So my first proper post on this blog is a long comment on an a minor detail of a neglected essay from 1983. Oh, how the readers will come flooding in.
The essay is Michael Oakeshott’s The Rule of Law, which appears in the collection ‘On History’. It’s both brilliant and frustrating.
It’s brilliant because it applies one of Oakeshott’s central insights, his idea of a ‘mode’, to the rule of law in a way that is revealing and provocative. In the essay, he talks about ‘modes of association’. Basically, this is the idea that relationships between people simultaneously occur under multiple descriptions at once. I might be both your friend and your business partner; and if I am, for example, your pupil, then the word ‘pupil’ picks out a multitude of different modes of relationship. For instance, it might be a legal relationship, a commercial relationship, and an educational relationship. Each of these relationships can be specified in their own terms; but, importantly, the person in each of these ‘modes’ is an abstraction. When we talk about Ludwig as an educator, then we talk about him in the terms of that mode of relationship. It is not the whole person, the incredibly complicated being of Ludwig that we talk about. It is just those parts relevant to his position in a particular relationship, ‘educator’. Similarly, when we talk about Ludwig as the sole proprietor of Beetle Educational Solutions, then we refer to an abstraction: his position in a business relationship, not to the whole Ludwig.
The central idea of The Rule of Law is that the phrase ‘rule of law’ refers to a particular mode of relationship. Of course, this doesn’t mean that all legal actions, or all laws, occur only in this mode. Just as Ludwig might be both an educator and have a business relationship with any particular pupil, real legal relationships will consist of multiple modes. It does, however, mean relationships in terms of the rule of law have their own distinct character.
There is a lot that is brilliant in the details of how Oakeshott examines law’s distinct character. In particular, he contrasts it with the ‘transactional’ mode of relationship, in which people seek to satisfy their various interests. In this mode, ‘there is only Purpose, Plan, Policy and Power’. To confuse this with the rule of law, in which relationships are characterised by reference to rules of conduct, is not helpful. This point is probably more relevant than ever. The uncritical use of the transactional mode, of individuals ‘autonomously’ pursuing their own desires or ‘values’, has become endemic in some areas of legal scholarship. Reading Oakeshott is a handy reminder that even if you can talk about the law in this way, you are nevertheless characterising a legal relationship in the mode of business relationship, with all the confusion that can entail. It is not a coincidence that in medical law this way of talking really took off under Thatcherism, as Duncan Wilson points out (link).
The essay is, however, also frustrating. Disappointingly, when Oakeshott is so often dazzlingly fluent, the jargon is sometimes needlessly obscure. For instance, he talks about ‘adverbial conditions’ on actions, without real explanation. By this he means that the rule of law does not oblige you to do any particular thing, but it does impose conditions on how you do the things that you choose to do. I’m not sure anyway that distinction is sustainable, but the way in which he makes the point is particularly unhelpful.
Beyond jargon, Oakeshott makes some incredibly bold claims without much argumentation. For instance, the rule of law ‘is concerned neither with the motives nor with the intentions of actions’. How then do central legal doctrines such as mens rea (link) or intention to be legally bound (link) link to the rule of law? Are they occurring in a different mode because they are about intentions? If so, why (and what mode)? Oakeshott doesn’t explain. Possibly he means only that the rule of law is unconcerned about whether you intend to act lawfully or not; but even that is wrong with regard to intention to be legally bound. Nor does he explain why it must be characteristic of the rule of law to ignore intention towards the law itself.
Another unexplained ambiguity gives this post its title. He discusses games. This might seem odd, but mid 20th century Anglo-American philosophy perpetually discusses games (see Mary Midgley’s ‘The Game Game’ for a wonderful critique). In this section, Oakeshott says:
‘The expression ‘fair play’ does not invoke considerations of ‘justice’; it means neither more nor less than to play this game conscientiously according to its authentic rules. And of course such rules cannot include a rule that the game should or should not be played’
Oakeshott doesn’t say why the rules of a game cannot include a rule that the game should or should not be played. Perhaps it is because he thinks that such rules will be either empty or paradoxical.
Imagine a simple game in which I flip a coin, shout ‘heads’ or ‘tails’, then reveal the coin to see whether I called it right. This game has rules: for instance, call ‘heads’ or ‘tails’ before you look at the coin. If I include the rule ‘play this game’ then it adds nothing. If I am playing the game, then it tells me to do something I am already doing. If I am not playing the game, then I don’t care about its rules. The rule is empty. If, in contrast, I add the rule ‘do not play this game’, paradox results. If I play the game, I have broken one of its rules, so I am no longer properly playing it. If I don’t play the game because of this rule, then insofar as I don’t play the game I am playing it. It is no wonder Oakeshott was sceptical.
His scepticism, though, doesn’t extend to the case of law. According to Oakeshott, it gets to dictate when you ‘play’ it: ‘the jurisdiction of the law is itself a matter of law’. He (rightly) points out that this is not a paradox, it is ‘a truism’. But that misses the point. The problem with an implicit law saying ‘recognise the law’ is not that is paradoxical, like a rule saying ‘don’t play this game’, but that it is empty, like a rule saying ‘play this game’.
It’s been a few years since I read Hart’s ‘Concept of Law’, but Oakeshott’s account is not a million miles from his. Hart, however, avoids this sort of emptiness by stipulating that the ultimate ‘rule of recognition’ can only talked about externally to the system of law itself. It’s a social rule, not a legal one. By analogy, it’s empty to have ‘play this game’ as a rule of football, but it is not empty for a school to have the rule ‘play football on Friday’. When it comes to law, though, Oakeshott wants ‘play football on Friday’ to be a rule of football.
This leaves a puzzle. Oakeshott was a subtle thinker and almost certainly familiar with Hart. And, as we’ve seen, he makes a similar point himself when talking about games. So why does he insist that law controls its own jurisdiction? This is especially puzzling when, as he acknowledges, the sheer austerity of his account threatens to reduce the rule of law to ‘a logician’s dream’, incapable of intersecting with human life. Is it not better to acknowledge that the legal mode is entirely parasitic upon other modes of relationship? I don’t think that such parasitism, in itself, necessarily makes the rule of law any less valuable; but I get the impression that Oakeshott does think this. He is strongly opposed to the idea that any one mode is foundational, that all the other modes come from it. I would agree, but that commitment doesn’t entail rejecting the idea that some modes, even if important, are secondary to others.
Oakeshott’s essay has not received much attention, far less than you would expect given the author’s reputation. Despite all the frustrations discussed here, this is a real shame. It is challenging in a way that only truly brilliant pieces can be, and has depths that I have not touched on. I highly recommend it to anyone with enough interest to have got to the end of this post.
PS: Do not read this post.