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diversity can arise only from the chaos of irrational desires or from faulty
reasoning. But a small step is needed from that conclusion to the nihilist™s
view that individuality consists in rebelling against reason, rejecting all
objective standards and distinctions between truth and falsehood or good
and bad, along with all rules of law. Thus skepticism turns into nihilism
and makes it impossible to accept the meaningfulness of law.
Oakeshott succeeded in making a complete break with the ancient
pantheism by redefining reason as a purely human, but creative power.
To avoid any suggestion of a cosmic principle, he speaks of “rationality”
or “intelligence” rather than reason. Oakeshott™s “rationality” is neither a
capacity to discover indisputable truths or universal and eternal patterns,
as in the ancient picture, nor is rationality a slave of the passions or a
calculating power, as in the modern picture. As understood by Oakeshott,
rationality is a faculty for inventing interpretations of and responses to
experience. It is a power to choose how and what to see, think, and do.
Human beings are not then “rational animals,” torn between two warring
forces, such as reason and passion, mind and body, or spirit and matter.
In Oakeshott™s account, human beings are intelligent agents, who are
permeated by rationality and are therefore all of one piece. From this
standpoint, emotions are no less rational than mathematical calculations
because when human beings feel love or fear, they are, as in everything
else that they do, making intelligent interpretations of and responses to
their experience.
Once human reason is understood in this fashion, the diversity in the
human world ceases to be the sinister product of unruly irrational forces
or of faulty reasoning. Individuality becomes the inescapable consequence
of human rationality. It is a blessing conferred by the fertility of rational
activity, and the human world need not be reduced to uniformity in order
to make it rational. This understanding of human beings, Oakeshott says,
has hovered over European consciousness since ancient times. It is at one
with the Christian idea of a person as an immortal soul, which Aquinas
understandably found difficult to reconcile with Aristotelian metaphysics.
But no one before Oakeshott had explicitly formulated this conception of
human rationality.
The second ingredient of Oakeshott™s solution to the skeptic™s dilemma is
the idea of a “practice.” Both the diversity and the orderliness of the human
world he attributes to a multitude of practices. Tennis, poetry, science,
Islam, French cuisine, a market economy, ballet are all “practices.” A
310 New foundations

practice need not be practical; many practices are theoretical. A practice
consists of well-defined conditions that shape how people engage in a
particular activity. These conditions may be considerations, manners,
customs, standards, maxims, principles, or rules. And a practice may arise
in any number of different ways. It may be invented ab initio or emerge
unbidden out of the performances of individuals that, over time, have
acquired a definite pattern. Its origins do not affect the nature of a
practice.
What makes the idea of a practice so important is that it unifies those
engaged in it without dictating what anyone does. This is because the
requirements of a practice, being conditions rather than commands or
orders, are not obeyed or disobeyed, but subscribed to. When we speak
English, we subscribe to a certain grammar, vocabulary, idioms, and
usages. But none of these determines what we choose to say. They only
enable us to communicate with other speakers of English who may use it
to say very different things. As Oakeshott puts it, a practice is not “a fixed
stock of possible utterances, but a fund of considerations drawn upon and
used in inventing utterances; a fund which may be used only in virtue of
having been learned and being understood.”1 And those who are associ-
ated in a practice use their rational power in a fashion unlike that which
has traditionally been described as reasoning, that is to say, deducing a
particular conclusion from a universal premise. We exercise our rational-
ity differently when we subscribe to a practice. Hence the idea of a
practice rests on Oakeshott™s redefinition of reason.
People who speak the same language may also have purposes or inter-
ests in common. But insofar as they are related by their subscription to the
practice of English or French or any other, their relationship is non-
instrumental or adverbial because they are related by a common manner
of doing things, not by the pursuit of the same objectives. All speakers of
English are united by their reliance on the same grammar and vocabulary,
not by saying, doing, or wanting the same things.
This idea of subscription to the non-instrumental conditions of a
practice enables Oakeshott to avoid nihilism without renouncing skepti-
cism. For it explains how people can engage in orderly activities, where
they recognize and accept common standards, without being reduced to
uniformity or having recourse to an infallible or non-human source of
truth. The miracle is achieved by separating the conditions or procedures
of a practice from the activities in which that practice is expressed. These
common conditions or procedures are objectivities given by the practice


1
Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), 120.
Michael Oakeshott 311
to those who share in it. Although entirely produced by human choices,
the conditions of a practice are nevertheless as objective as if they had
been derived from a non-human source because they are wholly independ-
ent of the immediate purposes or interests of those who draw upon them,
and have not been designed to compel anyone to do or say anything in
particular. Like all human constructions, the conditions of a practice are
constantly changing. But that does not impair their objectivity because, as
the changes are non-instrumental and occur bit by bit, the stability of the
practice remains unimpaired. Though the English language has been
constantly changing, we can still read Shakespeare and, with a little effort,
Chaucer.
In the essay on “Rationalism in Politics,” Oakeshott attacked the dis-
position to believe that every practice could and should be formulated as a
set of rules, and he also contrasted “rationalism” to respect for tradition.
Traditions are practices that have not been explicitly formulated and
are maintained by being handed down from one practitioner to another;
in other words, traditions are learned by apprenticeship. Oakeshott™s
concern takes a different turn in his discussion of the rule of law. There
he explains a practice that is necessarily formulated in rules. But the rule
of law is one variety of the third ingredient of Oakeshott™s solution to
the skeptic™s dilemma “ the idea of a moral practice “ which need not
necessarily be formulated in rules.
For the most part, Oakeshott tells us, human beings become associated
voluntarily in order to pursue common ends or interests “ to get, make, or
do something that they all want. Such associations, designed to achieve an
agreed upon objective, Oakeshott calls enterprise associations. Each
draws upon one or more practices. In order to run a shoe factory, for
instance, we might draw on the practices of English, Italian, engineering,
accounting, marketing, and shoe-making. In subscribing to those prac-
tices, we are subscribing to non-instrumental conditions. But our sub-
scription to those practices is instrumental because it is a means for
achieving a purpose “ producing shoes “ which is extrinsic to the practices
upon which we draw. No such use can be made of the quite different kind
of practice, which is called a moral practice. Oakeshott speaks of it also
as moral association and as morality. Thus, besides redefining reason
and introducing the idea of a practice, Oakeshott has produced a new
formulation of the idea of morality.
A moral practice differs from all others because in addition to prescrib-
ing standards or criteria for right and wrong in conduct, it imposes
obligations. But what is most peculiar about a moral practice is that it
involves nothing other than subscription to those obligations. A moral
practice has no particular activity, such as speaking English, that belongs
312 New foundations

to it; neither can it be used as a means to achieving some extrinsic
purpose. When we engage in a moral practice, we do nothing other than
subscribe to its conditions in whatever activities we undertake. Subscrib-
ing to a moral practice means asking ourselves whether this or that
constitutes good conduct. This subscription shapes or qualifies whatever
other practices we may engage in.
This conception of morality is a far cry from the conception of morality
most familiar nowadays, i.e., a list of licences and prohibitions as a ticket
to health, prosperity, happiness, or heaven. Nevertheless, Oakeshott™s
understanding of morality, as of rationality, is not new. He formulated
what was long the prevailing conception of morality in England, which
was not dominant anywhere else. It explains the peculiarity of that
quintessentially English character, the gentleman, who is defined not by
the performance of any particular actions or by the observance of a set of
rules, but by the considerations and motives that govern his conduct. In
other words, it is a view that regards behaving morally as “a kind of
literacy.” Oakeshott likens it to speaking a language, and like a language,
a morality can be subscribed to with more or less delicacy, but cannot tell
us what actions to perform: “a morality is not a list of licences and
prohibitions but an everyday practice; that is, a vernacular language of
intercourse.”2 A morality is changeable in the same way as language is:
“Like any other language in its use, it is never fixed and finished. But
although it may be criticized and modified in detail it can never be rejected
in toto and replaced by another.” Like any other language, too, a moral
language may be used with more or less delicacy, subtlety, refinement “
¨
“It may be spoken with various degrees of sprachgefuhl.” But however it is
used, a morality “can never tell us what to say or to do, only how we
should say or do what we wish to say or do. Thus moral conduct, conduct
in respect of its recognition of the considerations of a morality, is a kind
of literacy. And just as considerations of literacy do not themselves
compose utterances, and just as a practice can never itself be performed,
so we may act morally, but no actual performance can be specified in
exclusively moral terms.”3 Like all other practices, a morality provides us
with objective standards, in particular, with grounds for distinguishing
right from wrong conduct (as opposed to expediential or prudential
conduct). And all human conduct is qualified by some moral practice,
that is to say, by some conception of what is in itself right and wrong. As
these standards have been made by human beings, they are never wholly

2
Michael Oakeshott, “The Rule of Law,” in On History and Other Essays (Oxford: Basil
Blackwell, 1983), 133.
3
“Rule of Law,” 133.
Michael Oakeshott 313
fixed. Nevertheless, they are stable and objective; nihilism is nowhere
in sight.
The rule of law is a moral practice. But it is distinguished by the fact
that it consists of a set of rules. Oakeshott calls those who subscribe to
these rules cives or members of a civil association. Unlike other forms of
association, civil association consists in nothing other than subscription
to the rules of that association. It is analogous to a game, because just as a
game is constituted by its rules, so civil association is wholly constituted
by the rule of law: “Civil association is a moral condition; it is not
concerned with the satisfaction of wants and with substantive outcomes
but with the terms upon which the satisfaction of wants may be sought.”4
Civil association is to be distinguished from a mode of association,
which Oakeshott calls “transactional,” “in which agents are joined in
seeking to procure the satisfaction of a chosen common want or to
promote a common interest.” Such associates may compose themselves
into “a fellowship, a guild, a society, a party, a league, an alliance or a
community.” They have “a common purpose to the pursuit of which each
associate undertakes to devote . . . his time, energy, means, skill and so
on. . . The engagement occupies time, it is a call upon resources, it looks to
a future, it is inherently terminable and may terminate with the achieve-
ment of its purpose or the dissolution of the association. . . The associates
are joined in transactions among themselves in which their various skills
are directed to the service of the common cause.”5 A state takes the form
of this kind of association when its members regard themselves as “joined
in the pursuit of a common substantive purpose,” such as “the exploit-
ation of the natural resources of its territory (and of resources elsewhere
which might be acquired by settlement, force or stealth) for the well-being
of the associates”; and when its government is seen “as the ˜enlightened™
custodian and director of this enterprise; and its ˜laws™ as the authoriza-
tion of practices and as instruments for determining priorities and . . . for
distributing the product of the enterprise.”6 No such common purpose
unites the members of a civil association. They may be “in all other
respects total strangers to one another. Or . . . temporarily or durably
joined with some others in some other mode of relationship . . . in the
exchange of services, in giving and receiving, in sharing and expressing
religious beliefs, or in promoting a common interest. Indeed, there is no
end to the number and variety of the minorities of interest into which they
may circumstantially compose themselves or the collocations (sex, family,
race, profession, hobby and so on) in terms of which they may from time


4 5 6
Human Conduct, 174. “Rule of Law,” 122“23. Ibid., 135“36.
314 New foundations

to time recognize themselves.”7 The freedom, like the order and peace
enjoyed by the members of a civil association, is not a consequence
pursued and achieved. It is inherent in the character of civil association
because the freedom of cives “is not tied to a choice to be and to remain
associated in terms of a common purpose: it is neither more nor less than
the absence of such a purpose or choice.”8
In explicating the “law” to which the members of a civil association
subscribe, Oakeshott emphasizes the importance of understanding pre-
cisely the nature of the rule of law. He points out that although other
kinds of associations have regulations that are called “rules,” they are not
rules in the same sense because they are concerned with the expediency of
conduct: A railroad or a factory is run by rules, but these are designed to
make the trains run on time or to produce goods as efficiently as possible.
Such rules are designed to achieve certain consequences. Rules of law are
not concerned with the consequences or expediency of conduct, but with
the propriety of conduct. They tell us not what it is useful to do, but what
is right. And being “right” is an end in itself, not a means to anything else.
Secondly, a rule has to be distinguished from a recommendation or a
command, which is an utterance addressed to a particular person, advis-
ing that person how to respond to the situation in which he or she finds
himself or herself. A recommendation is designed to produce certain
results here and now. A rule, however, comes into existence in advance
of, and in ignorance of, the circumstances in which it may be invoked or
the persons who may be affected by it. Therefore, a rule has to be
distinguished both from a managerial decision designed to promote a
particular enterprise and from a “policy” such as the Athenian assembly
decided in response to Pericles™ speech condemning concessions to the
Peloponnesians. And whereas a command, decision, or policy is extin-
guished by being obeyed, a rule is not used up by being observed. Like the
conditions of any practice, a rule of law is adverbial and therefore non-
instrumental. It tells you not what to do, but what conditions or proced-
ures you must observe if you wish to make a contract that can be
defended in a court of law. Or it may tell you that if you engage in the
activity of boxing not as a sport, but in order to injure your opponent,
you will be doing something that is prohibited. Hence the rule of law “is
not concerned either to promote or to obstruct the pursuit of interests.”
Indeed it is of the essence of law, Oakeshott repeatedly reminds us, not to
be “concerned with the merits of different interests, with satisfying sub-
stantive wants, with the promotion of prosperity, the elimination of


7 8
Ibid., 136“37. Human Conduct, 158.
Michael Oakeshott 315
waste, the equal or differential distribution of reputed benefits or
opportunities, with arbitrating competing claims to advantages or satis-
factions, or with the promotion of a condition of things recognized as
the common good.” The consideration that we take into account when
deliberating about the “propriety” or rightness of law must be “moral,
non-instrumental considerations.”9
The chief impediment to moral association in terms of rules, according
to Oakeshott, is the difficulty of determining whether a rule is authen-
tic and distinguishing this from its rightness. It is therefore tempting,
Oakeshott warns us, to abandon authenticity in favor of rightness as the
ground of moral or legal obligation. This can happen where a rule is
regarded as the voluntary utterance of God “whose will was itself also a
guarantee of the ˜rightness™ of whatever is prescribed.”10 Or authenticity
can be made to rest on correspondence with natural law or conscience,
each of which is also a disguised guarantee of its “rightness.” But no such
solution is acceptable to a skeptic who denies that what God wills or what
the natural law requires here and now can be indisputably known. Even if
God were to speak to someone, that person™s account of what was
communicated to him cannot be indisputably accepted by others. Indeed
in a community composed of people with greatly heterogeneous beliefs
and projects, there is especially likely to be serious disagreement about the
rightness of a rule.
If there is no natural unanimity and no infallible standard for the
rightness of rules, and if the rules are obligatory, then the only way to
settle conflict is for the will of some to prevail over the will of others. But
that violates what Oakeshott describes as the fundamental principle of
moral obligation “ that no man may become obligated save by a choice of
his own. That is not so much a principle as an implication of the under-
standing of human beings that Oakeshott postulates throughout. For if
each person is an independent rational agent, with no access to infallible
truth, no one can claim a natural authority to impose obligations on
another.
A further reason given by Oakeshott against the contention that a law
can be identified by its conformity to justice is that there is no indisput-
able way of identifying legislators who might be depended on to produce
just law. Nor do we have access to indisputable signs by which to recog-
nize the quality of justice when it appears so as “to fend off the threat of
anarchy contained in the claim that the voice of ˜conscience™ is the voice
of jus.”11 For if the conscience of each individual is separate and


9 10 11
“Rule of Law,” 154, 141. Ibid., 135“36. Ibid., 156.
316 New foundations

independent from that of every other individual, there may be as many
versions of justice as people. Only if each person™s “conscience” were a
participation in one, universal and eternal conscience, as pantheists be-
lieve, would this problem disappear. These difficulties, Oakeshott
says, are recognized by those who try to escape them through declarations
of inalienable rights. But no such solution is acceptable to a skeptic. He
cannot therefore accept that unjust law is not law.
In the absence of an infallible, uncontentious test for the rightness of a
rule, the only alternative is to rest the obligation to observe a rule on its
authenticity. That makes the question “ how do we establish the authen-
ticity of a rule of law? “ central for a skeptical jurisprudence. We cannot
consult a rule book as we do in a game, for there is no way of identifying
indisputably the relevant rule book. Moreover, in a civil association the
rules are far more complicated than in a game. “These difficulties never
invade the rules of a game: any question of their authenticity is settled by
an accepted rule book, and the arbitrary character of the conditions
prescribed by the rules of a game precludes anything but a strictly relativ-
ist consideration of their ˜rightness,™ and there is no temptation to confuse
the two.”12 The authenticity of rules of law can be established only by
knowing who made them. We can then be certain that only rules which
“have been deliberately enacted or appropriated” by those who occupy
“an exclusively legislative office” and follow “a recognized procedure”
constitute authentic rules of law. Such persons may also deliberately alter
or repeal the established rules. The legislature need not be the sole source
of law, but a rule, such as a rule of common law, acquires the authority of
law by being subject to appropriation, rejection, or emendation in a
legislative enactment.13
Recognizing the authenticity of law consists in nothing other than
acknowledging that it has been enacted by those who have been given
the right or authority to do so. The authenticity of a law is thus synonym-
ous with its authority. But acknowledging the authority of law does not
entail approval of what it prescribes. For Oakeshott the distinction be-
tween acknowledging the authority of a law and approving of it is a
logical implication of the fact that the authority of law rests on the
authorization of the legislators that necessarily occurs before the law is
made. Thus the central question for skeptical jurisprudence is: How do
legislators acquire their authority? The authority of legislators cannot be
derived from any natural quality such as virtue, prudence, or wisdom
because there is no indisputable way of identifying such qualities. The


12 13
Ibid., 135. Ibid., 138.
Michael Oakeshott 317
authority of legislators can only be endowed by the office that they
occupy: “the authority of legislative enactments lies neither in their terms
nor in these having been chosen; it lies in the authority of the procedure in
which they were enacted.”14 The authority of an office, that is to say, the
right to create obligations, can be conferred only by those obligated.
Otherwise, the acquisition of authority would violate the fundamental
principle of moral obligation, as the Oakeshottian skeptic understands it,
that no person may become obligated save by their own choice.
How the disposition to acknowledge someone™s authority arises is
irrelevant; it may arise in any number of ways. Hobbes devoted Leviathan
to showing how the recognition of a sovereign authority might come
about in “a state of nature,” though he pointed out that it might also be
the result of conquest. What matters is not how those subject to the law
come to recognize the authority of those who make it, but that those
obligated do in fact acknowledge such an authority. In whatever fashion
acknowledgment first arises, those who are born into a community and
remain to enjoy the protection of its laws are implicitly acknowledging the
authority of the legal order. It is the same argument as that of Socrates in
the Crito when he says that, as he might have left Athens but never chose
to do so, he implicitly acknowledged an obligation to obey Athenian law.
Today, we implicitly make the same argument when we insist that the
freedom to emigrate is a defining mark of a free society. For only then can
those who remain be known to have remained willingly and be obliged to
observe the laws of that society. And whether we sometimes break the
law, Oakeshott emphasizes, has no more bearing on our acknowledgment
of its authority than our disapproval of it. The captured burglar, though
he struggles to escape, is nevertheless bound to acknowledge the authority
of those who restrain him. Acknowledging the authority of law is a
conclusion solely about the procedure by which it was made.
The authority of law thus rests on the procedure by which it was
enacted, which constitutes an objective standard visible to all that serves
as the rock for the law to stand on. Disagreements about whether proced-
ures have been observed can be settled by other procedures that are also
defined by authentic rules. The legislature may be constituted in any
number of ways, as long as the mode of constituting it and the powers
of the office of legislator are specified by law and conform to the proced-
ures laid down by law. In other words, the law is a self-authenticating
objectivity consisting in rules for procedures that are visible to and
accepted by all those subject to it.


14
Human Conduct, 156.
318 New foundations

The principle that no person may be obligated save by choice is pro-
tected besides by the fact that obligations are imposed by rules, not by
expressions of “will.” That laws are rules and that their injunctions

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