Is state power a Swiss army knife or a gun?

This is another of my vague musings on legal metaphors, but it is different in two ways. First, it is more about the metaphors of academics, activists, and others who criticise the law than about the metaphors of judges and lawyers. Second, it is not a metaphor in actual use, so much as my metaphorical representation of a common pattern of assumptions and their reversal.

So, I think there’s a common perception that state power is a bit like a Swiss army knife. It’s a complex tool that can be used in a variety way to achieve a variety of ends. Usually this assumption is implicit, but occasionally it bubbles to the surface. For instance, Nedelsky argues that the law structures property relations, so it’s quite capable of being used to structure other kinds of relations too. I think there’s a second implication there: the idea that state power, like the screwdriver on your Swiss army knife, can undo the work it does. The law can screw something together, and it can unscrew it if it doesn’t work.

I doubt state power is like a Swiss army knife. I think it’s more like a gun. It does one thing extremely well, and that one thing is exert force.

You can use a gun to threaten other people to do a variety of things for you, but it doesn’t mean that your gun is a Swiss army knife. It just means that you can get the people with Swiss army knives to do what you want.

Now, patterns of threats can be ornate. For instance, you could threaten some people who are hoarding goods to share what they have with some other people. That doesn’t mean your gun can both threaten bad people and reward good people. It just means that you’re threatening some people to reward some other ones. Maybe that’s justified, maybe it’s not; but, either way, all your gun does is threaten and shoot. Exactly same holds for state power. The only difference is that, here, the patterns of behaviour flowing from the threats are so ornate it becomes easy to forget the initial threat exists.

If state power is more like a gun than a Swiss army knife this entails a couple of things. First, unlike the screwdriver, it’s not reversible. Just because you can shoot someone doesn’t mean that you can unshoot them, and just because you can threaten someone doesn’t mean that you can unthreaten them. Sure, you can stop threatening them, but that’s not the same thing as never having threatened them; and, let’s be honest, unless you get rid of the gun you can’t even do that. Putting the gun down doesn’t mean that you’re not threatening someone if they know you can pick it up whenever you like. Similarly, state power doesn’t stop being coercive just because it’s not coercing someone right now.

The second of entailment of state power being a gun and not a Swiss army knife is that if a problem is due to the very existence of coercion, then the state cannot help. It can stop some people coercing some other people, but only by, directly or indirectly, coercing a third group of people to intervene. And because coerced people, above all, want to please the coercer, this never works. The attention of these people, call them ‘coerced liberators’, isn’t on genuinely freeing those other people from coercion, it’s on making sure that whoever is coercing them is happy.

We see this in the move to ‘free markets’. Whether or not it is genuinely desirable, one thing we never get is genuinely free markets. Instead, we get powerful multinational cartels doing very well, targets, procedures, and ultimately more state involvement. The coercive power of the state is concealed, but not lost. Similarly, in mental health law, we get ever more ornate procedural checks, but basically unchanged conditions of detention. The language of ’empowerment’ gets ever more strident, yet lived freedom disappears. The gun of state power cannot undo itself. All it can do is threaten and shoot.

Buffy the Vampire Slayer versus Rationalism in Politics

In another post I was a bit critical of one of Micheal Oakeshott’s essays, so now I’m going pay him the highest compliment I can. This post compares his most famous work to an episode of Buffy the Vampire Slayer. The essay is Rationalism in Politics and the Buffy episode is Gingerbread.

SPOILER WARNING: this post discusses old TV and older political philosophy. Consider yourself warned.

Gingerbread starts routinely, with Buffy hunting vampires in a graveyard. She’s surprised by her mother, Joyce. Joyce has recently discovered that her teenage daughter is the vampire slayer, and feels she ought to take an interest. She’s brought a themos and sandwiches, and hopes that fighting the undead is ‘something we could share’. A vampire attacks, and they get separated in the melee. Alone, Joyce walks to a nearby playground and makes a grisly discovery. Two young children, a boy and a girl, lay dead, each marked with an occult symbol.

Buffy quickly rejoins Joyce, and the rest of the episode is structured around their different responses to this grim find. In a characteristic Buffy reversal, Buffy is the model of practical wisdom, and Joyce the model of a certain sort of naivete.

Buffy is upset, but her response is as simple and pointed as a stake. She’s going to find whoever did this, and make them stop before they do it again. It’s what she does. By this point, she’s been doing it for years.

Joyce is even more upset than Buffy, and she, too, wants to stop things like this happening. Unlike her daughter, however, she is new to all this. She hasn’t spent years fighting monsters, winning, then fighting new monsters. So her idea of ‘stopping things like this happening’ is different. She wants to stop all occult badness happening in the town, forever; and that takes politics, of a certain type. She calls a town hall meeting, creates a pressure group, and even prints lapel badges. Soon, all the adults in the town are fervent members of a new crusade.

gingerbread094The face of rationalism in politics?

I want to suggest that Joyce, in this episode, is much like the character of ‘the rationalist’ in Oakeshott’s essay. Oakeshott’s account of this character is based on an old distinction: the one between technical and practical knowledge. Technical knowledge is anything that ‘can be learned from a book’, but practical knowledge ‘exists only in practice’. It is all those things not reducible to book learning. For instance, I have training guides written by world-class rock climbers, but memorising their contents would not allow me to climb like the authors, even if I did have the necessary physical fitness.

For Oakeshott, rationalism is the focus on technical knowledge to the exclusion of all else. It is the the assertion that ‘practical knowledge is not knowledge at all’. In Gingerbread, there is an even better example of this than Joyce. Sheila, Willow’s mother, almost never sees her daughter; and is, perhaps significantly, an academic. This allows her to be played as a caricature of the rationalist mother: one with technical, but no practical, knowledge of motherhood.

On finding Willow has been in dabbling in witchcraft, Sheila says ‘identification with mythical icons is perfectly typical of your age group. It’s a classic adolescent response to the pressures of incipient adulthood’. Willow lets her know she’s missing the point, ‘mom, I’m not an age group. I’m me. Willow group’. Something is happening here that is useful for understanding Oakeshott’s essay. Willow isn’t upset that her mother understands her through the lens of half-arsed social theory. She’s upset that this is the only way her mother understands her. Similarly, Oakeshott isn’t opposed to technical knowledge, he is just suspicious of using it to the exclusion of practical knowledge.

For Oakeshott, rationalism leads to ‘the politics of the book’. The development of practical political skill is neglected for a plausible but shallow ‘expertise’ (a modern example would be Westminster’s ‘special political advisors’ appointed almost straight out of Oxford). It’s not just the practical skills of politics itself that are neglected, though. The rationalist politician is also unable to see the other areas of practical knowledge that their politics should be responsive to. Politics becomes entirely about using universal reason to solve technical problems. This leads to a certain sort of perfectionism, because conducting politics in this manner assumes that there is always, in principle, a solution. We see this in Buffy. Joyce says, ‘Evil pops up, you undo it, and that’s great! But is Sunnydale getting any better? Are they running out of vampires?’ The unspoken assumption here is that there is an option that will get rid of all the vampires for once and for all.

Technical knowledge is linguistic, but practical knowledge is inarticulate. This means technical ‘knowledge’, even when it is wrong, tends to be more persuasive than practical knowledge, which must rely on appeals to authority. We see this in Buffy’s response to Joyce’s challenge about the town not getting any better: ‘maybe I don’t have a plan’. Later, when she’s discussing her mother’s position with Angel, he, perhaps fittingly for someone seen with Sartre’s Nausea earlier in the season, makes a virtue of this lack of a grand narrative. He denies that they fight vampires to win any complete victory. ‘We never will. That’s not why we fight. We do it because there’s things worth fighting for’.

This draws attention to a difference in the reasons for action between the two camps. Joyce’s ultimate goals are impersonal.  For instance, she calls a town hall meeting in order to mobilise people in order to rid Sunnydale of the occult. That ultimate end, getting rid of the occult, is grounded in a vision of how the town should be (‘this is not a good town’, she says), and that vision of the town is not about her personally.

Buffy’s ultimate goals, unlike Joyce’s, are personal: not in the sense of satisfying desires, for Buffy wants a normal life, but in the sense of fulfilling a role. Buffy conducts research, so she can kill the vampires, and she kills the vampires because she is the slayer, and that is what the slayer does. Oakeshott was writing before the modern philosophy of action really blossomed, but I would suggest that it is characteristic of the rationalist in politics to be deaf to reasons of this kind. Ignoring practical knowledge means that they also ignore the practical identities that practical knowledge creates. If you work as a gardener, a postman, or a nurse for long enough, then it shapes the kind of person that you are in ways that are not really under your control and are not easily reversible. This creates reasons for action that are neither universal nor directly grounded in personal desire. A true gardener might prune an apple tree in winter even if they are moving house and will not see any of the fruit; not so much to benefit the next occupant, but because it is, to them, simply the right thing to do. The rationalist, because they do not recognise practical knowledge, fails to recognise practical identity, and so fails to recognise that there is a wide class of reasons for action that are neither universal nor straightforwardly about desire satisfaction.

Indeed over-simplification is a general hallmark of the rationalist. In Gingerbread, Joyce has the occult books confiscated from the library. After all, the occult is the problem she is trying to fix. That, though, makes it harder for Buffy and her friends  to research the specific occult danger they face now. If Joyce had practical experience of fighting the occult she would have known that.

Where does unfettered rationalism lead? Gingerbread’s answer is clear. As the episode unfolds, it turns out that there were no dead children. They were a vision caused by a demon, who is now manipulating the town through Joyce. Buffy, with her routines of research and attention to the particular case, works this out. She becomes puzzled that no-one knows the children’s names or who their families were. Joyce, with her grand plan, doesn’t pay much attention to the details of this case, and so is easily manipulated by the very evil she thinks she is fighting. Oakeshott would, I think, approve of the moral.

Finally, because it’s a common problem, a note on Oakeshott’s conservatism. It is both true and tends to be misleading to call Oakeshott a ‘conservative’. It is true, because he regretted the growth of rationalism in politics, and is profoundly dubious of state planning. It is misleading, because he had no more time for the rationalism of the right than for that of the left. He could see that big, centralised plans to ‘shrink the state’ were also rationalist (‘plans to end planning’), so I doubt that he would have any more patience with the current era of planned, centrally administered, ‘markets’ in healthcare and education than he had for the communist regimes of his own time. In character, he is far closer to the Daoist Zhuangzi, whose influence can be seen throughout the essay, than he is to Hayek, who he dismisses in a couple of sentences.

Buffy, too, has her Daoist moments, but that’s a matter for another day…

 

Play this game. Do not play this game.

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.