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Individualists who reject this conclusion are disposed to define human
beings as possessors of “rights,” which the law should protect. It is the
view that we find first in Locke and most recently in Political Jurispru-
dence. But using “rights” as a standard by which to measure the justice of
law merely by postulating that human beings come into the world with a
knowledge of what is due to them is usually not recognized as legitimate
because universally valid knowledge of “rights” must be naturally avail-
able to everyone, and this is not the case. For if there is no non-human
source of knowledge about “rights” to which every human being has
access, then a “right” can only be a human invention. Rights then become
arbitrary claims, and there is no reason why anyone else should be obliged
to recognize the rights that I demand because such “rights” cannot be
distinguished from “interests,” and so cannot serve as a criterion for
deciding which interests to satisfy. Nor is there any reason why the
various “rights” being claimed by different people should not conflict in
the same way as my “interests” may conflict with yours. The only alter-
native is to have the state or the law define rights. But then “rights”
cannot serve as an uncontentious, given test for the justice of law.
There are two ways in which human beings may be supposed to have
access to such indisputable, universal truth. Either they may possess a
power of perceiving an eternally fixed order outside human life, as Plato,
Aristotle, Aquinas, Cicero and Locke believed, though they gave different
accounts of the character of this order and of how we come to know it.
Or human beings must arrive in the world already programmed by
such an order, that is, containing within themselves the imprint of an
eternal rational pattern, as Kant assumed. The Marxist theory of history
is the most coherent (though not the only) variant of the latter view. But
for Marx, the eternal order is imprinted in the organization of the pro-
ductive activities of human beings. In short, the attempt to find a moral
basis for individualism in “rights” must postulate an understanding of
human rationality that identifies it with the capacity to discover indisput-
able and universal truths from which infallible practical guidance can be
derived. This postulate makes it possible to explain the great oddity of the
human condition, i.e., that though our world is full of confusing variety
and irregular change, we can nevertheless rely on some steadiness in it. By
discovering something fixed that underlies the variability of our everyday
experience, human reason can gain access to truth unaffected by human
328 New foundations

will and valid for all human beings and can thus enable us to escape from
uncertainty about what constitutes justice.
But this understanding of rationality has two irremediable flaws. It is
not only incompatible with the modern individualist™s rejection of meta-
physical truth, such as ancient and medieval philosophers relied on. It
also destroys any ground for valuing human individuality. For it obliges
us to identify individuality with irrationality: If reason is understood as
the power to grasp universal uncontentious truth, the only way of ac-
counting for individuality is to suppose that there is an irrational element
in human nature that resists reason and produces a chaos of desires and
aversions, operating in no regular fashion. The victory of this irrational
element over reason gives rise to the endlessly changing, erratic diversity
in human behavior. Human beings must then be regarded as unstable
compounds of two warring parts, which have been given different names
“ reason and passion, spirit and matter, mind and body. But whatever the
names and however their relationship is described, man has to be seen as
an amalgam of two elements, one being the source of truth, order, and
goodness, and the other, of disorder and evil. And to believe that individ-
uals should be free to shape their lives as they choose is tantamount to
believing that irrationality should be given free rein. It was this under-
standing of rationality that led Plato and Aristotle to endorse two con-
flicting meanings of law, one which identified law with the bond uniting
independent agents pursuing heterogeneous projects, and another which
identified law with a pattern for the moral perfection of all individuals. In
other words, understanding rationality as a capacity for discovering
universally valid truth made it impossible to explain why an association
of self-moving individuals should be valued and gave rise to the tension
between justice and liberty that dominated the ancient discussion of law.
Though the tension was eliminated by Hobbes, it has been revived by the
efforts of his successors to counteract what they regard as the amorality of
his solution.
Individualists are not, however, obliged to renounce either morality or
rationality. This is not to deny that there is good reason for the dissatis-
faction with Hobbes™s manner of escaping from the tension between
justice and liberty. For Hobbes retained the picture of man as an amal-
gam of two warring elements, which picture could account for human
individuality only by allying it with the element of irrationality. Neverthe-
less, there are in Hobbes™s philosophy (as in that of Hume) intimations of
an alternative understanding of the human condition, and these intim-
ations account for those passages that cannot be reconciled with the
view of Hobbes as an amoralist. This alternative has hovered over the
Postscript: Morality, individualism, and law 329
European imagination since the rise of Christianity. But it was not
explicitly formulated until very recently.
It was Michael Oakeshott who, for the first time, portrayed a human
being as all one, that is, a creature who cannot help being rational. In this
picture, if a person™s faculties are in good order, he exercises his rational-
ity in whatever he is doing because he is always interpreting his experience
and responding in the manner that he selects. This means that whenever a
man is aware of anything, he has made something of it. He may see a
mountain as a terrifying obstacle, a glimpse of eternity, a challenge to
climb, or a store of minerals; he may find joy in weeding his garden or in
flying a plane, choose solitude or dote on the noise of a city, work at the
craft of his forefathers or wander away to distant lands, feel obliged to
endure pain silently or to rail at the heavens, have a genius for laughter or
for mathematics. In short, to say that a man is a rational being is to say
that he makes of himself what he will and that things appear to him as he
chooses to see them. He is not potter™s clay being “conditioned,” or
shaped by a superior or by his circumstances. He does not arrive in the
world with a prefabricated destiny; he himself is both potter and clay.
It follows that what a human being does voluntarily is not caused in the
way that a trigger sets a bullet in motion, that far from being a mechanical
process, human conduct always and necessarily involves choice. A man
may have to deal with biological processes within his body and physical
processes outside it, and he may be deprived by force of his human
faculties. But as long as he retains his reason, he chooses how to under-
stand and to deal with his experience. There is variety in human conduct
because a man™s interests or wants are what he has learned to think they
are, and what has been learned can be learned differently. Human beings
are not therefore the passive victims of forces, drives, or needs. They
transform their experience into a variety of interpretations, responses,
and reflections. Their moral life consists in shaping and maintaining the
integrity of their personality and respecting, perhaps assisting, the efforts
of others to do the same.
We must then recognize that the morality that can sustain the kind of
individualism and the idea of law that Westerners have learned to value
rests on the conception of rationality as a creative faculty rather than as a
pipeline to certainty. The important novelty in this morality that is crucial
for understanding the idea of law is that each man is assumed to possess
individuality not in spite of, but because of his rationality. His individu-
ality is not accounted for by a “core” of passions or urges beating against
a corset imposed by “reason” or “society.” To say that human beings
possess individuality means that all are the makers of their own thoughts,
330 New foundations

that they are capable of shaping a personality, and that they are respon-
sible for what they become. Individuality is not then displayed in egoism,
willfulness, selfishness, or rebellion, but in the integrity of a personality.
And therefore the individuality of each person need neither threaten nor
be threatened by the individuality of others. Men are not obliged either
to beat their neighbors or to submit to them; they can as easily laugh
with them, ignore, or care for them. The fundamental fact about the
human world is not the omnipresence of conflict, but the potentiality
for unlimited variety.
With this insight into human nature the human dilemma assumes a
totally different form. It has nothing to do with repressing egoism in favor
of altruism or asserting the “rights” of individuals against “constraints”
imposed by society, morality, or law. Instead, what makes human life
difficult is that there are infinite choices, and the problem is how to clear
some paths through the jungle of freedom. Individuality is not “given”;
men have to learn how to shape themselves, and they may do so more or
less elaborately, subtly, or coherently. When they are being educated, they
are being initiated into an awareness of the variety of interpretations and
responses available to them. What they find in their life in society is a
collection of materials on which to draw in order to fashion their lives.
But if understanding rationality in this fashion (as a purely human
attribute, instead of as a pipeline to non-human certainties) offers a better
explanation of individuality, it also suffers from a great drawback: It
allows no escape from the constant flux of human life. And the implica-
tions are highly disconcerting. As there is no cosmic necessity for any
human contrivance, everything can be questioned. Since rationality
allows men to imagine infinitely various alternatives, there are no natural
limits to the questions that can be asked. Civilization is therefore vulner-
able to being destroyed by the same inventiveness that made it. Of course,
anyone who tries to question everything at once will reduce himself to
madness or idiocy because a question cannot even be framed without
taking some language for granted. But what or how much can be ques-
tioned at any time and place without endangering civilized life is far from
obvious. In short, human life is surrounded by mystery and is full of
fragility, and we can never hope to dispel the mystery or escape from the
fragility.
Furthermore, it follows that while there is no ground for depreci-
ating individuality as a vestige of irrationality, neither can our respect
for individuality, or even for human life, be indisputably justified. It can
only be held as an article of faith. We may give various reasons for
respecting human dignity, and we may even find some common ground
underlying them. But however long we persist in our questions, we cannot
Postscript: Morality, individualism, and law 331
arrive at a reason for which an indisputable justification can be given.
However firmly we assert that “every human being is to be treated as an
end and never as a means,” that understanding must be a commitment
because we accept it even though there are alternatives to it that we
cannot demonstrate to be necessarily false. We can elaborate and embel-
lish this commitment, but we cannot establish a universal and wholly
uncontentious obligation to regard every human being as an end in
himself. An affable cannibal may stop to chat before boiling, and the
missionary may try to persuade him that men are not for eating. But if he
is a sound, stalwart cannibal, and not seduced by soft words or frightened
by foreign gods, he will in the end proceed to the pot. And the missionary
can save himself only by killing the cannibal. The cannibal™s understand-
ing of men does not include the sanctity of human life, and we can offer
no rational necessity why it should. That some men think as cannibals do,
whether knowingly or not, is an unpleasant but inescapable fact that we
are obliged to recognize.
Science is as vulnerable as morality. If we accept a scientific explanation
of the precipitation that we call rain, we may confidently say that anyone
who expects to produce precipitation by rolling stones is mistaken. Our
awareness that we may later change our views on rain need not prevent us
from declaring the statement to be true. But we cannot ultimately justify
our view to the stone-rolling rainmaker other than by declaring a com-
mitment to a particular manner of explaining such phenomena “ the
manner which we consider to be “scientific.”
In short, once we cease to think of human rationality as a pipeline to
eternal verities, we can achieve a coherent understanding of human indi-
viduality. But we have to pay the price of admitting that everything we
believe is ultimately questionable. And this admission is what makes the
rule of law so peculiarly important for those who value the individuality
of human beings.

II
If we think of ourselves as possessed of a power to create ideas about
ourselves and our world, if we believe that nothing is given to guide us
in this creation but what other men have done in the past (or a faith in
divine revelation that no individual can oblige another to accept), if
we value ourselves for the capacity to be individual personalities, it
follows that we want not just to survive, but to make use of resources
that are to be found only in a life among other men. We want to be able to
profit from the understandings and skills that our ancestors have de-
veloped and that our contemporaries are inventing. We want, in short,
332 New foundations

to learn how to live in a civilized manner, and that is why we value
social life. The community we live in is not then merely a protective
association, but rather the seed-bed of our individuality. Individualism
does not conflict with a regard for communal life and responsibilities.
The two are inseparable.
If rationality is understood as a creative power, what makes it difficult
for human beings to live together is not so much depravity or aggressive-
ness as a genius for diversity. Disputes are bound to arise not just because
human beings can be wicked, but because they are rational. And even
where there are no sharp disputes, there is bound to be confusion arising
from the variety of interpretations and responses that human beings can
invent. However much people may have in common and however amiable
they may be, they will at times arrive at different and perhaps irreconcil-
able interpretations of the practices they share. Even if everyone were
always ready to give way, there would be no way of deciding when the
yielding has to stop. The question to be answered is: How can disagree-
ment be settled without reducing men to sheep? And the answer is: By
giving some members of the community “authority” to decide some
questions for all. The concept of authority was the revolutionary contri-
bution of Thomas Hobbes to the understanding of law as the bond of an
association of individuals pursuing heterogeneous projects.
If we recognize that neither nature nor reason can provide indisputable
answers to our questions, we are obliged to accept decisions whose
authority we acknowledge because otherwise our disagreements must
either remain unresolved or be settled by force. The concept of authority
offers a way of achieving order without repressing individuality because
when we recognize someone™s authority, we oblige ourselves only to abide
by his decisions, not to agree with them. Order based on respect for
authority does not aim to overcome, remove, or dissolve disagreement,
but only to provide ways of settling it. It is possible to recognize some-
one™s authority to decide without giving up or denying one™s own, differ-
ent way of thinking. And that is why a community with a respect for
authority may include an unlimited variety of opinion and conduct. But it
must reconcile itself to an element of arbitrariness in its manner of being
governed. For as recognizing authority means giving someone the right to
decide a question that has no indisputable answer, such a decision is
necessarily in some degree arbitrary because it cannot be shown to be
necessarily correct.
The reason for recognizing someone™s authority is to secure not just an
absence of conflict, but peace in the most profound sense. This sort of
peace is a condition in which there can be stable expectations, in
which every man can know from one day to the next what is his own,
Postscript: Morality, individualism, and law 333
what may be demanded of him, who may assert his will over him, and
how he and others can resolve their differences without conflict. The only
way of achieving such peace is by living under a system of rules that define
who decides what, when, and in what manner. Such a system constitutes
the rule of law. In short, if we acknowledge the individuality of men, we
can live and work with others in an orderly fashion, i.e., with reasonably
stable expectations and ways of reaching agreement, only by acknowledg-
ing an obligation to subscribe to laws that are promulgated in an author-
ized fashion, even when we do not approve of or like the consequences of
observing them. The authority of law must therefore be distinguished
from its desirability. The point of insisting on certain procedures for
passing laws, that is, of defining what constitutes an authoritative ruling,
is to enable a multitude to act together, to pursue only one of many
possible courses of action, even when they disagree about which is most
desirable. If we fail to distinguish the desirability of law from its author-
ity, we destroy the fundamental condition of social peace. Those, like
H. L. A. Hart, who insist that the validity of law is independent of its
justice are not treating the law as amoral. On the contrary, though they do
so unwittingly, they are recognizing that the moral foundation for law lies
in a hitherto unacknowledged individualistic morality. By defining the
concept of authority so rigorously and boldly, Hobbes provided “ what
Socrates, in the Crito, and Aquinas, in his discussion of the justification
for rebellion, were intimating “ an explanation of why we are obliged to
observe the law even when we find it objectionable. But the moral context
of this explanation remained unrecognized until recently.
Hobbes™s modern successors, who shared his rejection of the ancient
cosmology, either failed to appreciate the moral importance of his inven-
tion or found it too difficult to accept its painful implication that, in order
to secure social peace, we must reconcile ourselves to accepting an irredu-
cible element of arbitrariness in our social arrangements. Locke reverted
to Ciceronian confusion in his attempt to equate law with natural law and
confounded acknowledging the authority of law with consenting to it.
Kant evaded the problem by replacing the certainties of the ancient
cosmology with a foundation for indisputable moral knowledge innate
to the structure of human rationality. Bentham invented a variety of
technical devices in futile attempts to dissolve any element of arbitrariness
in social arrangements and further promoted the confusion of authority
with consent. Hart and Kelsen, the former more than the latter, provide
intimations of a concept of authority but are too much in thrall to
Bentham or Kant to succeed. For Marxists and Political Jurisprudence,
the problem “ to which the concept of authority offers a solution “ does
not exist because neither Marxism nor Political Jurisprudence is
334 New foundations

concerned with securing an association of independent agents, each pur-
suing individual own projects. Instead they are concerned with promoting
one or another enterprise in which the individual members serve as
instruments for achieving the aims of the communal project.

III
As authority can only be exercised where there is a system of rules
designating who decides what, by what procedures, and under what
conditions, the concept of a rule is the necessary complement of the
concept of authority in the idea of law. Since ancient times, when so
much attention was directed to the equation of law with rules, there has
been a great deterioration in the understanding of the nature and place of
rules in law. Even the relatively simple but crucial distinction between a
rule and an order was obfuscated by Bentham, despite his animadversions
against judge-made laws. As Kant™s identification of law with eternal
verities made him indifferent to the question answered by the concept of
authority, the importance of promulgating law as rules was not an issue
for him. Marxism and Political Jurisprudence reduce the notion of a rule
to a sinister rhetorical device. What distinguishes Positivist Jurisprudence,
such as that of Hart and Kelsen, and more recently the Formalism of
Summers and Atiyah, as well as the Skeptical Jurisprudence of Oakeshott,
is a return to an emphasis on rules as the essence of law.
To appreciate the role of rules in law, we have to bear in mind two
important distinctions: between a rule and an order, and between instru-
mental and non-instrumental rules. The distinction between an order and
a rule, which has been largely ignored in modern jurisprudence, was
regarded as central to the idea of law in the earliest reflections on law.
An order specifies an action to be performed and is designed to produce a
predictable change in behavior; the more particular the order, the more
unequivocally we can identify whose behavior will be changed and in
what fashion. What confuses the distinction between an order and a rule
is that an order may be general, that is to say, it may apply to a class of
persons. But a command to a class of persons, to do this or that, is still an
order and not a rule. Laws drafting every male of eighteen into the army
or requiring taxes to be paid are examples of such general “orders.”
Whereas Plato and Aristotle emphasize that orders are the instruments
of arbitrary masters, or tyrants, Oakeshott emphasizes another aspect of
the distinction between orders and rules, namely, that rules are “adver-
bial.” Instead of commanding the subject to perform anything, a rule
designates the manner in which certain activities are to be carried out by
those who wish to engage in them or a manner of punishing certain
Postscript: Morality, individualism, and law 335
actions that are forbidden. A law against murder does not command
anyone to refrain from killing, nor does it prohibit all killing. It stipulates
that whoever causes the death of another person in a certain manner
under certain conditions will be guilty of the crime of murder. It prohibits
causing death “murderously.” Thus, at the heart of the idea of law is a
sharp distinction between an obligation to subscribe to certain conditions
in doing what we choose and an obligation to perform this or that action
at a given time and place.
Our freedom of choice depends on the extent to which we are governed
by regulations that have the character of rules rather than orders. This all-
important distinction has been lost in the confusion generated by the talk
about open and closed societies, or, more and less, strong and weak
government. How free we are to run our own lives depends not so
much on the number of “laws” as on whether they are rules rather than
orders. Though all “laws,” because they apply to classes of people, are
couched in terms that give them the appearance of rules, increasingly in
recent years many so-called laws are in fact orders.
Nothing like the ancient Greek preoccupation with the distinction
between orders and rules appears in modern jurisprudence until H. L. A.
Hart. Nevertheless, although Bentham in some contexts dismisses the
distinction, it was generally taken for granted. But a deliberate rejection
of the need to make any such distinction can be traced from Realist
Jurisprudence to its apotheosis in Political Jurisprudence. The concern
of advocates of Political Jurisprudence to use the law as an instrument for
achieving certain practical results leads them to carry to its logical ex-
treme the Realist tendency to equate law with judicial decisions, which are
orders, and to repudiate the importance of legislative rules.
The second distinction between instrumental and non-instrumental
rules was first formulated by Michael Oakeshott, though it is implicit in
Kant™s emphasis on the distinction between moral and utilitarian motives,
and in Pashukanis™s distinction between technical and legal regulations.
But it is implicitly rejected by other Marxist theorists and by all advocates
of Political Jurisprudence, as well as by Locke and (on occasion) by
Bentham, because they treat law as an instrument for providing certain
satisfactions or executing certain projects.
In a community regulated by instrumental rules, the activities of
the subjects are directed to serve a substantive purpose, as in a “theo-
cracy” such as Calvin™s Geneva, where all regulations are designed to
achieve salvation, and no one in the community is allowed to refuse to
seek salvation. Today the most familiar example is a country engaged in
war, where “laws” may be promulgated in the usual fashion, but all
regulations are designed to promote the “war effort.” Non-instrumental
336 New foundations

rules differ from instrumental ones in the same way as the rules of a game
differ from the tactics of a team. The tactics are designed to achieve
victory; the rules are designed to define the game and enable it to be
played. Non-instrumental rules of law define conditions that make it
possible for all the members of the community to devise their own
projects and to pursue them as they choose without interfering with one
another. They accordingly refrain from doing two things: They do not
define purposes to be pursued, and they do not hand out advantages.
Thus, the laws defining the conditions for making a valid contract do not
constrain anyone to enter into any contract; the rules defining property or
theft do not distribute property, but they make it possible to know what
constitutes property and a secure claim to it. What makes it difficult to
understand non-instrumental rules is that the operation of all rules is
likely to affect some people adversely and others beneficially. Rules of
procedure in a courtroom may be said to work to the disadvantage of
would-be perjurers, but the purpose of the rules is to make it possible to
distinguish the guilty from the innocent. Though rules defining murder

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