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impose disadvantages on certain killers, their purpose is to maintain
security of life. Indeed, in connection with every rule of law we may
identify people who might find it more or less advantageous, but that is
an unavoidable, incidental, unintended consequence, just as in tennis the
rule that forbids awarding points to the player whose ball lands outside
the court may operate as a handicap on stronger players and as an
advantage for weaker players who could not hit the ball so far anyway.
That there can be a purpose for rules other than the distribution of
advantages follows from recognizing that human life does not consist
solely in the acquisition of wealth or power and that the value of different
human lives does not rest solely on the satisfactions acquired. As this is
denied by Marxists and the advocates of Political Jurisprudence, they
cannot acknowledge the reality of non-instrumental rules. But if power
and wealth are not the sole objects of human endeavor, and if human
beings can prefer to live their lives in certain conditions because they find
such conditions admirable or enjoyable, then there can be rules designed
not to distribute advantages, but to maintain a desirable kind of commu-
nal life. No doubt there may always be those who think only of what they
will gain from this or that arrangement and who will seek to get laws
framed accordingly. But the concern in discussions of public affairs with
that curious entity that has been variously described as “the common
good,” “the public interest,” “the good of the realm,” the “national
interest,” or “the res publica,” with which even the most adamant pressure
groups try to identify their claims, testifies that we do somehow recognize
a distinction between instrumental and non-instrumental rules.
Postscript: Morality, individualism, and law 337
The distinction between instrumental and non-instrumental rules even
more than that between rules and orders provides an antidote to the
individualist antipathy to connecting law with morality. For it is generally
assumed, though rarely acknowledged, that those who insist on a connec-
tion between law and morality equate law with a body of instrumental
rules designed to achieve a certain pattern of life or goal towards which
everyone in the community should be directed. If morality is conceived of
in this fashion as a given substantive purpose, then the law must consist of
rules instrumental for achieving that purpose. And it would follow that to
allow freedom of choice, law must be divorced from morality. But no such
consequence follows from a moral preference for non-instrumental rules.
In addition to distinguishing between rules and orders and between
instrumental and non-instrumental rules, we have to bear in mind the
indeterminacy of rules. This indeterminacy was clearly understood by
ancient and medieval writers but has become increasingly obfuscated by
modern writers despite their preoccupation with explicating the operation
of law. They fail to recognize that, as the law deals with contingent
matters, rules of law cannot specify with certainty what is to be done in
particular circumstances. There may be such complete agreement on what
a rule means in certain circumstances that the indeterminacy goes un-
noticed. But the indeterminacy is nevertheless present because of the
logical relationship between a general proposition and a more particular
one about contingent matters. The particular can be fitted into a variety
of general statements, and the particulars that could be implied by a
general statement cannot be exhaustively stated. Hence, there can be no
certainty about what a rule of law requires.
This uncertainty, vexing though it is, also endows the law with an
important intrinsic virtue: The indeterminacy of the law contributes to
its stability. It does so in two ways. Where laws are made by an assembly
of men, or where laws must be acceptable to a heterogeneous community
over a long stretch of time, a degree of indeterminacy makes agreement
and acceptance easier. Differences of opinion, at least within certain
areas, can be reconciled under general terms, and the exact meaning can
then be left for the court to decide as disputes arise. Even more important
is the fact that the indeterminacy in laws makes it possible for the law to
remain stable while adapting to changing circumstances. Not only do new
situations arise, but in addition people™s desires change. Law™s indeter-
minacy allows us to take account of what has changed by making a new
interpretation of the words. As the words are not repudiated, the rule
stands and continuity is preserved even while an innovation is intro-
duced. In short, law can secure stable expectations because, as Levi
shows, new and unforeseen circumstances can be recognized as instances
338 New foundations

of an established rule. Thus, the law can both change and restrict the
uncertainty to which members of the community would otherwise be
exposed. What has attracted the most attention, however, since the latter
part of the nineteenth century, has not been the virtue of the law™s
indeterminacy, but the difficulties to which it exposes us. These difficul-
ties, while real enough, have nevertheless been grossly exaggerated be-
cause certain concepts have been lost sight of. As Realist Jurisprudence
became more influential, there was a growing disposition to deny that
adjudication should or could be distinguished from legislation. The ex-
ploration of law as a constantly altering system of rules led to a greater
awareness of how much adjudication changes the law. And it became
fashionable to believe that because law is not discovered in Nature, or
revealed by God, or imprinted in human reason, as it is not eternally
fixed, it cannot be objective. Once law lost its aura of fixity, it seemed to
have lost its claim to objectivity.
What was overlooked, however, was that adjudication and legislation
change the law in different ways because each is addressed to a different
question. The legislator™s question is: Can the difficulty before us be
resolved by altering the rules? The legislator is authorized deliberately to
change the rules. The judge™s question is: What meaning does the relevant
rule have in the circumstances before us? The judge is authorized to
maintain the established rules and not to change the rules. But the
accumulation of judicial decisions will unavoidably produce changes in
the meaning of the rules. If, however, such changes take place slowly as
unintended consequences of interpreting the established law, they need
not interrupt continuity or destroy the stability of the law. On the con-
trary, because the uncertainty of the law allows for such change, the
stability of law is the complement of its uncertainty.
The Realists™ rediscovery that the law is not deduced from universal
and indisputable truths, such as Kant envisages, led them also to empha-
size the arbitrariness of judicial decisions. It is, of course, true that the
judge™s decision is arbitrary in the sense that it cannot be deduced from a
rule of law in the way that a conclusion is deduced in a geometrical
demonstration. It cannot therefore be demonstrated to be the only and
necessarily correct decision. Nevertheless, a judicial decision need be
neither irrational nor subjective because it can be supported by reasons,
and the system of law dictates what kinds of reasons are appropriate. It is
therefore possible for others who are conversant with the statutes, deci-
sions, and procedures of the land to recognize that a decision is reason-
able even when they themselves might have chosen another. Whether a
decision is a reasonable legal decision depends not on whether we like its
consequences, but on whether it can be justified by appropriate legal
Postscript: Morality, individualism, and law 339
reasoning. If we preserve a clear distinction between the ways in which
judges and legislators change the law, we can preserve stability while
adapting the law to a variety of circumstances. But the distinction be-
tween judging and legislating can only be preserved if both judges and the
public respect the difference between interpreting established rules and
deliberately making new law.

IV
It has, however, become fashionable to follow the lead of Political Juris-
prudence in denying not only that adjudication can be distinguished from
legislation, but even that the law consists of rules that have to be inter-
preted by courts and should be changed only by authentic legislators. This
fashion has flourished because we have lost sight of two further concepts
intrinsic to the idea of law, that of a “historical objectivity” and of
“practical reasoning.” Before the idea of law came under attack, these
concepts unselfconsciously formed part of the mental baggage of those
who served our legal system and were subject to it. They have by now all
but disappeared even from academic reflection on the law.
A historical objectivity, or what Oakeshott calls a “practice,” consists
of contingent connections between contingent ideas made by human
beings. There is no necessity for any of these connections, and they might
have been made differently or not at all. But having been made, they
constitute an objective order. The character of this order is most obvious
in a language, in the narrow sense of French or English. Every language
has changed and continues to change, with new words or constructions
being introduced and old ones being dismissed as archaic. Nevertheless,
those who speak a language can understand past examples of the language
and do not doubt that their utterances are meaningful and can be under-
stood by any other speaker of the same language. For they regard their
language as an independent, coherent, impersonal public identity that they
have found, not made. This view constitutes the objectivity of a language,
even though it has been made by many different people over time and has
continuously changed. It is a historical objectivity.
A historical objectivity is not something created here and now, but the
unforeseen consequence of performances by persons who were thinking
of other things. What matters is that a historical objectivity is not created
by the agreement of those who submit to it; for them it is just as given
as if it were part of the cosmic order. They take it to be given because it
has a continuous identity that has been recognized over many gener-
ations. Thus, a historical objectivity acquires the character of a “natural”
object.
340 New foundations

The explicit formulation of an understanding of law as a historical
objectivity is the contribution of Savigny, who emphasized the intricacy
of the historically achieved coherence of the law and the danger of
destroying that coherence by wielding the radical surgery of codification.
That his disciples emphasized instead the changeability of law is not
surprising because a historical objectivity such as law (or language) lacks
a permanent substratum or a given objective or end for the changes within
it. But if that prevents it from being fixed, it need not destroy its stability.
That was not, however, what Savigny concerned himself with explaining.
He did not point out, as Levi did later, how stability could persist amidst
change, how “ as the new is bound up with what remains of the old “ the
new acquires the maturity of an established form.
Understanding the nature of law as a historical objectivity has become
especially difficult in recent years because that understanding rests on the
concepts of authority and practical reasoning, both of which have been
neglected by most modern writers. By identifying law as the product of
decisions made by those who have been given a right to decide by the
subjects of law, the concept of authority explains how law™s content can
be objectively determined and ceases to be anything like a “subjective
opinion.” The concept of practical reasoning explains how the judge™s
interpretation of the law can be objective and reasoned, as well as amen-
able to objective and reasoned criticism, even though judicial decisions
cannot be shown to be indisputably correct and may be overturned by
superior courts. How practical reasoning makes it possible to reach
objective legal decisions was, as we have seen, first explained by Aristotle,
elaborated in modern times by Edward Levi, and later, with a somewhat
different emphasis, in Michael Oakeshott™s discussion of a “moral prac-
tice” and analogical reasoning.
The neglect of practical reasoning and its crucial importance for the law
springs from a disposition, encouraged by the influence of Kant, which
has dominated modern thought and reflection on the law. This is the
disposition to think in terms of a dichotomy between indisputable, uni-
versal truth and incoherence. According to this way of thinking, if we
cannot know the former, there can be no truth at all, or only the instant
certainties of “apocalyptic utterances.”1 Confined, as some have believed,
to these alternatives, modern men have clutched at doctrines like Marx-
ism or structuralism, which allow for no contingency, or else have
wallowed self-righteously in chaos and cultivated an appreciation of
nothingness. Weird combinations of both tendencies are displayed in
the doctrines of Political Jurisprudence. But once the law is seen as a

1
Cf. Judith N. Shklar, “Hegel™s Phenomenology,” Political Theory 1 (August 1973): 266“7.
Postscript: Morality, individualism, and law 341
historical objectivity, and we recognize and understand the place of
authority and practical reasoning in the operation of the law, the main-
tenance of stability alongside uncertainty and change, which the rule of
law achieves, ceases to be a mystery.
Understanding the concepts of authority, of historical objectivity,
and practical reasoning also makes it easier to distinguish the validity of
law from its desirability, and to see why the obligation to observe the
law rests on the conformity of its promulgation with established legal
procedures and not on its “justice” or “morality.” But that does not
mean that the rule of law requires all subjects and officers of the law to
approve of all valid laws. It does not even exclude the refusal to execute or
observe a valid law. What the rule of law does exclude is a claim to a
“right” to do so.
Citizens who find a law too iniquitous to observe may refuse to
comply with it without denying respect for the rule of law if they acknow-
ledge that they are violating the law and accept the consequences stipu-
lated by the law. Similarly, a judge who finds a law too iniquitous to
enforce may resign from the bench or register his disapproval in his
decision while strictly interpreting the relevant law. But he may not use
his power to rectify the law. In all such circumstances, two judgments
have to be made: Is this law not merely undesirable but iniquitous?
Is the legal system of which this law is part so iniquitous that destroying
it is preferable to enduring its injustice? In other words, the refusal to
enforce or comply with a valid law must be recognized to be a revolution-
ary act, justified by a profound moral conviction and not merely by a
difference of opinion about the desirability of a particular regulation. Of
course, a deliberate violation of the established law, if done openly, may
also be an act of protest that will not threaten the system as a whole but
may encourage some modification of it. But more serious refusals to
observe the law, whether by officers or citizens, must be recognized, as
Socrates argued, to threaten the prevailing legal system. In short, acknow-
ledging an obligation to observe or enforce the law does not exclude
decisions to refuse compliance, but it does require making a sharp dis-
tinction between mere dissent from a valid law and the judgment that it or
the system as a whole is iniquitous.

V
The individualist morality identified here enters more directly into the
deliberations of the legislator. If we do nothing more than prefer to be
ruled by a system of law “ as opposed to decrees or tribal customs “ we are
making a moral choice. If this preference is not merely a momentary
342 New foundations

whim like preferring chocolate ice cream, it implies a certain understand-
ing of oneself and is a moral preference. Even though the preference for
living under the rule of law may not have been chosen self-consciously the
understanding postulated by it may not be self-consciously recognized; as
is usually the case, a willingness to acknowledge the authority of a system
of law expresses a moral preference. Furthermore, because a system of
law may take different forms, the moral preference expressed by recog-
nizing the authority of a legal system may be further specified. It is
obvious enough that a moral preference is involved when law is seen as
an instrument for bringing into existence a certain pattern of life or
achieving a certain objective. That a system of law embodies a morality
just as much if it consists of non-instrumental rules has yet to be recog-
nized. To prefer to be ruled by a non-instrumental system of law means
that one wishes to be associated with others in one fashion and not in
another. It means that one does not want to be part of an enterprise for
producing wealth or health or happiness, but that one wants to be part of
an association that leaves its members free to choose their projects for
themselves. Such an association is what Michael Oakeshott calls a civil
association and which he distinguishes from an enterprise in which all the
members are enrolled in a single project. When, therefore, we say that we
wish to live under a non-instrumental system of law, we endow it with a
definite moral character.
What distinguishes the government of a civil association is not that it
does more or less, but that it conceives of its purpose as doing a certain
kind of thing. It is not an organization for either repressing or satisfying
self-interest, nor is it an arbitrator of conflicting claims or a dispenser of
benefits. A government of a civil association is a council of the whole
community, which has been given the authority to make and enforce rules
to which everyone is obliged to subscribe. The purpose of these rules is to
enable the members of the community to live and work together peace-
fully, while leaving each free to choose and pursue their own projects. Just
as it would be unthinkable for the umpire at a football match to join in the
playing, so it is out of character for this sort of government to take
control of enterprises, whether industrial or educational. Such a govern-
ment exercises control over private activities, but only in the manner of
making and enforcing the rules of the game.
As Oakeshott points out, no state is or can be a perfect civil association.
The law in all Western countries has been a mixture of instrumental and
non-instrumental rules. But that does not make it either unintelligible or
irrelevant to keep the distinction clear and to recognize the different
moral characters of different sorts of rules. Just how instrumental
and non-instrumental rules can be combined or how desirable different
Postscript: Morality, individualism, and law 343
mixtures may be are practical questions that cannot be answered in the
abstract. It can only be said that if people are eager to preserve the
character of a civil association, they will observe certain conditions when
deliberating about whether to change their laws.
If legislators wish to preserve the character of a civil association, they
will start with a strong presumption in favor of achieving any given
purpose by means of private efforts. They will recognize that it is essential
to do so in order to avoid the danger of converting the government into
a manager and thereby introducing two evils in one “ installing a manager
who is dangerously powerful as well as difficult to make either responsible
or efficient, and diminishing the effectiveness of the government as a
ruler. If, nevertheless, it is decided that the government should intervene
in a managerial fashion, i.e., if it is decided to adopt instrumental rules, a
civil association will take care to keep the managerial undertakings
sharply distinguished from the activities proper to the government as a
ruler.
But there is still another moral dimension to the rule of law that creates
considerable confusion about the relation between morality, individual-
ism, and law. A civil association presupposes that the activities of the state
do not exhaust communal life, that the members of a civil association
associate in a multitude of other ways, and that if they have lived together
for a long time they will have in common a “civility.” It is here that the
differences commonly ascribed to national character, to temperament,
climate, or race, become relevant. Civil associations may be noisy or
quiet, chaotic or orderly, businesslike or easy-going, excitable or stolid.
What is considered a minimum of cleanliness in one place may feel like a
hospital regime to another. A civil association may take great pains to
cultivate public gardens or hate the sight of them. It may relish large, fast
motorcars or ban them altogether. Its members may consider it indecent
to walk about the roads without a hat or decent to do so in a bikini.
Whether conduct is regarded as indecent or decent does not make it a
proper subject for legal regulation “ that is a separate question involving
considerations of another kind. What needs to be noticed here is that any
community of people who live together in harmony have come to agree on
what is decent and indecent, reasonable and unreasonable, offensive and
inoffensive, negligent and careful. And this agreement will be reflected in
all the laws, whether about abortion or compensation for injury or
parking fines. Standards of civility are involved in questions as apparently
technical as the location of an airport “ no amount of cost-benefit analysis
can annihilate the fact that different communities will assess costs and
benefits differently. Nor will talk of efficiency avoid the difficulty. What is
considered to be an “efficient” location for an airport will depend on
344 New foundations

whether “rural beauty” or “silence” is given precedence over speedy
travel, whether people are more concerned with getting to the remotest
corners of the world faster than anyone else or with being able to stay at
home in peace. When the members of a civil association come to deliber-
ate about their laws they cannot avoid considering standards of civility.
They may not do so explicitly; nevertheless, some standard of civility will
shape the way in which they make their laws. In this sense, too, law
cannot be divorced from morality.
The great difficulty in a civil association is to distinguish regulations
made to preserve standards of civility from the regulations appropriate
to an enterprise association like a theocracy. Much of the effort to dissoci-
ate law from morality arises from the misconception that any consider-
ation of civility is the same as a theocratic regulation and hence
inappropriate to an association of people who do not wish to be managed
into heaven. To see how considerations of civility need not turn a civil
association into a theocracy, it might help to consider the relation between
the rules of grammar and the canons recognized by critics and writers for
what constitutes good usage in a language. Neither the rules of grammar
nor the canons of good usage dictate what is to be said or in which style.
But whereas the rules of grammar describe the structure of the language
within which variations are possible, the standards laid down by critics
give a general idea of how to use the language with elegance, humor, irony,
or clarity. Or to put it another way, men speaking the same language have
in common not only a grammar, but also certain notions of what consti-
tutes good and bad usage. In the same way, a commitment to the freedom
of each individual “to live his own life in his own way,” which charac-
terizes a civil association, carries with it a view of what constitutes a
civilized life and what conditions have to be enforced generally to preserve
it. To try to enforce such conditions is as compatible with the variety
intrinsic to a free society as insisting on clarity in writing is with a variety
of form and content in what is written. A civil association allows for a
great variety of pursuits and enterprises and modes of conduct, but the
variety cannot be infinite. A community worthy of its name is bound to set
certain limits to the variety. It cannot avoid doing so without renouncing
civilization and becoming a bedlam. What matters is whether in setting
these limits the desire to preserve a civil association remains dominant.
How differently moral considerations may enter into deliberations on
law may be illustrated by considering possible responses to a question
about marriage laws. It may be thought necessary to make or amend such
laws because the cohabitation of a man and a woman is believed to have a
sacrosanct character and should neither take place nor be dissolved
without due recognition of this character. This way of understanding
Postscript: Morality, individualism, and law 345
marriage is very likely to be present in a theocracy. But it might also be
part of the civility of a civil association. This is not, however, the only
conception of marriage compatible with a civil association.
Marriage might be understood in many other ways. It might be con-
sidered a contract, much like any other contract, which the government
will protect if certain conditions are observed, or allow to be broken if
certain conditions are not met. Or the cohabitation of a man and a
woman might be thought of as an act of friendship that is of no concern
to anyone other than the two persons involved. If that were the prevailing
view, there might come to be great confusion about who is responsible for
looking after children, and to remedy that difficulty it might be suggested
that it would be desirable to set up public orphanages or other public
institutions for bringing up children.
But if that suggestion were accepted, the civil association would be in
danger of adulterating its character by turning itself into a nursemaid as
well as a rule-maker. And in order to avoid doing so, it might be decided
to regulate the conditions of cohabitation by some sort of marriage laws,
so as to make parents responsible for their children. In such a case, laws
regulating the conditions of cohabitation, laws that might resemble those
in a theocracy, will have been inspired by a concern for personal freedom
and not by a desire to impose any particular pattern of conduct. More-
over, even if it were decided that no such law should be adopted, it would
not follow that morality had been excluded from the domain of law. That
decision, too, would be a moral decision. Considerations other than
moral, such as considerations about the cost of enforcement, may have
entered into the deliberation. But insofar as the deliberation was set in
motion and concluded by moral ideas “ ideas about the kind of associ-

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