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THE DEFENCE OF NATURAL Also by Charles Covell

THE REDEFINIDON OF CONSERVATISM: Politics and Doctrine The Defence of Natural La~

A Study of the Ideas of Law and in the Writings of Lon L. Fuller, Michael Oakeshot, F. A. Hayek, and John Finnis

Charles Covell

M St. Martin's Press ©Charles Covell1992 Softcover reprint of the hardcover 1st edition 1992 All reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published in Great Britain 1992 by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world A catalogue record for this book is available from the British Library. ISBN 978-1-349-22361-9 ISBN 978-1-349-22359-6 (eBook) DOI 10.1007/978-1-349-22359-6

Reprinted 1994

First published in the United States of America 1992 by Scholarly and Reference Division, ST. MARTIN'S PRESS, INC., 175 Fifth Avenue, New York, N.Y. 10010 ISBN 978-0-312-08394-6

Library of Congress Cataloging-in-Publication Data Covell, Charles, 1955- The defence of : a study of the ideas of law and justice in the writings of Lon L. Fuller, Michael Oakeshot, F. A. Hayek, Ronald Dworkin, and John Finnis I Charles Covell. p. em. "First published in Great Britain, 1992, by The Macmillan Press Ltd., Houndmills, Basingstoke, Hampshire ... and London"-T.p. verso Includes bibliographical references and index. ISBN 978-0-312-08394-6 1. Natural law. 2. Law-Philosophy. 3. Justice. 4. Political science-Philosophy. I. Title: Defense of natural law. K415.C66 1992 340'.112-dc20 92-8325 CIP For my students Contents

Acknawledgements ix

Preface x

1 Introduction: Modem Legal Philosophy 1

2 Lon L Fuller and the Defence of Natural Law 30 i. The Law in Quest of Itself 31 ii. Eunomics and the Morality of Law 43 iii. The Common Law Tradition and the Political Morality of Liberalism 57

3 Michael Oakeshott and F. A. Hayek: Natural Law and the Philosophy of Liberal Conservatism 71 i. Oakeshott, Hobbes and Civil Association 72 ii. The Liberal Theory of Justice: Oakeshott and Rawls 91 iii. The Liberal Theory of Justice: Oakeshott and Nozick 114 iv. Oakeshott, Hart and 121 v. Hayek, Oakeshott and Liberalism 126

4 Ronald Dworkin: Legal Philosophy and the Liberal Theory of Justice 145 i. The Critique of Legal Positivism: Hard Cases, Principles and Adjudication 146 ii. The Liberal Theory of Justice: Individual Rights and the Idea of Law as a Community of Principle 163 iii. Dworkin and Hayek 171 iv. Dworkin and Oakeshott 175 v. Integrity: Liberalism, Legitimacy and Natural Law 180

vii viii Contents

5 John Finnis: and the Philosophy of Natural Law 196 i. Natural Law and Natural Rights 198 ii. Nuclear Deterrence and the Legitimacy of the Modem Political Order 215

6 Conclusion 226

Notes and References 242 Bibliography 255 Index 261 Acknowledgements

I wrote the early drafts of this book in England during the second half of the 1980s. For most of this period I lived in Cambridge, where I derived great benefit from the advice and intellectual stimulus provided by Dr Paul Binski, Mr Maurice Cowling, Dr Ian Harris, Dr Alexander Lindsay, Mr Alexander Perkins and Mr J. H. Prynne. I completed the final version of the book during the early months of my tenure of a Foreign Professorship at the College of International Relations of the University of Tsukuba in Japan. I am pleased to have here the opportunity to record my formal thanks to Professor Akio Hosono, the present Dean of the College, and to his predecessor Professor Hideo Sato for the many privileges and courtesies extended to me as a member of the College.

Tsukuba, Japan CHARLFS COVELL July 1991

ix Preface

In his classic monograph Natural Law (1951),1 A. P. d'Entreves traced the emergence of the great natural law tradition in legal and from its origins in the thought of Plato, and the stoic philosophers, through the period of its adaptation by Roman jurists as a philosophical foundation for Roman law, up to its culmination in the philosophical system of St . According to d'Entreves, the governing idea of the natural law tradition consisted in the view that the study of law was to be understood as forming a branch of ethics - with the consequence that he took the essential function of natural law philosophy to be that of mediating between 'the moral sphere and the sphere of law proper'.2 For d'Entreves, then, it was a distinguishing characteristic of the work of philosophers belonging to the natural law tradition that they sought to emphasize both the moral foundations of law and the formative role played by the law in the organization of the moral experience of the individual in society. Lon L. Fuller (1902-78), Michael Oakeshott (1901-90), F. A. Hayek (1899-1992), Ronald Dworkin (b. 1931) and John Finnis (b. 1940) were all committed to the view that the rule of law in modem society was to be understood in accordance with the critical standpoint provided by moral philosophy. However, with the exception of Finnis, none of the theorists looked back to the great Aristotelian-Thomist tradition in natural law philosophy. Indeed, Fuller, Oakeshott, Hayek and Dworkin adhered closely to the intellectual viewpoints that distinguished the modem tradition in moral, legal and political philosophy which d'Entreves considered to have marked a fundamental break with the classical and medieval philosophy of natural law. For d'Entreves, the modem tradition in moral, legal and political philosophy began during the sixteenth and seventeenth centuries, and was reflected in, and carried forward by, the theological ideas that emerged during the

X Preface xi

Reformation in Europe; the growing secularization of the concepts constitutive of natural law philosophy; the advent of the ideology of political absolutism, as manifested in the tendency of theorists like Bodin and Hobbes to regard the sovereign power of the state as the essential precondition of legal experience, and to regard the ideas of command and obedience as defining the essential nature of law; the emergence in the seventeenth century, and the develop• ment in the centuries following, of a political philosophy based in the idea of the natural rights of the individual; and the formulation by Hegel in the early nineteenth century of the doctrine of the ethical state, according to which the legitimacy of the modem state was understood to be grounded in the historical experience of human society, rather than in its conformity to universal principles of natural law. In the first chapter of this volume, I describe the outlines of the modem tradition in legal philosophy. In doing so, I concentrate on the nineteenth- and twentieth-century schools of legal positivism, historical , American and sociological jurisprudence. At the same time, I attempt to describe the outlines of the modem tradition in political philosophy which began with Hobbes, while looking back to the pre-modem tradition in political philosophy of Plato, Aristotle and Aquinas. My main aims in the first chapter are to locate Fuller, Oakeshott, Hayek, Dworkin and Finnis in the context of the history of legal and political philosophy, and to explain the philosophical ideas which influenced the development of their arguments about the nature of law and civil government. A related aim is to make clear that, with the exception of Finnis, these theorists are to be counted as defenders of natural law more by virtue of their opposition to the prevailing positivism of modem legal philosophy than because of any alignment on their part with the tradition of Plato, Aristotle and Aquinas. In Chapter 2, I examine the work of Fuller, a jurist generally acknowledged to be one of the leading twentieth-century defenders of the modem secular natural law tradition in legal philosophy. Although drawing on a wide range of Fuller's published writings, I structure the chapter around detailed critical analyses of his three most important works: The Law in Quest of Itself(1940); The Morality of Law (1964) and Anatomy of the Law (1968). My objectives in so organizing the chapter are three in number. First, I attempt to use Fuller's arguments for the purposive quality of law, as set out in The Law in Quest of Itself, in order to identify the principal grounds xii Preface of conflict between the metaphysical assumptions governing the view of law adopted by jurists standing in the mainstream tradition of legal positivism and those governing the view of law taken up by theorists like Fuller, Oakeshott, Hayek, Dworkin and Finnis. Second, I try to show how Fuller's arguments for an essentially procedural theory of natural law in The Morality of lAw make clear the underlying adherence of modem legal philosophers in the natural law tradition to the moral and political values central to the philosophy of modem liberalism. Third, I try to show how Fuller's arguments for the purposive quality of law, and his arguments for the procedural morality which he took to secure the justice of law, led him in Anatomy of the Law to focus on the logic governing the methods of adjudication followed by the courts in the common law tradition. In this connection, I argue that Fuller's analysis of the logic of judicial reasoning confirmed the substance of the account of the practice of the courts developed by Hayek, while also prefiguring the model of law and adjudication constructed by Dworkin. I conclude Chapter 2 by addressing the question of Fuller's allegiance to the philosophy of modem liberal• ism. In doing so, I suggest that Fuller was unequivocal in his defence of the moral and political values of liberalism, and that he explicitly resisted any attempt to explain the relationship between state and society, or the relationship between law and morality, in terms of the ideas constitutive of the viewpoint in legal philosophy that distinguished the Aristotelian-Thomist tradition in natural law. The first part of Chapter 3 provides a critical examination of Oakeshott's writings on Hobbes, as collected in the volume Hobbes on Civil Association (1975), together with a critical exposition of the highly original philosophy of politics, law and the state which Oakeshott set out in the volumes Rationalism in Politics (1962), On Human Conduct (1975) and On History (1983). I suggest that Oakeshott followed Fuller in taking the formal principles of the procedural morality of law to ground the legitimacy of the modem political order. At the same time, however, I stress that Oakeshott diverged from Fuller - as he did also from Hayek and Dworkin - in maintaining that the integrity of the modem rule of law was guaranteed by the sovereign powers inherent in the office of government of the modem European states which emerged and established their authority during the sixteenth and seventeenth centuries. Preface xiii

In the second and third parts of Chapter 3, I rank Oakeshott's On Human Conduct with 's A Theory of Justice (1971) and Robert Nozick's Anarchy, State, and Utopia (1974) as one of the most substantial contributions of recent decades to the evolution of the philosophy of modern liberalism. Specifically, I suggest that, despite their disagreements about the essential nature of justice, Oakeshott, Rawls and Nozick were united in defending a rights• based interpretation of liberalism as a philosophy of political morality, and that, in consequence of this fact, all three theorists stood equally opposed to the classical Aristotelian-Thomist tradi• tion in political philosophy. In claiming Oakeshott for liberalism, I wholeheartedly endorse the general drift of the argument of Paul Franco in his admirable The PolitiCJll Philosophy of Michael Oakeshott (1990).3 In contrast to Franco, though, I discern an underlying tension in Oakeshott's thought between the theory of civil govern• ment which he inherited from Hobbes - the crux of his contribution to the philosophy of liberalism - and the Hegelian defence of traditionalism in political activity which he mounted in Rationalism in Politics. I differ from Franco in the further respect that I try to assess Oakeshott's relation to the tradition of modern liberalism through a detailed consideration of his . In doing so, I emphasize that Oakeshott took over from Hobbes precisely the sort of voluntarist theory of law and legal obligation which Fuller, Hayek and Dworkin regarded as being steeped in the metaphysical illusions that they associated with the mainstream tradition of modern legal positivism initiated by Bentham and Austin. This is why, in the fourth part of the chapter, I attempt to bring out certain points of comparison between the view of law adopted by Oake• shott and the view of law to be found in the legal philosophy of H. L.A. Hart, one of the greatest twentieth-century representatives of the positivist tradition in modern jurisprudence. In Chapter 3, I consider the respects in which Oakeshott should, and should not, be placed with Hayek as a member of the postwar movement of libertarian anti-totalitarianism. I recognize that Oake• shott and Hayek were united in their opposition to modern European socialism. However, I question whether the defence of the morality of the free market economy held the same central importance among Oakeshott's intellectual concerns as it held among the concerns of Hayek. Above all, I contend that Oakeshott and Hayek constructed radically divergent interpretations of the fundamental reality of law and legal order. Whereas Oakeshott xiv Preface constructed a voluntarist model of law which looked back to the civil philosophy of Hobbes, Hayek constructed an essentially naturalistic model of law which looked back to the tradition in legal philosophy of Coke and Blackstone.4 The fifth part of Chapter 3 comprises an appraisal of the theory of law, civil government and political economy which Hayek set out in three of his most important works: The Road to Serfdom (1944), The Constitution of Liberty (1960) and Law, Legislation and Liberty (1973-9). I pay special attention to the internally guaranteed connections which Hayek sought to establish between the structural principles governing the organization of the modem market economy as it emerged in eighteenth-century England and the particular proced• ures of adjudication developed in England by the common law courts. In doing this, I suggest that Hayek's analysis of the practice of the English courts involved the exposition of a theory of adjudication which deserves to be ranked with the much more widely known theory of judicial reasoning expounded by Dworkin. In Chapter 4 I seek to reconstruct the legal philosophy of Ronald Dworkin. To this end, I focus on the thirty-odd articles collected together in the volumes Taking Rights Seriously (19m and A Matter of Principle (1985), the important two-part article on equality published in Philosophy and Public Affairs in 1981, and the system• atic restatement of his legal philosophy which Dworkin provided in Law's Empire (1986). I begin the chapter by exploring the main themes of Dworkin's descriptive analysis of law and adjudication. These include the role ascribed by Dworkin to legal principles in civil adjudication; the distinctions drawn in Law's Empire between conventionalism, pragmatism and law as integrity as theoretical inter• pretations of the nature of law; and the idea of law as a community of principle defended in Law's Empire. I go on to develop the argument of Chapters 2 and 3 by comparing Dworkin's legal philosophy with the legal philosophies of Hayek, Oakeshott and Fuller. In doing so, I try to bring out: the striking parallels between the models of law and adjudication constructed by Dworkin and Hayek; the contrast between Dworkin as exponent of a naturalistic view of law and Oakeshott as exponent of a voluntaristic view of law; and the relationship between Dworkin's model of law and adjudication and the purposive theory of law formulated by Fuller in The Law in Quest of Itself. I also assess Dworkin's status as a defender of the political morality of liberalism, emphasizing particularly his at• tempt to restate the core principles of Rawls's doctrine of justice Preface XV as fairness from the theoretical standpoint of legal philosophy. I conclude that Dworkin ultimately failed to establish an internally guaranteed connection between his descriptive analysis of law and adjudication and the normative principles of political morality constitutive of Rawlsian liberalism. In Chapter 5, I examine the moral and legal philosophy expoun• ded by Finnis in his Natural Law and Natural Rights (1980). Finnis is included in the present book because, in contrast to Fuller, Oakeshott, Hayek and Dworkin, he sought to defend the classic natural law viewpoint in legal philosophy to be found in the pre• modem tradition of Aristotle and Aquinas. His inclusion thus serves to underline the starkness of the contrast emphasized in earlier chapters between the Aristotelian-Thomist tradition of natural law and the tradition of modem liberalism that originated with Hobbes. Finnis is also included in this book because of the vehemence with which he repudiated liberalism as a philosophy of political morality. In the Conclusion, I submit that the work of Fuller, Oakeshott, Hayek, Dworkin and Finnis was characterized by considerable ambivalence towards liberalism as a philosophy of law and government - or, to be more exact, by a marked ambivalence towards many of the moral and political doctrines central to the mainstream tradition of liberalism in the West. For instance, Fuller and Dworkin were opposed to the philosophical idea of the social contract as a foundation for the moral authority of the state, Oakeshott and Hayek to the whole rationalist spirit of modem liberalism, Finnis to the ethics of I

1902 and must therefore be considered as part of the generation of Oakeshott and Hayek. Dworkin wrote from a temporal vantage-point quite distinct from that of Fuller, Oakeshott and Hayek. Dworkin was born in 1931, ten years after Rawls (b. 1921) and seven years before Nozick (b. 1938). Rawls's philosophical writings provided an underlying moral justification for the policy aims of Lyndon Johnson's Great Socie• ty. Nozick constructed a moral-political doctrine which provided justification for the economic programmes, if not the foreign policy positions, which were to prevail in the United States during the Reagan Revolution. As a Rawlsian liberal, Dworkin regarded the pursuit of social and economic equality as a legitimate concern of government in respects that told against the absolutism of the moral distinctions drawn by political theorists and policy-makers during the Cold War between the political order of the liberal capitalist West and the political order of the communist East. Furthermore, as an implacable opponent of American involvement in Vietnam, Dworkin implicitly rejected the orthodox Cold War assumptions of United States foreign policy in the form these took in the 1960s and early 1970s. Nonetheless, Dworkin so took for granted the validity of liberalism as a philosophy of law and government that none of the practical alternatives to the constitutionalist tradition of the West was even entertained by him as a possible basis for the just ordering of modem society. For Finnis, Western liberalism involved substantial moral error, and his analysis of the strategy of nuclear deterrence left it unclear how the conduct of foreign policy by the Western democracies during the Cold War could actually be reconciled with the convictions of the ordinary moral conscience. However, Finnis followed the classic postwar anti-totalitarian theorists in asserting a fundamental moral contrast between the liberal democratic regimes of the West and the Marxist-Leninist regimes of the old communist bloc. Moreover, if Finnis challenged the claims of the Western democracies to possess moral authority (as he did in relation to nuclear deterrence), then this does not alter the fact that, for him, the former communist regimes of Eastern Europe had systematically transgressed the universal principles of political morality which he considered to comprise the natural law. The collapse of Soviet power in Eastern Europe that began in the late 1980s has sometimes been taken to imply the possibility of a final settlement of the long standing philosophical conflicts regard• ing the future of modem society which reached their climax during Preface xix the period of the Cold War. To this extent, the concerns of the theorists examined in the present volume may seem to belong to a stage in philosophical controversy about the nature of law, govern• ment, justice and political legitimacy which has passed over into history. Against this, however, it needs to be said that it now appears increasingly doubtful whether the collapse of Soviet power, and the repudiation of the doctrines of Marxism-Lenin• ism, will result in a decisive victory for liberal constitutionalism as a philosophy of political morality. Indeed, it is more than possible that the success of this philosophy in the years ahead will depend upon an acceptance by its defenders that the question of the essential nature of liberalism is a question that still awaits a final and conclusive answer. Thus it is with a sense both of the contemporary triumph of liberalism, and of the openness of the tradition of liberalism to rival interpretations of its meaning and promise, that the philosophies of law and government of Fuller, Oakeshott, Hayek, Dworkin and Finnis are commended to the reader in the circumstances of the early 1990s.

Tsukuba, Japan CHARLES CoVELL July 1991

The months since July 1991 have witnessed many momentous events in world politics, including the dissolution of the Soviet Union. Despite its profound historical importance, the end of the Soviet Union does not affect the argument of the present volume. The reader is advised therefore that he or she will find the name 'Soviet Union' standing unaltered in the text.

Tsukuba, Japan CHARLES COVELL February 1992