Liberty, Prudence, Imperfection, and Law

“‘The Rule of Law and the Sovereign Legislative Office,’ Part 2 of Michael Oakeshott and the Rule of Law,” By Peter Haworth

 

In Part 1 of this series, I presented and analyzed Oakeshott’s theoretical definition of the rule of law: “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” (148). Moreover, I (in Part 1) cited Oakeshott’s discussion of the rule of law requiring a sovereign legislative office:

[T]he 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And this is satisfied only where laws have been deliberately enacted or appropriated and may be deliberately altered or repealed by persons in respect of their occupation of an exclusively legislative office and following a recognized procedure; where the sole recognition of the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)

It is appropriate to now elaborate upon various political-institutional implications in Oakeshott’s understanding of a sovereign legislative office. These include Oakeshott’s views on important themes such as natural law versus positive law, moral realism, democracy/republicanism, and sovereignty. His discussion of these and other relevant items are considered below.

 

The Sovereign Legislative Office:

It is important to observe how Oakeshott believes that this sovereign office is truly sovereign—supremely authoritative—with respect to developing rules as laws: “there is no other independent office authorized to declare a law inauthentic on account of what it prescribes” (150). In other words, there is no court, local-level government, or other form of governmental institution that can authoritatively veto or undo the laws that the sovereign, legislative office enacts.

Furthermore, the sovereign legislative office can be constitutionally provided for in a number of different ways; the rule of law doesn’t prescribe a particular type of constitutional arrangement. According to Oakeshott, “[t]he rule of law does not itself specify any particular constitution or procedure in respect of this legislative office.” Or in greater detail, the rule of law “does not itself stipulate who shall occupy it, the rules in terms of which it may be properly occupied, or the procedure for enacting law.” Rather, rule of law “requires only that these should themselves be matters of law” (150). Thus, the sovereign legislative office could be manifested in a monarchy, an aristocracy, a democracy, or even a republican hybrid that contains facets of all three.

Such a sovereign must not pursue its own interests, nor does the sovereign represent the interests of a particular constituency. Rather, the “persona” who occupies the sovereign legislative office must be “without interests of its own and not representative of the interests of others” (150). The legislative office is akin to the maker of game-rules who creates such rules of play for the integrity and benefit of the overall game, and not to benefit his own play or that of any possible constituents.

This, as Oakeshott acknowledges, contradicts facets of the representative-republican and democratic traditions to the extent that they stipulate legitimacy of legislative power as grounded in the legislative office being representative of the interests or views of its constituent-citizens.[1] How might someone who prefers the rule of law tradition respond to these conflicting traditions (at least on this issue), especially given that they are now predominate in Western political culture? A possible answer might be as follows: with respect to theory, republican and/or democratic notions of a legislature representing the interests of others does, indeed, seem pervasive. However, the practical reality might be quite different. In the United States, for example, large minority interests (with means and sophistication to influence the bureaucratic and legislative process) have de facto dominance over most policy-making, and this reality does not accord with the republican/democratic criterion. Thus, in allowing the legislative office to be viewed as a mere representative of citizens, an opportunity has been created for powerful minority groups to manipulate the democratic/republican processes and, hence, largely transform the legislative office into representatives of their minority interests above all else. De facto oligarchy has been created out of theoretical republicanism or democracy. Although such empirical observations alone do not defeat the normative ideal of a democratic/representative government representing the interests and views of its constituents, they raise the question of whether such an ideal is ultimately prudent. Alternative theories that contradict this democratic/representative ideal are, in turn, saved from prima facie rejection merely because the democratic/representative ideal is more pervasive. Given these considerations, Oakeshott’s identification of the rule-of-law ideal of a legislative office that stands aloof from all interests and merely functions as a objective rule-maker still, then, remains a possibly attractive theoretical alternative, especially if it provides a solution to government regressing into a mere tool for the interests of the strong over those of the weak.

Returning to Oakeshott’s discussion of the legislative office, the authority of the holders (as partially suggested in Part 1) of the sovereign legislative office does not derive from the “natural quality (virtue, prudence, wisdom, charisma, and so on) possessed by or attributed” to the office’s “contingent occupants” or likewise “inferred from any such quality…” Instead, the authority of the office holders derives from the office itself (151).

 

Law of the Sovereign Legislative Office:

With respect to the content and type of laws, Oakeshott’s treatment is also nuanced. He argues, for example, that common law (or judge-made law) can still be legitimate law within a rule of law system, provided that it meets certain conditions: “It is not necessary that” the “law should be codified, nor is it necessary for this office to be the sole source of law.” Thus, it is possible for rules of common law to be deemed part of the rule of law; however, such common law’s “authority cannot lie in antiquity, in its current availability, its traditional acceptance or in the recognition of the desirability of what it prescribes.” (150-151) Instead, for rules of common law (or any other rules of mos majorum) to be in accordance with the standards of the rule of law, they must be under the authority of the legislative office in that this office can appropriate, reject, and/or amend such non-legislative derived rules.

Secondly, the jurisdiction of law, which as discussed in Part 1 is the extent and limits of what a law obligates (beyond which associates’ self-chosen actions and goals are not directed by law), is also under the law. In other words, “jurisdiction of the law is itself a matter of law.” There are legal rules that determine how the legislators will establish the jurisdiction of a given law. These boundaries are ultimately under the authority of the same sovereign legislative office, but they can obviously have some limiting influence on this legislative office to the extent that it may have a will for law A, but not a will for changing the legislative boundaries (laws B-D) that govern the legally permissible extent of law A.

According to Oakeshott, proper law requires that “associates be aware of the obligations the law imposes.” How extensive is this standard? Does it imply the virtually impossible condition that every citizen actually knows and understands his or her legal obligations? Oakeshott answers this in the negative and implies that sufficient public proclamation of the law is sufficient for fulfilling this condition: the “necessary condition that the associates be aware of the obligations the law imposes is subsumed under the principle that ignorance of the law is no defence against the imputation of having failed to observe its prescriptions” (151-152). In other words, when the law can be reasonably assumed as being clearly promulgated and knowable, an associate will still be obligated to adhere to its impositions regardless of whether he or she actually knows how law obligates him or her.

 

Jus versus Injus and the Law:

One very interesting facet of Oakeshott’s essay is his discussion of the degree that moral justice should be embodied within and advanced by the law. Oakeshott’s treatment of this has multiple facets. First, he discusses the jus (i.e., moral justice) inherent in the rule of law itself—e.g., “rules not secret or retrospective, no obligations save those imposed by law, all associates equally and without exception subject to the obligations imposed by law, no outlawry, and so on” (152-153). With respect to the relation of law to morality, Oakeshott believes that only such inherent-to-the-rule-of-law instances of jus might possibly be deemed necessary conditions for a law to be valid; “only in respect to these considerations and their like” can one “perhaps” say “that lex injusta non est lex” (152-153). A more extensive natural law standard, which extends well beyond inherent-to-the-rule-of-law instances of justice, is not legitimate.

Although many contemporary advocates of natural law theory will not be satisfied with such a limited standard, one should note the significance of this concession for Oakeshott’s essay. In claiming that the rule of law implies a certain (albeit minimal) moral criteria for legitimate law, Oakeshott separates the rule of law tradition from strict positivism, and he takes a position somewhat similar to Lon Fuller (in The Morality of Law) who argues for a limited natural law governing the general character and procedure for making law. Bruce Frohnen has previously articulated Fuller’s vision in our pages:

Lon Fuller argued that there is an “internal morality” to law.  That is, for a law to be a law—to do its job of getting people to follow its dictates—it must have certain attributes that accord with our natural understanding of morality.  A society ruled according to law must, Fuller noted, meet certain criteria, or it simply is not ruled according to law.  These criteria can be summed up in eight canons:  there must be general rules; the rules must be promulgated; the rules must typically be prospective, rather than retroactive; the rules must be clear; the rules must not require contradictory actions; the rules must not require actions that are impossible to perform; the rules must remain relatively constant over time; and there must be a congruence between the rules as declared and the rules as administered. 

Taken together, Fuller’s canons constitute an internal structure to law, a kind of intrinsic virtue, necessary for them to provide actual rules that actual people can follow and use in planning their lives.  This is not to say that any law failing to embody all these principles is “not law.” But the less well it conforms to these principles, the less fully law-like it will be. 

In suggesting that some such jus-inherent-to-law vision is part of the rule of law tradition, Oakeshott, in effect, accepts (possibly without realizing) the identification of such a very limited conception of the natural law into rule of law tradition.

Aside from this, however, Oakeshott believes considerations of moral justice can guide the sovereign legislative office in making laws, but the laws that such an office makes will be authoritative regardless of whether they conform to moral justice (i.e., the possible moral justice that exists in addition to the very limited instances of moral justice that are inherent to rule of law itself): Considerations of “jus or injus” are only relevant for “deliberation that goes into the making of law” (152). This includes the evaluation of whether it is (or was) proper (with regard to moral justice) to enact a given law but, then, to not also questioning whether the law (once it is enacted by the sovereign legislative office) is authentic and authoritative even if and when the law is deemed not to be in conformity with moral justice (in addition to that which is inherent in law itself). Given this stipulation, Oakeshott allows for the possibility that an enacted law could be both (1) viewed has having immoral implications based on full-bodied theories of natural law, divine, law, etc., and, yet, (2) still be authentic and authoritative (due to its origins, promulgation, and form) and, hence, still provides associates with an obligation that normatively direct their conduct. Thus, (and as even seen in an above quotation) Oakeshott believes, no doubt to the chagrin of many contemporary Thomists, that many putatively “unjust” laws (those having unjust implications according to various natural law or other moral-realist theories) are still morally authentic and authoritative laws.

With this established, Oakeshott proceeds to discuss the proper versus improper ways for legislators to consider justice when making laws. His main point seems to be that this task must entail examining “moral, non-instrumental considerations,” and not be a free-for-all importation of the legislators “list of favorite things” nor be the importation of conditions of conduct that are instrumental for advancing ends and actions that should be left to the domain of self-choosing associates. This applies to the following specific examples he mentions in the essay. Since Oakeshott apparently believes that positive laws frequently go beyond the rule of law’s limited range of appropriate purposes, his examples are negative. He argues that proper law (according to the terms of law in rule-of-law association) “is not concerned with the merits of different interests, with satisfying substantive wants, with promotion of prosperity, the elimination of waste, the equal or differential distribution of reputed benefits or opportunities, with arbitrating competing claims to advantage and satisfactions, or with the promotion of a condition of things recognized as the common good.” (153) Here readers should note the significance of the last mentioned stipulation: Oakeshott (as already suggested in Part 1) rejects the notion that law should promote the realization of a “common good” (e.g., common goals such as realizing virtue among members within a commonwealth or realizing the general material prosperity for all members via exploiting a commonwealth’s resources, etc.). Whether or not Oakeshott believes that such a common good can possibly exist (and be identified) within a rule of law association, he clearly does not think its advancement (other than the provision of a legal order of rules inherent to such an association) is within the purview of law.

In congruence with such thinking, Oakeshott argues that the process of the legislative office advancing justice through law is different from and should not be mistaken for efficiently, expeditiously, and/or fairly providing members with “substantive benefits” (e.g., fostering the production, distributing, redistributing, etc., of material goods):

The jus of a law cannot be identified with successful provision of these [i.e., the above mentioned concerns such as the “merits of different interests,” “satisfying substantive wants,” advancing a “common good,” etc.] or any other substantive benefits, measured by the efficiency or expedition with which they are provided or the ‘fairness’ with which they are distributed. (153)

This shows us how far Oakeshott’s vision is from egalitarian-oriented liberalism, Chesterton-Belloc distributism, and even many oligarchic, mercantilist visions (e.g., some neoconservatives and various establishment liberals). Philosophical and/or ideological tenets in many of these different theories (e.g., John Rawls’s egalitarian-liberal principles of justice) maintain that efficiently, expeditiously, and/or fairly facilitating associates members’ attainment of “substantive benefits” (e.g., material goods) is part of the moral justice that law should advance.

In congruence with his thought above, Oakeshott further limits considerations of the justice relevant for the making of law. He argues that law is not “concerned with the provisions or the assurance of the enjoyment of benefits alleged to be desired by all. If there are such universally acknowledged ‘natural’ goods…, law cannot be concerned with promoting them unconditionally.” Instead, law can only “prescribe obligatory conditions to be observed in seeking them.” (153-154) Also, Oakeshott stipulates that “the conditions a law imposes upon conduct cannot concern the supreme moral consideration which relates to the sentiments or motives in which actions are performed”(e.g., “conditions of ‘human excellence’ or of human ‘self-realization.’”) (154)

After providing such a showing of what considerations of advancing justice in law are not, Oakeshott observes (perhaps with a wry smile) that “theorists of the rule of law” have not been of one mind about how to identify a proper method for discovering justice relevant for law (154-155). The “main thrust of the enterprise has been to seek them” in terms of cosmic concepts that resemble law, e.g., “an inherently just ‘higher’ or fundamental’ law” or “a Law of Nature or of God, either discerned in rational moral deliberation or (in the Ockhamist version) recognized as the prescriptions of the arbitrary ‘will’ of a divine legislator” (154). Oakeshott continues by elucidating a plethora of other examples of diverse means of applying jus to law during the legislative process, and these serve to underscore a central point he ultimately makes explicit: it should be acknowledged that “considerations in terms of the jus of lex… are neither arbitrary, nor unchanging, nor uncontentious, and they are the product of a moral experience which is never without tensions and internal discrepancies” (155-156, bold font added). In other words, Oakeshott believes that the legislative office’s “considerations” about advancing moral justice in the law will be complex and frequently difficult because such a task is not only important, but is also about a subject—i.e., the realm of human morality— that varies, is controversial, and results from human experience marked by contradictions and antimonies.

Given this reality, Oakeshott believes that productive considerations of jus in relation to the making of law should primarily focus on what is required for rule-of-law association to make “jus” law: be “focused narrowly upon the kind of conditional obligations a law may impose”[2], i.e., focused on the obligations that derive from the non-instrumental rules that provide adverbial conditions of conduct directing associates’ self-chosen conduct and goals (merely in the sense of providing a minimal order so that such self-choosing can be pursued without the associates’ actions disorderly interfering with one another). As suggested above, Oakeshott believes that certain elements of justice are inherent in the law, and here he might be suggesting that lawmakers’ considerations of realizing justice in the law should focus largely on instantiating these elements, e.g., “rules not secret or retrospective, no obligations save those imposed by law, all associates equally and without exception subject to the obligations imposed by law, no outlawry, and so on.” What can be concluded is that, according to the logic of Oakeshott’s analysis, realizing the facets of justice inherent in law (and not instantiating one of the competing conceptions of natural law, divine law, or other putative mode of moral realism) will likely be the most productive order of business for the legislative office when it seeks to instill moral justice in the law; this task is often much more appropriate and productive than wading into the controversial muck of chasing “certainty and universality” via competing moral theories about higher/natural law and “unconditional ‘values,’ ‘rights’ or ‘liberties’”(155, bold font added).

Finally, to the extent that the process of reflecting on justice during the making of law must (and inevitably will) involve more than striving for the justice inherent in law, Oakeshott suggests that this can be, in its best form, the consideration of “a prevailing educated moral sensibility capable of distinguishing between the conditions of ‘virtue,’ the conditions of moral association (‘good conduct’), and those which are of such a kind that they should be imposed by law (‘justice’)“(174). Here Oakeshott’s doubt about the efficacy of identifying uncontroversial cosmic-based morality, nature-based morality, or other modes of moral realism seems apparent. Moral standards for guiding the making of law will be, in their best form, a cultural artifact, “a prevailing moral sensibility.” Moreover, this sensibility, in its best form, will recognize that the moral conditions that can be imposed by law are different than “conditions of ‘virtue,’ [and] the conditions of moral association (‘good conduct’).” (174)

 

Conclusion:

Of course more can be said about Oakeshott’s treatment of the sovereign legislative office as part of Oakeshott’s rule of law theory, especially in regards to how this should be evaluated. Future installments of this series might partially engage in such criticism. Other topics to be considered in future installments are Oakeshott’s treatment of the judicial office and the topic of how Oakeshott’s analysis of Hobbes is congruent with Oakeshott’s view of the rule of law.

 

Peter Haworth is Editor-in-Chief of Nomocracy in Politics and Director of the Ciceronian Society.

 

Endnotes:

[1] Oakeshott’s recognition of this can be seen in his discussion of how a democratic/republican political system facilitated by parties is incompatible with the rule of law: “Political ‘parties’ have rarely escaped the character of organizations of interest, not necessarily the interests of their electoral supporters but interests of some sort which they regard themselves as committed to promote if they are returned to office. And, of course, this runs counter to the rule of law which is not concerned either to promote or to obstruct the pursuit of interests… Moreover, this discrepancy between ‘party government’ and the rule of law is not modified where a party claims to be the custodian of the interests of the majority of associates or even of the common interests of all; the more substantial such a claim is the more remote is an association thus governed from the rule of law.” (167-168)

[2] Consider the following passages from Oakeshott’s essay: “the jus of a law is not a set of abstract criteria but an appropriately argumentative form of discourse… a form of moral discourse, not concerned generally with right and wrong human conduct, but focused narrowly upon the kind of conditional obligations a law may impose…” (156) Such a “discourse” about “the jus of law” ideally “should be undistracted by prudential and consequential considerations, and insulated from the spurious claims of conscientious objection, of minorities for exceptional treatments, and, so are as may be, form current moral idiocies.” (156)

 

Works Cited:

1.Michael Oakeshott, “The Rule of Law,” in On History, edited by Timothy Fuller (Indianapolis, IN: Liberty Fund, 1999), 129-178.

 

2 Responses to ““‘The Rule of Law and the Sovereign Legislative Office,’ Part 2 of Michael Oakeshott and the Rule of Law,” By Peter Haworth”

  1. gabe

    Peter:

    Wow! and thank you for this essay. Look forward to more on this – Heck, I guess I will have to add some Oakeshott to the reading list. Your piece provides a very solid sense of what he is about and certainly will inform my thinking on rule of law issues.

    Regrettably, one looks at what we have devolved to and wonders was it ever possible that we would escape this fate.

    Reply

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