ‘conventional law’ in one of the senses of the adjective – is correctly understood differently; a conventional law in that sense is one that is a law only because it is enacted. (Aristotle, NE,1134b,18 & Rhet. 1373b, 2ff.)

It is important to notice that a true proposition upon which an expressed law rests is not yet a law for the assertion that “P is true” has this difficulty: if I assert that Archimedes’ law of the lever is true, I do not mean that it became true when I asserted it. But that is ambiguous. Was it true before anyone knew that it was? I think the clearest solution to what may seem to be an aporia is this: before anyone knew that Archimedes’ law was true, it was neither true nor false simply because the law expressed in a mathematical proposition did not yet exist; but it is true that the world was such that it was governed by the law that Archimedes later discovered. Levers were widespread and in common use before their principle or law was discovered.

A “conventional” law, as Aristotle used the term in both the Rhetoric and the Nicomachean Ethics, is one that rests upon a proposition that it would be good to enact that X be done or that Y be done and to do both together would be unwise or, in the limit, impossible. What Aristotle, in those places, calls a “natural” law is one that rests upon the proposition that X is the nature or character of the case, as that in most circumstances contracts are to be honoured.

A good law or set of laws, whether communal or legislated, describes and establishes the good communal order. The presence of the legislator, whether supernatural or human, and the corresponding presence of the person ruled, pervades the European jurisprudential imagination as it pervaded its Middle Eastern influences. So, in Aquinas’ in the third article of his question, “Of the Essence of Law” (ST.Ia.IIae.90.3) thinks of legislation and the issuing of commands given by one entitled to command and backed by force – the vis coactiva; and Hobbes defines law as “…Command …of him, whose Command is addressed to one formerly obliged to obey him. And as for Civill Law, it addeth only the name of the person Commanding, which is Persona Civitas, the Person of the Commonwealth.” (Leviathan, XXVI, 312 [137]) Bentham and Austin retain that image although they tend to omit the idea of the legislator’s entitlement and so, as HTh remarks, “were unable to explain the difference between the law and the orders of a gunman…”. Part of Hart’s task is precisely to explain that difference and so to recover and develop what was at best and inchoate and ill worked out aspect of the tradition.

That image and idea of sovereign and subject is not absent from LJC but concentration on the living law and on the similarity between learning our language and our morals brings another image into sharper focus. Humans live in a physical, chemical, biological, zoological and jural world. To conclude this discussion of the authority of law I want to leave aside the question of the particular legislator’s authority to concentrate on the authority of the jural world.

When we learn our mother tongue we learn a rule governed communication system that allows us speak to one another, to understand ourselves and the non-human world, to become humanly responsible for ourselves, and to develop into the adults that, at the end of our lives, we eventually become. The rules of our language we take for granted. The rules govern but by what authority? In English, for example, the interrogative “Were you here yesterday? and the indicative “You were here yesterday” are formed by inverting pronoun and verb but the indicative “I saw the boat yesterday” and interrogative “Did you see the boat yesterday” are formed the by the addition of the interrogative form of the past tense of the verb ”to do” and a version of the infinitive of the verb “to see”. Only with great difficulty can the historical linguist trace the rise of that locution; the child who learns it is uninterested in that history and is content to know that that is what is done, for the child wants to learn how to speak. The proximate teaching authorities are the parents and other speakers, the remote authority is the language itself. Similarly, the jural world is learnt from those who already live within it; the proximate authorities are those who teach it, the remote authority is the jural world itself. The child, whose mother tongue is Icelandic or Italian and who later learns other languages discovers that the rules of other languages differ from those of his mother tongue while still remaining languages. Similarly, the child may learn in everyday experience, that human jural worlds differ from one another while still remaining jural worlds, Languages differ in many ways but there are, and must be, fundamental rules. No language can fail to distinguish between questions and answers, between affirmative and negative assertions …; similarly, as was argued throughout LJC, no human jural order can survive the lack of some fundamental rules “…dictating Peace, for a means of the conservation of men in multitudes…” (Leviathan, XV,214 [78]). A language allows those who speak it to communicate humanly with one another; a jural order allows those who live within it to do so in peace. The cardinal differences between a language and a jural order, are that no-one in a linguistic community wants to be unable to communicate (the bank robber demanding money wants the clerk to understand the command) whereas in a jural order some are uninterested in whether others live well or badly (the thief or embezzler is uninterested in the plight of the victim) and will either refuse to act in accord with its rules or, if they can, will try tyrannically to impose rules that favour themselves to others’ detriment. When the dominant image of law is legislation enacted by the sovereign to bind the subject, inevitably the question of the sovereign’s authority and so the authority of law itself arises. If that image is replaced by the image of a jural order which, as expressed in rules, describes the order in which people actually live, then the focus of the question of the authority of law changes. When a parent tells the child who asks why that is how to say something (“I have made a cake” not “I have maked a cake”) that that is how we speak, or when a child asks why a toy is to be given back to its owner or why it is wrong to suck soup directly from the plate answers “Because it is his toy and that is what we do” or “that is how we eat” the parent is saying something quite profound. A language is authoritative because people speak it; a jural order is authoritative because people live within it.

As societies increase in size and complexity, as their jural orders becomes increasingly complicated, as legislation becomes increasingly formal and a distinction between actions within and without an adjudicative structure with attendant penalties becomes more institutionalized, as enacted laws become the dominant image of law, as the number of laws enacted increases almost exponentially to rule ordinary living in increasing detail, as laws are thought of almost exclusively as expressions of the commands of sovereign to subject, the question of legitimacy tends to be restricted to a question of the sovereign’s entitlement to issue commands to subjects bound to obey. Law begins to be felt and imagined by those who live within the jural order that it partially describes more as an external imposition than as the expression of an order outside which humans cannot live. Still, the idea that the law expresses or should express “ourselves” remains and becomes critical when a practice accepted and even required in one group offends the ideals of another, as has happened recently in France in the dispute over the wearing of the Muslim veil, or when a liberty is demanded by one section of the community and rejected by another as now in Poland concerning procured abortion or when an action is legally permitted that previously was not as in the recent Maltese decision to allow divorce. Below statute are communal attitudes that delay or hasten change whether that change is development or decline. In LJC the “living law” is, as O rightly says, is largely conterminous with “the moral tradition”. That can mislead in two ways. First, the impression can be given that the moral tradition is static, which it is not. Very many changes in state law over the past two centuries in many countries have been successfully urged by great changes in the moral tradition. Secondly, and this I think is insufficiently clear in LJC, in large and heterogeneous states there is no single moral tradition and so changes in state law have been brought about not by a homogeneous living law or moral tradition but by the one that is for the moment dominant.

[1] If one must choose between what one holds to be equal, and so indistinguishable, alternatives one must resort to an aleatoric method like tossing a coin or drawing a straw.

[2] H quotes (see at her fn 13) Christensen: “…there can be no natural differences between Greek and Barbarian, man and woman, noble and commoner, free man and slave.” In two cases the differences are institutional (noble and commoner, free man and slave) in one (Greek and Barbarian) the differences are in part cultural and historical and in part natural – the dark brown people of southern India naturally differ from the lighter brown people of the north in that one group is a darker colour than the other; in one (man and woman) the differences are natural, as, in some accounts, the difference between free-man and slave was wrongly thought to be. The problem, not solved by denying them, is how to deal with the differences between man and woman. What is meant by claims that there are no natural differences between the letters A and R is that the differences between them are not differences as between letters and not-letters. A and R differ from each other but are equally letters within the Roman alphabet. Indian, African Plains and African Forest elephants naturally differ but are equally elephants.

[3] Cf. Aristotle, NE 1131a10: “ …the just is the equal as all men suppose it to be, even apart from argument.” where he discusses some difficulties surrounding the interpretation of that aphorism. He does so at greater length in Pol. 1282b14 – 1283b 14 where he asks if the best player or the best looking or the tallest or the wealthiest is to be given the best flute;

[5] Strictly speaking , I.III.2 in the Institutes contrasts the ius gentium with nature rather than with the ius naturale: Servitus autem est constitutio juris gentium, qua quis domino alieno contra naturam subicitur. (“Slavery is an institution of the law of nations by which one m an is made the property of another, contrary to nature.”) However, in I.II.2 it is said that “Wars arose and in their train followed captivity and then slavery which is contrary to the law of nature; for by that law everyone is originally born free.” [bella etenim orta sunt et captivitates secutæ et seervitutes, quæ sunt juri naturali contrariæ (jure enim naturali ab initio omnes homines liberi nascebantur)] But, to know what is in accord with and what is contrary to nature is to know the ius naturale.

[6] In the NE, VIII, 1161b5, Aristotle wrote that a master cannot be the friend of a slave qua slave but qua man he can. Cf. Pol.I.1255b,10-15.

[7] In the NE, VIII, 1161b5, Aristotle wrote that a master cannot be the friend of a slave qua slave but qua man he can. Cf. Pol.I.1255b,10-15.

[8] It is also a rhetoric of covenant but I leave that aspect of the Torah aside.

[14] Aquinas in that place makes clear that when he writes of the legislator he has in mind one who is entitled to make law for the entire society.

[15] The problem of the “same” is not merely one of usage. For example, a constitution established in a state by popular vote in 1900 is, unless amended, commonly held to govern the same state in 2011 when very few if any of the original electors are still living. That one set of people were held to bind another set was Hume’s and Adam Smith’s clear and fundamental objection to any kind of original contract. See G.N.Casey, ‘Constitutions of No Authority’ (2010) 14 The Independent Review 325.

[16] As far as I know there remain no European jurisdictions in which adultery is a criminal offence but there are societies in which it is treated as such in a kind of parallel non-state system.

[17] I am indebted to Jean Porter’s valuable Ministers of the Law, Eerdmans, Grand Rapids, 2010 for this reference. Modern readers must remember that Aquinas wrote of the prelapsarian state described in Genesis 2.4-3.24 before “the Lord, God sent him forth from the garden of Eden, to till the ground from which he was taken. He drove out the man; and at the east of the garden of Eden he placed the cherubim, and a sword flaming and turning to guard the way to the tree of life.” (3.23&24) as of an historical event. To us who no longer think that, the passage remains historically interesting in that it shows that Aquinas held the relation of ruler and ruled to be essential to human society in both the prelapsarian and lapsarian condition.

Amartya Sen asked two questions: (i) Why equality?; and (ii) Equality as to what? He believed that the answer to the first will necessarily entail an answer to the second. (XI) However, to this reviewer, conspicuous by its absence is the question “Is each human being owed equal respect?”In fact, each of the essays gives the impression of presupposing that respect for other persons ought to be equal and then striving to find justifications for that outcome. In other words, there are no essays that argue that, in fact, we do not owe one another equal respect.

The project is one of philosophy, principally, political and moral philosophy and as such, it is predominantly a theoretical one, being light on concrete application, notwithstanding the editors’ questions. Whilst illuminating the concept of equal respect as well as its importance in human interaction, the collection does not attempt to argue that equal respect is the only or principal guiding value; we are not advised as to the circumstances in which other values may prevail over our duties of equal respect.

It is deeply unfair, of course, to criticize a collection of essays for what it does not achieve rather than recognize its merits as an excellent and nuanced contribution to contemporary philosophical discourse. Thus, the reviewer will now turn to some of the articles to demonstrate what to her seemed to be the most interesting ideas and conclusions contained within their pages.

However, before beginning that task, it is necessary to clearly distinguish – as accomplished clearly in the book, in particular by Stephen Darwall and Anna Elisabetta Galeotti – between “recognition respect” and “appraisal respect.” The former indicates equal respect for each human being solely on the basis of their humanity – it is on this that the book concentrates. Appraisal respect, as the name suggests, is the respect we give to others based on their attributes, be they moral virtue, musical virtuosity, athleticism or erudition. Clearly, appraisal respect is not owed equally to everyone as everyone carries such attributes in unequal measure. Moreover, one can merit appraisal respect in one area but not in another. Noone would question Mozart’s musical talent and the due respect on that ground without respecting his personal life as one displaying moral virtual and one rather doubts he was a gifted ball player.

Beginning with Strozzi’s depiction of Mark 12: 13-17 (“Render unto Caesar…”), Darwall takes a tour of respect as recognition, illustrating the “second person standpoint” as a fundamental component. (1-23) Galeotti expands upon this theme to suggest that recognition respect and appraisal respect have closer links than first appear and argues that even recognition respect can be suspended by unspeakable crimes, justifying punishment according to law, though never torture. (The subject of the death penalty was left, disappointingly, unaddressed.) (24-53, especially at 35-36) This is because respect is not so much felt or given as done. We manifest respect through our behaviour; hence can suspend it in appropriate circumstances.

Ian Carter tackles the question of why equal respect. Given that recognition respect is based on the moral agency and personal autonomy of individuals, why should we not vary our respect based on the evident variations in capacity for the exercise of personal autonomy according to individual characteristics? (54-77, especially at 57-8, 61) Carter answers by rejecting Bernard Williams’ demand that we take the other person’s internal point of view and argues instead that recognition respect must be opaque; we must refuse to look inside the other person and assess them, thus coming to a conclusion closer to a Rawlsian position. (66-70) Carter also reverses Sen’s assumptions and argues instead that one cannot answer the question “Equality as to what?” until we have some answer to the question “Why equality?” that is, we have some justification for equality. (56)

Carla Bagnoli returns to Kant and the significance of dignity and its basis, autonomy, as the foundation of equal respect, and throws some light on the related questions: what is individual autonomy and why does it have moral value? (78-100)

Hillel Steiner, Luca Beltrametti and Lester H. Hunt all address in various modes the requirements of equal respect in economic affairs. Steiner persuades us that, despite neoclassical arguments, free trade can be exploitative. (101-112) Using an example of fair trade bananas, he demonstrates that buying at lower cost is a form of exploitation as the purchaser is benefiting from earlier exploitation – and lack of respect – that has put the producer at a long-term economic disadvantage, thus forcing him to sell at a price lower than he would have absent the earlier exploitation. (108-10) He successfully answers the question “Why pay more?” but he also turns that question around and asks the reader: “Why pay less if it means being unjust?” (107)

Beltrametti considers paternalism in economic affairs and begins from B. New’s position that market imperfection is a necessary, but not a sufficient condition to justify paternalism. (113-127) Paternalism may represent a failure to treat its beneficiaries as “ends in themselves” but there are some examples where this is not so. New defines paternalism as A: an interference with the decisional autonomy of the beneficiary; B: with the intention of improving that person’s wellbeing; and C: without the consent of the beneficiary. (114) Beltrametti then distinguishes authoritarian paternalism (which is coercive) from libertarian paternalism (which changes the weights of ones’ reasons for action, such as introducing “default” options in public and private law) (115-117) and finds that the latter is not necessarily more acceptable (or respectful of its beneficiaries) even though it veils itself with the illusion of choice. (122) He adds two more which do not strictly fit with New’s definition, namely Ulysses’ paternalism (which is consensual) and donation paternalism (which requires consent of recipient). (118-120)

Hunt takes us on a disturbing tour of Auschwitz to rebut Robert Nozick’s conclusions in Anarchy, State and Utopia. (128-147) In a complete reversal of respect, Hunt describes the treatment of Jews in the labour camps of Auschwitz, reduced in the eyes of their exploiters to the ultimate “consumable resource.” Each lost 3-4 kg per week and could usually survive for about 3 months before being overcome by starvation, disease or deliberate disposal. Each body was literally consumed, with fat and proteins being converted into labour (like coal or wood burnt for energy) and even in death, body parts were consumed for gold, mattress stuffing and soap. The value of each person was reduced completely to an economic resource. (130-132) In fact, Hunt claims that the labour camps were inefficient even on their own sordid terms; they were poor factories with low output. Furthermore, there was a clear “net-loss” (Kaldor-Hicks) – the persons robbed of their own bodies lost more than was gained by the operators. Nonetheless, this economic analysis seems hardly adequate to explain why we find it so morally horrifying. Nozick’s utility analysis does not explain why it would still be wrong even if it had been economically efficient. Thus, concludes Hunt, there must be some deontological explanation beneath or beyond the economic analysis. (133) Hunt turns to Kant, reminding us that human life has a dignity and not a price; (134) thus we cannot dispose of one Jewish worker and replace him with another of greater “worth” (fatter, fitter, stronger, healthier). (135) Auschwitz’ factories represent the extreme of treating persons as means and not ends in themselves. (136) The second part of Hunt’s article, only loosely connected to the first, discusses the justifications for taxation in democratic states and ultimately concludes that although taxation might be a form of paternalistic coercion (respectful of taxpayers and their ends), in fact, it usually slides into exploitative coercion (like robbery) owing to the clumsiness of states as well as their occasional lack of moral rectitude. (143)

Valeria Ottonelli takes us on a tour of the difficulties of translating the theory of equal respect and formal equality into the realities of the public sphere. (148-173) Examining three concepts – democracy, justification and equal respect – she argues that equal respect mandates democratic governance.

Peter Jones makes an interesting and rather rare foray into the implications of equal respect internationally.(174-200) Despite the fiction that remains the basis of international law, the Westphalian model is no longer a fact of contemporary international relations: states are not independent boxes and certainly not equally independent. (178) Hence, states are not in equal positions to “tolerate” one another as it can only make sense to say that A tolerates B if A has some power to intervene in B and chooses not to exercise it. (177) Furthermore, tolerance or intervention is not a question of a cost-benefit analysis or a perspective of self-interest. (179) Jones argues against intervention as a matter of respect for individuals, rather than respect for “peoples” in some kind of artificial personification of “the state” (186) (defined by Rawls rather than by the Montivideo Convention[2]). (182-184) Some people (persons) may indeed prefer a system that is not liberal-democratic. We can still maintain that a liberal-democratic system is better – even for them – but that is not adequate reason to intervene. (192) In the end, Jones’ conclusion is in line with contemporary international law, which permits humanitarian intervention only in extreme situations.[3] Jones is perhaps over-optimistic about the extent of individuals’ consent to be governed – in liberal-democracies or otherwise – but this paper is theoretical, not practical and thus can be excused.

Elisabeth Telfer completes the book with her essay on humour and equal respect, focusing on ways in which humour can be used to undermine equal respect. (201-213)

On reflection on all the chapters considered together, it becomes less convincing that the collection justifies equal respect at all. Instead, each chapter can be considered as an explanation of and justification for a standard of “equal minimum respect.” Accepting Galeotti’s conclusion that recognition respect and appraisal respect are not of a different nature but rather shades of the same thing, each of the essays can be read as a justification of a presumption of respect at level x for each person qua person, which amount can be increased on the basis of appraisal (x + a) or can be reduced on the basis of exceptionally immoral or anti-social behaviour (x – b). However, x – b can never fall below a basic threshold (y) for example, to justify torture, non-consensual medical experimentation, or to treat human bodies as consumable economic resources. y is the level of equal minimum respect.

It has not been possible in this short review to give equal consideration to each of the commendable essays in this collection but it is hoped that this review will encourage readers to take a closer look at the book and, for those not fluent in Italian, to seek out further work by these accomplished scholars.

[3]Cf: United Nations Charter, Art. 2(4) (principle of non-intervention in sovereign states) and Convention on the Prevention and Punishment of the Crime of Genocide, 9th December 1948, 78 U.N.T.S. 277, Art. 1 (requiring states “to prevent and to punish” genocide and indicating, therefore, international intervention). See also, Case concerning the application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment of 26th February 2007, 2007 ICJ Rep. 1.