As many readers have observed, a primary concern among several authors at Nomocracy in Politics is considering the character and implications of a nomocratic (or rule-of-law) view of politics and society. As polemic, this has included our elucidation of problems with telocratic politics—i.e., normative theories about the state and society in which government makes law and policy for the sake of advancing substantive moral and/or good-life visions. Most contemporary ideologues suffer from such problems whether they be (to name just a few) progressive liberals, West Coast Straussians, ideological libertarians, etc. With respect to constructive theory, we have argued for constitutional orders marked by substantively neutral rules that, in turn, allow individuals and communities to determine and pursue their own self-chosen ends and conceptions of the good life.
But such work, especially the constructive project, requires more attention and argumentation. To this end, I will (from time to time) consider the theoretical writings of various thinkers that can be identified as within the rule-of-law tradition of Western thought. Among recent philosophers who have explored this theme, Michael Oakeshott’s writing is perhaps the most explicit. His essay, “The Rule of Law,” provides a detailed but highly compact elucidation of the theoretical concepts and implications of the nomocratic vision, as well as its place within the history of Modern Europe. The work is worthy of greater public consideration, so I will embark on a series of essays to explicate central concepts and arguments in Oakeshott’s “The Rule of Law,” as well as its connections with Oakeshott’s famed commentaries on Thomas Hobbes.
This current post focuses on what Oakeshott means by rule of law. Later posts will consider Oakeshott’s understanding of the institutional implications connected to the rule of law, his views on incorporating deliberations about morals and justice when making law, and how his rule of law theory is properly viewed in conjunction with his writings on Thomas Hobbes.
Oakeshott on the Rule of Law
In “The Rule of Law,” Oakeshott refrains from presenting a complete definition of his intended topic until well into the essay’s body. Finally, in section “6,” the author provides a clear abstract summary of his cherished concept:
The expression “the rule of law,” taken precisely, stands for a mode of moral association exclusively in terms of the recognition of the authority of known, non-instrumental rules (that is, laws) which impose obligations to subscribe to adverbial conditions in the performance of the self-chosen actions of all who fall within their jurisdiction. This mode of association may be opprobriously branded as “legalistic” and other modes may be considered more interesting or more profitable, but this I think is what the rule of law must mean. (148)
To understand Oakeshott’s meaning, it is helpful to first consider the following list of characteristics. Some are explicit elements of his definition, while others are implicitly related and important for considering what he is envisioning.
(1) Rule of law association is based on its members or associates (e.g., citizens of a state ordered by the rule of law) recognizing authoritative, known, non-instrumental rules of conduct (laws) and adjusting the how and manner of their self-chosen actions when these fall within the jurisdiction of such rules.
(2) Such association also involves associates understanding how these rules impose obligations to act in accordance with “adverbial conditions” of conduct when performing their self-chosen actions (qualifying directives on conduct that do not mandate the associate’s goals or actions for goals, but only direct the how and manner of their conduct when they freely choose their actions for their various freely chosen goals)—e.g., when Agent A freely chooses to sell his goods, a rule might establish an “adverbial condition” directing Agent A to do so in accordance with certain standards for vendor conduct like refraining from fraudulent representation, etc.
(3) The rules only apply when one’s conduct is within the jurisdiction of the rules (e.g., one freely chooses to become a vendor and act within realm of vendor actions).
(4) The rules of conduct are “non-instrumental” in the sense that they are not oriented toward (nor intended for directing agents toward) certain preconceived, desired ends (otherwise the rules would have a teleological purpose in that the rules would be designed to help agents realize ends that are preconceived and approved by law-makers). In contrast, instrumental rules have such teleological purposes. Oakeshott analogizes the difference between non-instrumental rules and instrumental rules through considering how the different modes appear within the context of game-playing. In games, non-instrumental rules constitute the function of the game and are neutral in regards strategies and maxims for winning the game (e.g., rules stipulating how a base-runner must touch each base before advancing to the next), whereas instrumental rules are those relevant to strategy and the end of winning a game (e.g., maxims directing one how to hold his or her bat so as to best hit a ball after it has been pitched) (136-137).
(5) Rules of law are not commands. According to Oakeshott, legal rules are addressed to unknown audiences who may fall within its jurisdictions; can be “known in advance” of the situations to which they relate; and merely require “adequate subscription to the conditions it prescribes,” whereas a command is an “utterance addressed to assignable agent,” “a response to a particular situation and used up on the occasion,” “an injunction to perform a substantive action and it calls for obedience,” and “its validity lies… in its… authenticity,” which is “determined only by reference to a rule”(140-141).
(6) Oakeshott is also clear that a rule of law association is not a political community or legal order with common substantive goals:
Nor may relationship in respect to the rule of law be itself association to promote or procure a common substantive satisfaction. For the terms of such purposive association would not be obligations to subscribe to adverbial conditions while performing diverse and self-chosen actions, but undertakings to perform such actions as might be judged instrumental to the pursuit and achievement of a chosen common end; and this is impossible. (149)
The envisioned category of rule-of-law association would not, for example, include associations aimed at common goals such as realizing virtue within a commonwealth or realizing the material prosperity of members via exploiting a commonwealth’s resources, etc.
(7) Rule of law association is “moral association” in the sense that the rules impose obligations and duties on agents to satisfy the rules’ directives about conduct. However, the obligations and duties do not arise from the inherent moral rightness and/or reasonableness of the rules:
[R]elationship in terms of the rule of law cannot be association in respect of the common recognition of the desirability of the conditions prescribed in all or any of the laws, or of some quality of ‘rightness’ or ‘justice’ or ‘reasonableness’ they [the laws] may be deemed to possess. . .(149)
Rather, the normative bindingness of each rule arises from the rule being authoritative and authentic in the sense of being made by an authoritative office (i.e., a sovereign legislative office):
The sole terms of this relationship are the recognition of the authority or authenticity of the laws… Thus, the first condition of this mode of association is for the associates to know what the laws are and to have a procedure, as little speculative as may be, for ascertaining their authenticity and that of the obligations they prescribe. And this is satisfied only where laws have been deliberately enacted or appropriated and may be deliberately altered or repealed by persons in respect of their occupation of an exclusively legislative office and following a recognized procedure; where the sole recognition of the authenticity of a law is that expressed in an acknowledgement that it has been properly enacted; where this acknowledgement does not entail approval of what the law prescribes; and where there is no other independent office authorized to declare a law inauthentic on account of what it prescribes. In short, the first condition of the rule of law is a “sovereign” legislative office. (149-150)
As will be considered more elaborately in future posts, Oakeshott’s work on Hobbes, in turn, suggests that the authority of such a legislative office arises from agents granting this through their consent—e.g., what Hobbes portrays via the mythical scenario of each agent laying aside his or her natural right to enter a covenant and establish such a sovereign legislative office.
The heart of Oakeshott’s nomocratic vision here is fairly clear: agents (e.g., citizens within a state or political community) have a rule-of-law relationship when they recognize and, hence, are under the same authoritative, authentic laws if and when such laws spring from “a ‘sovereign’ legislative office” (emphasis added). When laws are “deliberately enacted and appropriated” (and likewise so “altered or repealed) by such a sovereign, legislative office, these laws can be recognized to be authentic and authoritative and, hence, as imposing relevant obligations on agents to observe “adverbial conditions in the performance of the [agents’] self-chosen actions.” Moreover, in imposing such obligations to observe such “adverbial conditions,” these laws are not commands; instead, they are rules (i.e., they are addressed to unknown audiences who may fall within its jurisdictions; they can be “known in advance” of the situations to which they relate; and they merely require “adequate subscription to the conditions…[they] prescribe…”). Such laws (as well as the rule of law association that they direct) do not “promote or procure a common substantive satisfaction” (e.g., they are not designed or intended to promote a “common good”). Instead, the legal rules of a rule of law association function as non-instrumental rules akin to rules in a game; they do not direct one instrumentally like maxims (i.e., informing one how to best achieve an intended purpose) but, rather, specify the manner of conduct that must be observed during the process of pursuing one’s self-chosen actions for one’s self-chosen goals.
Please return to Nomocracy in Politics in the near future for my second essay on Oakeshott’s nomocratic theory. Next we will examine his reflections on what is required in terms of legislative and judicial offices within a rule of law association.
Peter Daniel Haworth, Ph.D., is Editor-in-Chief at Nomocracy in Politics and the Director of the Ciceronian Society.