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are not “orders to be obeyed” prevents those obligated to observe them
from being “servile role-performers” because “even the least ambiguous
duty can be fulfilled only by a ˜free™ agent choosing what he shall do.”15
The anarchist who feels enslaved by law is really objecting, Oakeshott
says, to managerial rules because they compel him to serve an enterprise
that he would not have joined voluntarily. Thus, the indeterminacy of
rules is regarded by Oakeshott as one of the boons of the rule of law, not
as a defect.
A rule of law, then, does not merely distinguish between right and
wrong in conduct; it is an authoritative prescription of conditions to be
subscribed to in acting, and its counterpart is an obligation to subscribe to
these conditions. And the obligation to observe rules of law “is not merely
to feel constrained, nor is it to be confused with having a disposition
usually to comply with what a rule prescribes “ what has been called ˜a
habit of obedience.™ It is neither more nor less than acknowledgment of
the authenticity of the rule. And just as the authenticity or authority of a
rule relates neither to approval of what it prescribes nor to any remunera-
tory or punitive consequences that may be expected to follow compliance
or non-compliance with its prescriptions, so the obligation it entails is
related neither to approval of what it prescribes nor to a hope or a fear in
respect of the consequences of observance or non-observance. And this
obligation is not denied in a failure to comply or even in a refusal to
comply.”16
Oakeshott accordingly defines an association in terms of the rule of law
as a “relationship in respect of authoritative prescriptions which have a
certain jurisdiction and an ascertainable authenticity.” Such an associ-
ation postulates (what Marxism and Political Jurisprudence obliterate)
“agents engaged in self-chosen actions to promote or procure various
substantive satisfactions.” The prescriptions of such an association
impose upon its members obligations “to observe certain adverbial con-
ditions in performing all or any of these actions. These rules are not
designed to promote or to impede the achievement of these satisfactions
and are incapable of doing so, and they are not instrumental to the
achievement of a substantive purpose of their own. And these obligations
may or may not be observed, but they are not denied in a failure to
observe them.”17 Oakeshott concludes that: “The expression ˜the rule of


15 16 17
Ibid., 157. “Rule of Law,” 130. Ibid., 131.
Michael Oakeshott 319
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.”18
Here then, in the notion of the authority of law, resting wholly on
procedural rules, and postulating the idea of a moral practice, are not
only the ingredients of a skeptical jurisprudence, but also a model for a
solution to the skeptic™s dilemma. The idea of a practice explains how
individuals may voluntarily cooperate in an orderly fashion without either
acknowledging an infallible superior or sacrificing diversity. And the idea
of a moral practice enables us to understand how the rule of law can
resolve differences of opinion and maintain civil peace without recourse
to infallible, non-human truth.
It remains to consider how the desirability or justice of a law can be
established. Oakeshott recognizes that insulating authority and obligation
from consent or dissent to their demands might seem to render laws
“Remote, mysterious, cold . . . clothed in pitiless majesty, they ask neither
to be loved nor to be approved,” and make it plausible to regard these
“stern but unenthusiastic ogres” as “an affront to human dignity.” But he
dismisses this picture as “the invention of caricature,” and he gives three
reasons for doing so.19
The first is that the idea of law postulates a distinctive morality. We
cannot understand the rule of law without recognizing a certain concep-
tion of the nature of human beings and of what is due to human dignity.
That is one reason why the rule of law is, by definition, not an amoral set
of arrangements but a moral practice.
Secondly, the “amorality” of law is qualified by what Lon Fuller has
described as “the internal morality of law.” This inner morality prescribes
“conditions which distinguish a legal order and in default of which
whatever purports to be a legal order is not what it purports to be: rules
not secret or retrospective, no obligations save those imposed by law, all
associates equally and without exception subject to the obligations im-
posed by law, no outlawry.”20 It is “only in respect of these considerations
and their like,” Oakeshott grants, that it might perhaps be said that lex
injusta non est lex.21 But Oakeshott considers it more precise to think of
such requirements as the formal principles or the definition of a legal

18 19
Ibid., 136. Human Conduct, 157.
20
Oakeshott, “Rule of Law,” 140; Lon L. Fuller, “Positivism and Fidelity to Law “ A
Reply to Professor Hart,” Harvard Law Review 71 (February 1958): 645.
21
Oakeshott, “Rule of Law,” 140.
320 New foundations

order rather than as criteria of the justice of rules of law. To consider the
justice of law, something more is needed.
The third reason why law is not an “unenthusiastic ogre” is that as well
as asking whether a law has been properly enacted, we may “ and should “
ask whether it is right or wrong to have enacted it. In doing so, we
evaluate the conditions to be observed quite apart from their authority.
Such evaluation is what legislators are deciding when they deliberate
about proposals for enactment. Deliberation about legislation is de-
scribed by Oakeshott as follows: “Nevertheless, rules may also be appre-
ciated in respect of what they prescribe. . . Among makers of rules this
may invoke a variety of prudential and consequential considerations
(such as the difficulty or probable cost of detecting a delinquency), but
for them and for others its central concern is with what may be called,
somewhat loosely, the ˜evaluation™ of these conditions distinguished from
the determination of their authenticity. By this I mean not merely the
consistency of a rule with the others that compose the set of rules to which
it belongs or is designed to belong, but its virtue as a contribution to the
shape of this set of rules as the desirable conditions of an invented pattern
of non-instrumental human relationships.”22
By insisting that considering the justice of law is as important as
ascertaining its authority, Oakeshott is not, however, opening a Pandora™s
box of unlimited speculation. He carefully specifies that deliberation
about the justice of an enactment is the consideration of certain limited
questions. These are “a particular kind of moral consideration: neither an
absurd belief in moral absolutes” or “rights,” nor “the distinction between
the rightness and wrongness of actions in terms of the motives in which
they are performed.”23 The justice of a law “is composed of consider-
ations in terms of which a law may be recognized, not merely as properly
enacted, but as proper or not improper to be or to have been enacted;
beliefs and opinions invoked in considering the propriety of the condi-
tions prescribed in a particular law.” Because law is the bond of a civil
association and not of an enterprise pursuing a common purpose, the
justice of a law cannot be identified with the “merits of different interests,
with satisfying substantive wants, with the promotion of prosperity, the
elimination of waste, the equal or differential distribution of reputed
benefits or opportunities, with arbitrating competing claims to advan-
tages or satisfactions, or with the promotion of a condition of things
recognized as the common good.”24 Nor does association under the rule
of law require “a set of abstract criteria” for determining the jus of a law.


22 23 24
Ibid., 130“31. Ibid., 160. Ibid., 140“41.
Michael Oakeshott 321
What it does require is “an appropriately argumentative form of discourse
in which to deliberate the matter; that is, a form of moral discourse, not
concerned generally with right and wrong in human conduct, but focused
narrowly upon the kind of conditional obligations a law may impose,
undistracted by prudential and consequential considerations, and insu-
lated from the spurious claims of conscientious objection, of minorities
for exceptional treatment and, so far as may be, from current moral
idiocies.”25
Oakeshott™s concern here is to distinguish the kind of moral judgment
involved in evaluating the justice of legislative enactments from
other kinds of moral judgments. The proper concern of the legislator,
he says, is with “the negative and limited consideration that the prescrip-
tions of the law should not conflict with a prevailing educated moral
sensibility.” And an educated moral sensibility consists in the capacity
to distinguish between “the conditions of ˜virtue,™ the conditions of moral
association (˜good conduct™), and those conditions which are of such a
kind that they should be imposed by law (˜justice™).”26
Whether a law is “just” is then a judgment made by a particular set of
people at a particular time and place and subject to modification. It
cannot “specify anything so grand as the conditions of ˜human excellence™
or of human ˜self-realization.™” Yet it would be a mistake to conclude that
Oakeshott is recommending what is called “relativism.” For he is not
equating justice with whatever we happen to like here and now. Deliber-
ation about the justice of law rests on a commitment to a certain concep-
tion of law as implicit in a particular understanding of a human condition
and the corollaries of that understanding. Moreover, justice is “certainly a
moral and not a prudential consideration,” as Oakeshott keeps reminding
us. And he accordingly excludes from deliberation about justice almost
everything that his contemporaries consider to be the heart of the matter.
Deliberating about the justice of legislative proposals, is not, he insists,
about an “imagined and wished-for outcome” but about the desirability
of “conditions to be subscribed to by all alike in unspecifiable future
performances.” Neither worldly interests nor unworldly dreams have
any place in these deliberations. A well qualified legislator has a “discip-
lined imagination,” the ability to forswear “the large consideration of
human happiness and virtue . . . even the consideration of the most
profitable or least burdensome manner of satisfying current wants.”27 In
short, the proper subject of legislative deliberations is extremely modest “
it is some item in the established rules and the comparative merits of


25 26 27
Ibid., 143. Ibid., 160. Human Conduct, 163“64.
322 New foundations

alternatives to it. And the arguments for and against it are obliged to
ignore any effect on anyone™s interests or dreams and to consider only
whether it should be included in the res publica. Therefore, the model of
legislative deliberation for Oakeshott is the debate between Fox and Pitt
on the Alien™s Bill of 1792 because “Both speakers understood themselves
to be deliberating a rule of civil association, not the award of advantage
or disadvantage to assignable persons.”28
Many different considerations have to be taken into account when
deliberating about justice. The logic of such arguments is that of practical
reasoning in Aristotle™s sense: it is an enthymeme in which the major
premise is a maxim, a statement about what is generally believed to be
desirable, and the conclusion is recognized to be subject to question.
Such conclusions cannot, strictly speaking, be refuted, but they can be
resisted by arguments of the same sort that the audience may find more or
less convincing.
There is no place in any sense, however, for considerations of justice in
adjudication. Nevertheless, Oakeshott attaches an unusual importance to
adjudication, which arises from his conception of a rule.
According to Oakeshott, it is neither a defect of the law nor unusual
circumstances that make us resort to adjudication. It is rather “the
unavoidable indeterminacy [of rules]” that “calls for a procedure of
casuistry” in which the rules “are related to circumstantial occasions.”29
The “unavoidable indeterminacy” of rules is due to the fact that they
“subsist in advance and in necessary ignorance of the future contingent
situations to which they may be found to relate.” And however free the
laws might be from “ambiguity and conflict with one another,” their
nature as rules makes it impossible for them to “declare their meaning
in respect of any circumstantial situation.”30 The casuistry involved in
adjudication therefore necessarily enters into all subscription to rules of
law. But for the most part, we engage in such casuistry unselfconsciously.
Only when a dispute arises and a matter is brought to court does the full
analysis have to be spelled out.
As there is bound to be disagreement about the conclusions of the
casuistry that relates rules to particular circumstances, adjudication is
an essential part of the rule of law. The rule of law must therefore include
an office that is endowed with the authority and charged with the duty of
determining whether what was said or done on a particular occasion
subscribed adequately to the obligation imposed by the law. This office
“ a court of law “ is accordingly concerned with actual performances


28 29 30
“Rule of Law,” 179, n 1. Ibid., 135. Ibid., 144.
Michael Oakeshott 323
“solely in respect of their legality.” Its “task is to relate a general state-
ment of conditional obligation to an occurrence in terms of what distin-
guishes it from other occurrences.”31 It “cannot entertain speculations
about the intentions of legislators or conjectures about how they would
decide the case” because “to make law and to adjudicate a case are
categorically different engagements.” Nor may a court decide in terms
of what will promote public policy, any particular interests, or even “the
public interest” “ the rule of law “knows nothing of a ˜public interest™
save the sum of the obligations imposed by law.”32 Nor is the court
“concerned to arbitrate between competing substantive interests” be-
cause, since the suitors before the court are to be seen as ˜persona™ related
in terms of the rule of law, these suitors, “like the court itself, have no
˜interests.™” Nor may a court decide a case “in terms of so-called substan-
tive ˜rights™ claimed as a matter of jus in some current moral opinion: the
right to speak, to be informed, to enjoy an equal opportunity or the
advantage of a handicap. The rule of law knows nothing of unconditional
˜rights.™”33 Nor does the opinion of the judge about what is “just” have
any place in adjudication. In a court of law, says Oakeshott, justice “must
exhibit itself as the conclusion of an argument designed to show as best it
may that this is the meaning of the law in respect of this occurrence.”34
On whether judges are obliged to “follow precedent,” Oakeshott intro-
duces a new distinction. He grants that the procedural obligations of a
court may require it “to take account of decisions in earlier allegedly
similar cases.” But he denies that such cases are to be recognized by
the court as precedents to be followed. Its concern will be rather “with
the analogical force of the distinctions they invoked.” If, for instance, the
issue is to determine whether a trespass had been committed, the judge
may be required to consider whether the distinction between a public
highway and a private path made in earlier cases is or is not like the
distinction made in the case being argued before him. But such analogical
reasoning is intrinsic to all legal reasoning. What is always being decided
is whether a rule has been adequately subscribed to or violated. Therefore,
Oakeshott concludes that, “In respect of the rule of law the expression
˜case law™ is a solecism.”35
Neither rigidity, nor an obsessive attachment to the letter of the law,
nor indifference to human suffering accounts for Oakeshott™s view of
adjudication. His view follows necessarily from his understanding of
rationality, of moral association, and of rules, and his assumption that


31 32 33
Ibid., 144“45. Ibid., 146. Ibid.
34 35
Ibid. Ibid., 146“47.
324 New foundations

judges do not have access to a source of infallible knowledge about what
people ought to do and have “ about what is “just.” It is because
Oakeshott repudiates any claim to indisputable knowledge that he at-
taches so much importance to procedural rules and to distinguishing
legislating from adjudicating.
About punishment, which other theories regard as the essence of law,
not much need be said here because Oakeshott regards punishment as an
adjunct of law and not as intrinsic to it. Association in terms of the rule of
law, he says, “does not presume recalcitrance on the part of its members.”
But it does provide “for the punishment of those convicted of failure to
observe their obligations and perhaps something by way of remedy for the
substantive damage attributable to delinquency.”36 The retributive theory
of punishment is as alien to Oakeshott as nihilism. To suffer punishment,
he says, “is not an acceptable alternative” to fulfilling the obligation to
observe the law; “it cannot (and is not designed to) restore the situation to
its condition before the delinquency was committed.”37 Fear of punish-
ment may, of course, deter a potential delinquent. And to consider the
deterrent effects of the punishment is compatible with the rule of law. But
the question being considered is a prudential one and not of the essence of
the rule of law.
Oakeshott did not pretend to have invented the idea of the rule of law
or the civil association that it constitutes. He was disposed to think that
these contrivances had arisen in the manner described in Schopenhauer™s
story about a colony of porcupines, which he retells as follows:
They were wont to huddle together on a cold winter™s day and, thus wrapped in
communal warmth, escape being frozen. But plagued with the pricks of each
other™s quills, they drew apart. And every time the desire for warmth brought
them together again, the same calamity overtook them. Thus they remained,
distracted between two misfortunes, able neither to tolerate nor to do without one
another, until they discovered that when they stood at a certain distance from
one another they could both delight in one another™s individuality and enjoy one
another™s company. They did not attribute any metaphysical significance to this
distance, nor did they imagine it to be an independent source of happiness, like
finding a friend. They recognized it to be a relationship in terms of not
substantive enjoyment but of contingent considerabilities that they must
determine for themselves. Unknown to themselves, they had invented civil
association.38
As Oakeshott has emphasized in more than one context, no existing
state ever has or could operate purely in terms of the rule of law in the

36 37
Ibid., 147. Ibid.
38
Michael Oakeshott, Rationalism in Politics and other Essays (Indianapolis, IN: Liberty,
1962), 460“61.
Michael Oakeshott 325
strict sense. A purely civil association is therefore an abstraction “ neither
a description of an existing state nor an ideal to be realized. For one thing,
the state has to collect taxes to maintain itself, and tax laws are com-
mands, not rules. Nor can the rule of law protect the state against
aggression from other states. “One unavoidable contingent circumstance
of modern Europe for which the rule of law cannot itself provide” is “the
care for the interests of a state in relation to other states, the protection of
these interests in defensive war . . . and the pursuit of larger ambitions to
extend its jurisdiction. And this is . . . because ˜policy™ here, as elsewhere,
entails a command over the resources of the members of a state catego-
rially different from that required to maintain the apparatus of the rule of
law, and may even entail the complete mobilization of all those re-
sources.”39 Unlike Hegel, Oakeshott believed that civil association is
severely distorted by war. It is also distorted when the state seeks to
provide for those who cannot look after themselves insofar as the govern-
ment becomes involved in the redistribution of resources and managerial
activities. Nevertheless, where the rule of law constitutes the fundamental
framework, and where it is not lightly qualified or frivolously abandoned,
something approaching a civil association can be and has been main-
tained. Oakeshott makes no grand claims for the rule of law. Its achieve-
ment, as he sees it, is modest but indispensable: “The rule of law bakes no
bread, it is unable to distribute loaves or fishes (it has none), and it cannot
protect itself against external assault, but it remains the most civilized and
least burdensome conception of a state yet to be devised.”40
Skeptic though he is, Oakeshott has explicated a distinctive understand-
ing of what human beings are and reached the conclusion that association
in terms of the rule of law is the “least burdensome of all human relation-
ships” because “it excludes no other and that mitigates conflict without
imposing uniformity.” It is “particularly appropriate to a state because it
is the only morally tolerable form of compulsory association.”41 That is
the voice not of a nihilist, but of a philosopher who considers it impos-
sible, and folly to try, to escape from “the unavoidable dissonances of a
human condition,”42 but believed that, without pretending to read the
mind of God, or imposing our will on others, or abandoning ourselves to
chaos, we have available in the rule of law a mode of association that can
enable us both to “delight in one another™s individuality and enjoy one
another™s company.”43

39 40 41
“Rule of Law,” 163. Ibid., 164. Rationalism, 460.
42 43
Human Conduct, 81. Rationalism, 460.
16 Postscript: Morality, individualism, and law
_____________________________________________________________________________________________________________________________________________________



I
The current repudiation of the idea of law is, as we have seen, at the same
time a repudiation of individualism, which is justified as a defense
of morality. We are told that if we favor compassion and altruism, rather
than the ruthless pursuit of self-interest, we must reject the idea of law as a
set of fixed rules designed to make possible an association of people who
wish to shape their own lives and pursue their own projects. The trad-
itional idea of law is said to be acceptable only to ruthless individualists
who recognize no concern or responsibility for maintaining a decent
communal life and securing the well-being of their fellow men.
This way of understanding individualism and the relation between the
traditional idea of law and morality arises from a gross confusion. It
began with the conclusion that because Hobbes had rejected the ancient
and medieval view that linked morality to the governing principle of the
cosmos, his idea of law is an amoral concept. The confusion was exacer-
bated by the message drawn wrongly from Bentham™s utilitarianism, that
individualism consists in advocating the heartless pursuit of self-interest.
In reaction against that message, the opponents of individualism who
became influential in the course of the nineteenth century equated moral-
ity with altruism or selflessness and contrasted it to individualistic selfish-
ness. Consequently, the moral life came to be understood as a progress of
altruism ascending to self-sacrifice. This equation of morality with altru-
ism led to the conclusion that a regard for individuality signifies a disdain
for morality. And it was taken to follow that in order to establish justice
and peace, everyone must be made to conform to a pattern for moral life
that represses the rebellious individuality of human beings. There is
disagreement about what form such regulation should take and how far
it should go. But the equation of morality with altruism makes it difficult
to resist the conclusion that a man™s moral quality increases with his
readiness to sacrifice his personal wants and aspirations in order to serve
some “higher whole,” whether this higher whole is identified with the


326
Postscript: Morality, individualism, and law 327
nation, the state, a class, or all of “humanity.” In all such versions of the
morality of altruism, law has the character of a repressive machine
designed to reduce the evil messiness of human life to a “good” orderli-
ness, which citizens who have been properly educated will not resent but
submit to gratefully.

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