Real beauty is not to be conformed to conventional beauty standards, but it’s to one’s inner self - Your inner self is the person you are inside. Real beauty is on the inside which is more important than one’s outward appearance. One looks good with external looks, but is known better in terms of internal features of personality which is based on one’s emotional, intellectual and spiritual qualities. Inner beauty is something on which a person needs to pay attention, because, as he gets on with his life, all deeds and actions are drawn from that inner beauty. Hence, theneed is to acknowledge and improve inner beauty to lead life successfully.
These verses of Kahlil Gibran, “Beauty is not in the face; beauty is a light in the heart”, are so lovely and inspirational to convey great meaning to us. They signify the importance of inner beauty leading one to focus attention on developing and strengthening inner beauty. It is your inner beauty that has a lot to do with what you offer the world - having a direct impact on society and life you go about. In this way, one should not discourage oneself if he or she is not genetically inherited in a way to match a perfect appearance. It must be noted that the physical features of one’s face and body are determined by genetics in that there is no real contribution of a person, but what contributes significantly is what you have worth offering others. Thus, feeling your best is more important than looking physically beautiful and attractive so that you can successfully offer your talents, intelligence and knowledge by performing an act of kindness and compassion, gracefulness and empathy which is revealed by nothing else but yourinner beauty.
Conforming to so-called beauty standards is nothing more than leading oneself towards facing disappointments or discontents or displeasures, which creates negativity, hinders success and does not allow one to make one’s talent shine. It must also be noted that if we believe in such beauty standards, in other words, we are teaching ourselves to hate our bodies, set us apart from others leading a dissatisfying life, whereas it is important to believe that every person has talents and talents must be discovered so that we can find them as strengths to live life satisfactorily.
Directing ourselves to consider the importance of inner beauty, we can discontinue forming thoughts of perfection. We begin to accept as we are while improving our inner qualities that are far better than facial attractiveness. Instead of giving preference to how we look with our skin color, shape of our eyebrows, eyes, nose or lips, we focus our attention to improve our personality in terms of inner beauty – which is the real beauty – beauty of the heart that shines within us. It provides us perceptual experience and pleasure and satisfaction inspiring us to perform good deeds and actions.
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Article Written By FAREED SIDDIQUI
I am an Individual Member of Institute of Management Consultants of India. I am a Professional with a high creative capability based on Business, Management, Financial Accounting, Management Accounting, Finance and Management Consulting Field. I impart part time training and development programs. I write professional articles on business & management, business English and Software Engineering.
Last updated on 30-07-2016 5K 1
H.L.A. Hart’s legal positivism displaces the authority of institutions and emphasizes the independence of personal moral judgment. While such a position has an obvious appeal, we should not fail to acknowledge the extent to which values are articulated within established practices. In this essay, civility and law are offered as examples of practices that embody distinctive values and can properly be understood only by reference to such values. It is suggested that legal positivism is driven by a moral metaphysic wherein abstractly conceived principles confront neutrally described facts. But values cannot, without distortion, be understood in abstraction from the practices and forms of association within which they find expression. The refusal to recognize this fact fosters moral skepticism rather than individual moral responsibility.
This Legality therefore is not able to set thee free from thy Burden. No man was as yet ever rid of his Burden by him; no, nor ever is like to be: ye cannot be justified by the Works of the Law.
John Bunyan, The Pilgrim’s Progress
Law is not morality; do not let it supplant morality.
H.L.A. Hart, “Positivism and the Separation of Law and Morals”
How but in custom and in ceremony
Are innocence and beauty born?
W.B. Yeats, “A Prayer for my Daughter”
For John Bunyan, Legality is “the Son of the Bond-woman.” We are told that “she with her children are in bondage.” Nor is Legality the only offspring of that parent, for Legality’s son is Civility, who “is but an hypocrite.” Bunyan’s view (in the words of E.P.Thompson) “displaced the authority of institutions and of received worldly wisdom with that of the individual’s inner light.”2
A cooler and more cerebral displacement of authority occurs in the work of H.L.A. Hart. He too warns us of a bondage into which we can very easily fall when, for example, we are misled by the “sinister use of the slogan ‘law is law.’” And he responds by reminding us that “Law is not morality; do not let it supplant morality.”3
Such assertions of individual moral integrity in the face of power and conformity have their appeal for all of us. But they also have their problems, trading as they often do upon a rather flat and unqualified distinction between conventional opinion and transcendent moral truth, or worldly wisdom and the inner light. It is doubtless true that popularly held moral views can often be unsound, while the condemned and persecuted can be in the right; and only the grossest confusion could lead one to infer the immorality of an act from the fact that it is generally judged to be immoral. Nevertheless, the relationship between values and practices is considerably more complex than these acknowledged truths might lead us to believe. The social critic’s values must at some point resonate with more familiar opinions if they are to count as moral standards in the first place. Even if transcendent truths are known they must be expressed in terms that we can understand and which connect with at least some of our existing moral beliefs. The depth and subtlety of one’s moral perceptions reflects the language of one’s community, so that the privacy of the moral conscience can exist only in the public medium of an inherited array of evaluative ideas. In evil times, the decay of customs and habits can diminish and eventually extinguish the spirit, for our most intimate sentiments can evolve and be sustained only in the context of structured social intercourse.4
Although Hart encourages us to adopt a cool and detached view of law, it might be an error to see this as the principal object of his theory. Perhaps the displacement of law’s authority is an incidental by-product of a theory aimed at other goals, rather than its central aim. For Hart’s legal positivism can plausibly be viewed as an elegant proposed solution to a distinct set of problems that arise quite independently of any moral concerns or aspirations. We assume, for example, that positive laws are created by human acts; but we also assume that human acts can create law only when legally authorized so to do. How then, on these assumptions, are we to avoid either a circle or an infinite regress? Furthermore, lawyers disagree about the law even when the rules stated in statutes and cases are not in doubt. It is natural, then, for us to ask what law must be that it can, in this way, extend beyond the statutes and cases upon which it otherwise seems to depend, while simultaneously authorizing its own creation. One does not need any particular ethical motivation to find these problems troubling.5 And Hart offered a powerful yet strikingly simple approach to their resolution.
However, even if Hart’s theory requires no ethical project to motivate it, it may nevertheless benefit from its tendency to fit with, or reinforce, such a project. The sense that Hart’s reflections fit seamlessly with an appealing ethical outlook can appear to add weight and substance to arguments that might otherwise seem considerably less than compelling. The lofty and independent spirit of this outlook, combined with the clarity and nobility of Hart’s writing, help to render the associated theory of law profoundly attractive and doubtless account for a part of its enduring appeal. At times, Hart’s analysis seems to lead us to disturbing conclusions, as when he informs us that, on certain fundamental constitutional and jurisdictional questions, the judges must get their authority accepted after the event and “all that succeeds is success.”6 But we are deterred from rejection of a theory that produces such anomalies by our sense that alternative theories may pose not merely intellectual but also moral dangers. The implicit message is that we must keep to the simple understanding of law as a system of rules, even if that understanding seems to discredit our normal assumptions. Indeed, the very difficulty of understanding our ordinary habits of legal thought in terms of some such plain and simple picture leads us to ask whether those habits may not be facets of a pernicious ideology, itself the offspring of the Bond-woman.
Thus, when deliberating upon the correct decision in a problematic case, we might think of the law as containing, in principle, a determinate answer that is nevertheless difficult to ascertain. Or, reflecting upon the tradition of legal thought, we might remind ourselves that, in addition to the deliberately enacted rules of lex, law also encompasses the broader notion of ius, an idea which both etymologically and in substance is tied to justice. But, when we pursue these thoughts, we immediately face the difficulty of trying to achieve a clear and structured understanding of ius as a body of law that goes beyond the totality of enacted rules; or of a law that is determinate but not straightforwardly ascertainable. The measured skepticism of Hart’s view seems implicitly to suggest that the murkiness here encountered does not spring from ideas that are deep though imperfectly understood, but rather is an obscuring fog that serves potentially ignoble purposes. As such, it will be dispelled by clear thought, as morning mist is dispelled by the rising sun.
If an ethical project is pursued in Hart’s work, it is pursued not simply in the answers that he proposes to his favored questions, but also through the questions that he constructs. His questions were proposed as an enlightening replacement for the blank general question “what is law?” that had dominated discussion prior to his work. That blank general question generated a sense of mystery regarding the nature of law, a mystery that encouraged reverence in some (law as “a brooding omnipresence in the sky”) and skeptical conceptual revision in others.7 Hart replaced the general question with a proposed separation between three allegedly distinct issues, concerning (i) the general characteristics that will be exhibited by any legal system; (ii) the criteria of legal validity obtaining within particular legal systems; and (iii) moral questions concerning the law’s justice and moral legitimacy. This separation between questions seemed to dispel the sense of mystery, and for that very reason appeared to be a great advance. But (as we shall see) it also obscured the problem from which the mystery sprang. Jurisprudence has been suffering an identity crisis ever since.
In the period when Hart was at his most creative, Oxonian philosophy was very wedded to the idea that grand philosophical systems should be eschewed, and the great philosophical problems could be dissolved by a little careful disentangling of ideas. This background gave Hart’s readers an expectation that sound analysis would lead, not to dramatic and exciting results, but to a sober realization that the seemingly profound difficulties of the philosophy of law were largely illusory. Once appropriate questions replaced misguided questions (it was assumed) the problems would in all probability disappear.
It is true that a few distinctions and a revised set of questions may rid us of our ghosts for a while. But the ghosts are unlikely to have departed forever, and will eventually come back to trouble us. In the half-century since Hart wrote his major works, a good deal of uncanny activity has disrupted the outwardly confident surface of legal positivism. In response positivists have adopted a strategy of concession and avoidance. Tacitly acknowledging the soundness of some of the criticisms of Hart’s legal positivism, they have constructed a modified version of that position: a version which concedes some ground but insists that the core claims of legal positivism remain untouched by the concession. Rejecting such stratagems, Matthew Kramer continues staunchly to defend Hart’s position in its unqualified original form.8 But, in relation to some of the theses that Hart espoused, Kramer has become a lonely figure on a landscape from which many erstwhile comrades have fled. They see themselves, not as cravenly abandoning the cause for which Hart’s banner was originally raised, but as making a carefully calculated and strategic withdrawal in the hopes of better defending the positions that they consider to be of real value.9 The legal positivism that results is complex, and may strike many readers as possessing a somewhat Heath Robinson character. But exponents of the position see it as subtle, nuanced, and hedged in with qualifications that render it invulnerable rather than insignificant. It is this situation that Finnis doubtless has in mind when he says that the question of what is to be understood by “legal positivism,” and whether any truth is conveyed by it, has become “a gloomy jungle into which it is best never to stray.”10
It is worth noting, at this point, that Hart’s account of the philosophical problem of law’s nature is some respects quite deficient. In the opening chapter of The Concept of Law we are told that, underlying the debate concerning law’s nature, are three recurring issues. One of these concerns the nature of rules and the question of how far law is a matter of rules. The other two issues invite us to reflect on how law resembles but also differs from (on the one hand) morality, and (on the other hand) orders backed by threats. None of this is flatly incorrect. But, when addressed to someone who has not yet grasped the problem, it is most uninformative and potentially misleading. Saying how one thing resembles but also differs from two other things is not, in itself, a philosophical enterprise. We discover the distinctively philosophical aspect of this enterprise only when we learn something of the puzzling features of the entities being compared. Hart’s account has given unmerited plausibility to the idea that jurisprudential inquiry into law’s nature is an attempt to construct “a typology of institutions.”11 But, while resolving a philosophical problem may sometimes require the construction of typologies, philosophy is not au fond in the business of constructing typologies. Philosophy begins with problems, and the general question “how does this differ from that?” is not, in itself, a philosophical problem (even though philosophical problems can sometimes be stated in that form).12
The first step towards understanding the problems of jurisprudence is to appreciate that the primary use of the notion of “law” is not to classify or label a distinctive type of social institution: rather, its primary use is within the practices and the body of thought making up the institution in question. Thus, legislators do not issue commands or orders, or lay down rules: they enact laws; and the status of their enactments as law is thought of (by the legislators and by citizens, although not by most legal theorists) as important to the moral claim13 that the enactments are thought to have upon the conduct of the citizen. Judges do not decide cases by reference to the standards that they think are just, or a good idea, or by reference to the rules that they and their colleagues on the bench happen (for whatever reason) to accept. They decide cases by reference to the law, and they regard the status of certain rules as law as being central to the justification of their decisions. Similarly, citizens sometimes invoke what they believe to be their legal rights, and remind others of their legal duties. Contrary to the approach that most legal theorists might favor, the status of the relevant standards as law is viewed by the citizen as giving such appeals a peremptory prescriptive force, when appeals to the individual’s opinion of the requirements of justice or moral rectitude would lack such force. Admittedly, this peremptory prescriptive force may, in the minds of many citizens, be connected with the fact that laws are often backed by sanctions: but the relevance of this need not lie in the threat of a consequent evil befalling those who disobey, so much as in the reminder that the proscribed conduct is condemned by the community (and not just by the right-invoking individual) and viewed as sufficiently serious to merit a sanction.
The task of jurisprudence is to try to make sense of these various references to the idea of law. For it is at first difficult to see how anything could coherently exhibit the various properties that are explicitly or implicitly ascribed to law within such references. Laws, let us recall, are assumed to be the products of human decision, yet we also assume that human acts and decisions can create law only when they are legally authorized so to do. Furthermore, lawyers often present themselves as disagreeing about the content of the law even though they are equally familiar with all of the authoritative materials. So (on the concept of law that seems to be presupposed by the lawyers) law somehow authorizes its own creation and radiates beyond the statutes and cases upon which it nevertheless depends for its content. Finally, this mysterious abstract object called “law” (which seems to give rise to itself, and to hover uncertainly above the ascertainable bases of legal knowledge) is assumed to possess a special justificatory force which is independent of its justice or wisdom, and dependent solely upon its quality of being law.
We should notice that, if what I have said so far is correct, the concept of law functions in a way that is only possible to the extent that the concept is a living part of our shared moral fabric. We transform ourselves, and our moral landscape, through the structures of thought and practice that we collectively create, and the idea of law is a part of that complex process of self-transformation. There is a temptation for legal theorists to think of themselves as concerned with a relatively technical, professional discourse in which the ordinary citizens are not participants, and which is related to other domains of discourse in complex ways that depend upon the distinctness of different spheres.14 But there would be little point in legislators presenting their enactments as laws (rather than general commands or decrees or the threat of sanctions) if citizens and judges did not attach practical importance to the status of a rule as a law. Similarly, if no such practical importance was attached to the status of rules as law, there would be little point in judges offering (to the litigants, and the citizens generally) justifications for their decisions that ascribed decisive importance to the legal status of the rules applied. Nor could law so effectively order conduct if it failed to become part of the framework endorsed by citizens and applied and invoked in their dealings one with another. The concept of law that we find embodied in our legal and political institutions, therefore, appears to be one that depends upon an interlocking web of practical understandings. This is why, in seeking to understand the idea of law, we must explore the full resources of our culture (including such things as art, literature, and theology) and not simply the technical discourse of lawyers.
At least for a few moments, let us avoid becoming entranced by the romantic vision of our own moral purity standing strong against a misguided and hostile world. Let us assume, at least provisionally, that the world contains a goodly number of other men and women with perceptions and motivations not significantly worse than our own. On that basis let us see whether, simply by considering the practice and opinions established and maintained by such folk, we may learn of values that we did not formerly comprehend.15
Consider in the first place, not legality or morality, but (as Bunyan tells us) “legality’s son”: civility. The concept of civility is an interesting one, having connections with standards of good manners, but also with the ideas of “civil society” and “civil association,” and ultimately with civilization itself. But let us begin where perhaps Bunyan’s reflections began and ended: with the ordinary rules of polite behavior, requiring (for example) conventional modes of greeting and the exchange of trivial pleasantries. In certain moods, and certain contexts, rules such as these can strike us as external impositions upon the free expression of our opinions and feelings. On such occasions, we are disgusted by the acquaintance who presents a friendly demeanor towards us, even though his known hostile actions are testimony to a very unfriendly attitude. Or we are frustrated by the way in which so many of our conversations seem to be converted into a meaningless game of tennis, where all participants are careful to avoid touching on any matters of weight or importance, simply batting the ball of conversation back and forth to no apparent purpose. In such moods, we see the social world as one where the real, inner person is constantly suppressed if not wholly extinguished; where people can live their lives together and yet be forever alone and remote; and where standards of politeness enable treachery to work effectively behind an empty, smiling mask. Thus, we may conclude with Bunyan that civility is “an hypocrite” or worse.
Knowledge, experience and reflection, however, may serve to alter our view. When dealing with those whom we dislike, and who fully reciprocate our feelings, we may learn to distinguish between the smiling mask of treachery, which aims to deceive, and the pragmatic acknowledgment of the needs of daily intercourse, which does not. For regular interaction and cooperation would be intolerable if it involved or invited the constant, superfluous, exhausting and somewhat absurd expression of one’s feelings: far better the neutral if somewhat opaque exchange of common courtesy. With still greater wisdom we may observe more carefully the courtesy of others, and thereby discern, not a mastery of empty drawing-room skills, but a willingness in the courteous to set personal feelings on one side, so as not to burden companions with their moods; or a facility in creating subtle conversational spaces within which others may disclose their personal sorrows and triumphs if they wish, while not depriving them of the opportunity easily to retreat into the privacy of formal behavior should that be their preference. Civility, we begin to realize, exists not as a mask for hypocrites, but so that all of us (complex, private and difficult creatures that we are) can live together tolerably in a social medium that respects the individuality of each precisely by discouraging the constant public manifestation of idiosyncrasy. And, by our regular compliance with the requirements of civility, our natures may become more social without loss of individuality, and our perceptions of the needs and desires of others may become more acute. In short, we begin to see the point and value of civility, and to distinguish that point from its potential corruptions.
It is implausible to suggest that the values we may find in the practice of civility could be understood in complete abstraction from the practice, or subsumed under some set of highly general principles. For the values are not simply realized by the practice but articulated and understood through the practice. The practice comes first and its significance is grasped (never fully and always imperfectly) subsequently. The person whose civility evinces a quickness of perception for the feelings of others, and a powerful disposition to treat those others with delicacy and respect, has not hit upon civility as a convenient way in which the relevant concerns can be made effective. Civility, rather, reveals to us possibilities that we would not otherwise see. The mastery of civility is therefore akin to competence in a language that might ground one’s subtlety of thought, or the instrumental proficiency that opens up a deeper appreciation of a musical score. Nor is the meaning of civility fully detachable from its practice, any more than the meaning of “Four Last Songs” is detachable from its performance.
Not only can we come to understand the value of civility only by engagement in its practice, and by careful observation of its more expert practitioners, but civility is only possible where its practices are shared and understood. Here I do not refer to what we might think of as civility’s purely conventional aspects (e.g., whether we take our hats off in certain situations, or put them on) but rather the way in which its conventions can function as a subtle medium of communication that facilitates both privacy and disclosure, respect for independence and yet neighborly concern. I greet you and ask after your well-being. You can reply with the conventional “Very well, thank you.” Alternatively, you may indicate a possible willingness to take my enquiry more seriously: you say, perhaps, “Well, life does not get easier as one gets older.” I agree, and enquire if you have been unwell. You may tell me of your woes, or may retreat behind an uninformative remark: “Oh, I’m OK, thanks: just the usual aches and pains.” Kindly dispositions and sound motives, in the absence of a learnt and commonly understood practice, would be insufficient to sustain a social environment characterized by both concern and respect. Indeed, in the absence of such a practice, it might be hard even to envisage a stable social environment that successfully combined and acknowledged these two delicately poised values.
An emphasis upon civility can, of course, have its risks. The practices of civility can easily be emptied of their moral significance, becoming no more than the markers of social class or ethnic identity. The practice of civility by a ruling class towards a flagrantly exploited subject population can be nothing but a hollow mockery. Perhaps such perceptions of civility underlie Bunyan’s view. But none of this should lead us to the conclusion that the practices of civility are in themselves morally neutral, deriving any merit that they may possess from their contingent compliance with more abstract values. The good community cannot be understood in abstraction from its various constituents (legality and civility being amongst them) and therefore cannot be viewed as an ideal that is independent of those constituents. Moreover, practices such as civility and legality can have value independently of the complex good that they compose: even in an unjust regime, legality and civility continue to be of moral importance. But the possibilities for such independence are not unlimited. In truly dark times, the survival of such practices may be important primarily as a reminder of what once was, and as a slender testament to the possibility of a better world.
Although exhibiting this capacity for independence, our individual moral ideals are but abstractions from a broader way of life which may be known, remembered, or envisaged as a possibility. Taken in isolation, they can always lose their appeal. This is why, as Michael Oakeshott points out, “every moral ideal is potentially an obsession”: too single-minded a concern for justice can lead us to forget other values such as charity, and “a passion for righteousness has made many a man hard and merciless.”16 And it is perhaps why, after observing that “justice is the first virtue of institutions, as truth is of systems of thought,” Rawls goes on to acknowledge that such striking claims may be misleading overstatements.17
Having achieved some understanding of civility in the small and local, we may be led to reflect about what civility might mean for our politics. Here too we find practices of debate and deliberation that embody, at their best, a willingness to set on one side the peculiarities of one’s own outlook and feelings, and an attempt to view each issue from a perspective that can reasonably be shared by all well-motivated citizens. Here too, the individual who insists on constantly burdening us with his or her feelings seems tiresome, boring and disruptive: but also potentially dangerous to the polity and to standards of fair, open and mutually respectful discourse. These are important moral lessons that John Bunyans everywhere might profitably learn. But they will not be learnt by consulting one’s “inner light,” which (if untutored by the publicly acknowledged demands of civility) is likely to transmit a quite different message. They will be learnt only by the careful observation of conduct, and reflection upon shared practice.
One can have the letter of civility without the spirit, but it does not follow that the spirit is all and the letter is a mere instrument of transmission. There is a purely conventional element to civility, of course: the precise form of greeting employed in a community, for example, could easily be otherwise without moral loss, provided it is commonly understood. But such purely conventional elements form only a part of a complex structure that embodies and expresses a certain delicate combination of values.
Just as there is a conventional element to civility, so there is to law. According to the most widely accepted theory, each legal system contains fundamental rules of recognition which provide the criteria of legal validity in that system. Judges, we are told, need not reflect upon the nature of law, for their duty is to judge in accordance with the rules of the system under which they were appointed, “and it matters not at all whether these rules are legal ones.”18 Indeed, we are told that, while questions concerning the nature of law can indeed arise in the course of litigation, this is only in the same way that any other questions (such as questions of astrophysics or biology) can arise. In this respect the “judicial use of jurisprudential ideas … is analogous to the judicial use of ideas from biology.”19 I have elsewhere criticized these views, which are surprisingly weakly supported by argument: I will not repeat what I have already said.20 I do wish, however, to explain the way in which my own view departs from this widely endorsed position.
Unlike Ronald Dworkin (or, indeed, Lon Fuller), I do not feel strongly motivated to deny the existence of rules of recognition, if those rules are construed simply as rules that underpin and assist the broad convergence of opinion about the identification of law that is essential to any legal system. It seems to me quite likely that the necessary convergence of opinion could not be sustained without some such shared criteria.21 But, while rules of recognition may be necessary to the existence of law, they are not sufficient. Nor are they the outer boundary of juridical thought, as Hart’s theory suggests: we can ask questions about the legality of the rule of recognition and the system that it grounds. For derivability from a rule of recognition will confer legal status on the derived rule only when the rule of recognition is part of a system that is itself law. And, to constitute a system of law, the system must achieve a level of compliance with the requirements of Fuller’s eight precepts.22
Judges characteristically justify their decisions by appealing, not to the standards they consider to be just, nor to the standards that they and their colleagues happen to accept, but to the standards that they consider to be law. And, as we have just seen, derivability from a rule of recognition cannot guarantee the status of law to the rules so derived. Consequently, it is a mistake to think of the judge’s duty as fundamentally a duty to follow the rule of recognition: the judge’s duty is fundamentally one of fidelity to the idea of law (a duty which will, in most circumstances, require the judge to follow the rule of recognition, but which is never fully reducible to that duty). But if judges are to succeed in guiding their decisions by the requirement of fidelity to the idea of law, they must have a sound appreciation of the idea of law and of the reason why it should serve as their guide. This requires an understanding of a certain moral ideal, as we will now see.
That legality is the “Son of the Bond-Woman” may seem obvious. For, when we think of liberty (which the Bond-Woman and her offspring presumably lack) we think, in the first instance, of our ability to pursue a variety of options; or we think, at least, of the absence of (human, or other) restrictions on such pursuit. And does not law restrict our options by prescribing certain courses of conduct and backing its prescriptions with organized force? Indeed, not only does law restrict our options: it also appears to encroach upon our autonomy, by requiring us to obey the commands of other men and women simply because they have so commanded. To one who deems it important to be led only by their inner light, the law is bound to seem an unjustified curb and a moral affront.
Yet these seemingly evident facts are at odds with much of the rhetoric that surrounds the institutions of law. Although laws are created by men and women, we are told of something called “the rule of law,” which is quite different from “the rule of men.” And we are told that this “rule of law” is a safeguard of liberty, even while the law appears to prohibit certain actions. How are these things possible?
Of course, there have always been those who reply that these things are not possible. They tell us that the idea of “the rule of law” is an illusion, grounded on the belief in a “higher law” that is not made by men and women: but all laws are made by human action, and the rule of men must always lie behind, and be more fundamental than, the rule of law.
Those philosophers more inclined to defend the traditional rhetoric have developed a diversity of arguments. Michael Oakeshott, for example, suggested that law is compatible with liberty when it is the law of a “civil association,” and so restricts conduct only “adverbially”; while Hayek saw law as compatible with liberty in so far as it consists of general rules, and (perhaps in being the result of human action rather than human design) does not embody anyone’s will.23 Others have pointed to the need for laws to be self-applied by the citizen, and to the moment of freedom that is involved in the translation of a general requirement into the performance of this action here and now.24 The issues raised by such claims are too complex to consider here, but I doubt if any of these approaches can be sustained: laws can never restrict conduct purely “adverbially”; even general rules of customary law nevertheless restrict our options by mechanisms that require purposeful human intervention; and the requirement of self-application fails to distinguish the governance of law from governance by particular command.25
My own view is rather different, and it sees the most intimate connection between law and liberty as centering upon a fundamental aspect of liberty that is quite distinct from questions concerning the number, value or extent of the options available to us, or our ability to pursue those options. The aspect of liberty with which I am concerned is that which distinguishes the free man or woman from the slave and consists, not in the availability of options, but in the independence of those options from the will of anyone else: I speak of it as “freedom as independence.”
Slaves will generally possess only a very restricted range of options, it is true. But this is only a contingent and far from universal feature of slavery. Some slaves in Ancient Rome, for example, were entrusted with the running of considerable estates or large commercial enterprises, since their peculium (a fund of money administered by the slave but owned by the master) limited the master’s potential liability on contracts entered into by the slave’s agency.26 Such high-status slaves would inevitably enjoy a great many options (since the availability of such options was integral to their commercial management role) and might well enjoy a luxurious lifestyle to boot. Meanwhile, some free men and women might find their lives narrowly hemmed in by duties and by the constraints of circumstance, leaving them with very few options. Nevertheless the significance of the contrast between freedom and slavery was not at all undermined by these contingencies: the freedom of the free was as real and substantial as the slavery of the slaves.
But in what did this freedom consist? Not, it is clear, in the availability of options: for, as we have seen, the free man might possess fewer and less valuable options than the slave. Rather, the difference was to be found in the fact that the slave’s options, be they restricted or very extensive, were all fully dependent upon the will of the master; while the options of the free man, however restricted, enjoyed a degree of independence from the will of others.
Yet how can this be? Must life in society not dictate that our options are always at the mercy of our fellows? To a great extent this is, of course, so. But where a community is effectively governed by law, those so governed will necessarily possess certain options (which may be limited or may be extensive) that are dependent upon the law alone. Nor is this claim sustainable only by invoking some rigged, or unduly idealistic, account of law’s nature: I do not propose, in other words, to suggest that only systems conferring and protecting certain fundamental liberties are to be regarded as truly law. Rather, the connection between governance by law and freedom as independence can be firmly established even if we rely upon a most austere and minimal account of law’s nature.
Such an austere account can be derived from Lon Fuller’s famous story of Rex, as recounted in Fuller’s book The Morality of Law. That story carries a number of different messages. But it performs one straightforward task in identifying eight very settled understandings about what will and will not constitute a legal system. This is no mean achievement, for in a field as long-contested as the debate concerning law’s nature, there is little firm and uncontested ground from which an argument can proceed. Furthermore, it might be expected that any uncontested ground that is discoverable will be unlikely to yield fruit in the form of interesting and substantial conclusions. But in the case of Fuller’s eight desiderata this is not so. For taken collectively, they reveal to us how our concept of law is oriented towards a familiar political value: the rule of law. The minimum conditions that trace the boundary between law and non-law also point us towards a moral or political ideal.
Fuller’s eight desiderata make plain the connection between law and liberty. For, to the extent that a system satisfies Fuller’s requirements, it will consist of rules, and rules are general requirements that can be complied with in a diversity of different ways. A system of rules with which it is possible to comply will therefore confer on the citizen certain options, even if those options are very narrowly restricted (e.g., one’s life may be hemmed in with duties, but one may still retain the option of whistling or remaining silent whilst performing them).27 Such options constitute Hohfeldian liberties.28 Furthermore, to the extent that the governing regime wishes to implement its scheme of rules and secure whatever objectives or values the rules are intended to serve, it must enact and enforce general prohibitions upon the unauthorized use of force by one citizen against another.29 Prohibitions of this sort provide a “perimeter of protection”30 for the liberties that the system of rules has created. The options and protections thereby created amount to a system of rights. To the extent that Fuller’s precepts are complied with, those rights enjoy a degree of independence from the will of others. The rules in question may, of course, reflect the past will of the lawmakers. But, once enacted, the rules have an existence that is independent of that legislative will. Nor can they be changed too frequently, if the eight requirements are to be complied with.
In addition to all of this, developed legal systems include a complex practice of doctrinal legal scholarship. While the legislator’s choice may determine what statute is enacted, the effect that the statute has in changing the law is a matter to be determined by the historic practices of doctrinal legal science. These practices should, at their best, be shaped by the requirement of fidelity to the idea of law: discrete rules and enactments will, so far as possible, be construed as reflecting principles that already underpin much of the existing law (thereby reflecting Fuller’s requirement of reasonable stability through time);31 and all laws will be construed, so far as possible, as embodying a coherent and plausible conception of justice (thereby enabling the governance of law to be extended into what would otherwise be “penumbral” cases).32 In being subjected to this independent set of requirements, the lawmaker’s dictats are transformed into something quite different: a set of objective legal standards.33
Needless to say, governance by law can never give us complete freedom as independence (whatever that might be): but it can and does provide us with a degree of freedom as independence that is attainable in no other way, while one continues to live within a human community. Laws may, of course, create slavery, which is the negation of freedom as independence. But it must be remembered that the slave is not governed in accordance with Fuller’s eight desiderata, being an object of property. My claim is not that the governance of law confers freedom as independence upon all who inhabit a certain law-governed territory, or all who are subjected to the organized power that law involves.34 Rather, my claim is that, to the extent that one is governed in accordance with Fuller’s eight precepts, one enjoys a degree of freedom as independence that could be enjoyed in no other way.
Contrary to the thought of John Bunyan, governance by laws that are established and maintained by the authority of the collectivity is a precondition of freedom. A world where such authority was truly displaced by each individual’s appeal to his own inner light would be a world where none of us would enjoy options that have a degree of independence from the will of our fellow citizens: each of us would be made fully vulnerable to the will of all others. Nor need we counterpose the legal order to such a chaos of subjectivity in order to perceive its merits. For consider the type of village community that I have described elsewhere, that has general customary practices but settles disputes by compromise.35 It seems to me that such a community need not be unjust or oppressive, but could exhibit considerable concern for the well-being of all its inhabitants. Moreover, it might embody a high degree of equality of power. But it confers upon its inhabitants no sphere within which they enjoy any independence from the will of their neighbors: any conduct I engage in may, if it annoys my fellows, provoke a complaint; and any such complaint may end in my being forced to compromise. Within such a community, there is no sphere within which I can insist upon my right to act freely even in the face of hostile opposition.
IV. Precepts, Principles and the Inner Light
We can all agree with at least a part of what Bunyan intends. Clearly, one should not always act with unreflective conformity, nor should one allow the law, or conventional moral views, conclusively to determine one’s own moral judgment. Yet these sound observations can easily render us vulnerable to temptations and dangerous illusions that might be present within Bunyan’s outlook. For conventional ideas and established standards should not be treated with disdain, but should be given our careful attention. They are not simply neutral facts concerning the behavior of others; still less should they be viewed as, in essence, attempts to subject us to bondage by bending our conduct to another’s will. For they embody the judgment of our fellows regarding right and wrong. And how can we fully accept the moral reality and importance of persons if we so confidently reject their views?
Conscience has often been thought of as “the candle of the Lord set up within us.” Thomas Reid, for example, who employs this very phrase, sees conscience as part of our fundamental human nature, distinguishing us from animals, and he connects the irreducible status of conscience with what he sees as the self-evidence of fundamental moral propositions.36 But self-evidence need not, it seems to me, be thought of in this way as something directly inspired within us, or immediately accessible to us simply in virtue of our original constitution. To the extent that we have received an adequate upbringing within human society we have acquired a certain competence within the structure of practical reason, a structure that renders us mutually intelligible one to another and thereby constitutes our common humanity. The self-evidence of a proposition might best be thought of as something that it enjoys in virtue of its axiomatic place within that complex structure of practical reason. Knowledgeable access to such a structure may be possible only as the fruit of prolonged participation in dialogue with competent others, in which dialogue the errors of the tyro are corrected and sound habits of reflection and judgment are acquired. After such a lengthy apprenticeship, private and inner dialogue is, of course, possible: but it is made possible only by an upbringing and education that has given us a sense of many voices, many diverse strands in our moral and philosophical inheritance. We are fearful of the person who seems to have too confident and unambiguous a vision of their inner light, for we worry that, within their private reflections, only one voice is ever heard. So a belief that either morality, or practical reason more generally, may be founded upon self-evident truths, should not induce in us an attitude of disdain towards the opinions of others, which may be neither impositions of the will of others, nor constraining circumstances, but rather aspects of that collective participation in dialogue that sustains the body of practical reason.
F.H. Bradley observed that “to wish to be better than the world is to be already on the threshold of immorality.”37 Taken in isolation from the complex dialectical structure of his book Ethical Studies, the words might well be thought to suggest a need for uncritical submission to settled moral opinion. This seems to be the way in which Bradley was interpreted by Sidgwick, who wrote that Bradley’s position would seem unsatisfactory to “those who have been stimulated to ethical inquiry by the palpable inadequacy of the very common sense which is here offered as the solution of their difficulties.”38
Sidgwick was very different from one who claims to be guided by an inner light. Rather, he sought to minimize any dependence upon detached moral intuitions, endeavoring to ensure that (so far as possible) every particular prescription would be subsumable under a more general moral principle, and that the system of such principles should be free from conflict and indeterminacy. Ultimately, of course, this led Sidgwick to utilitarianism. The “palpable inadequacy” of common sense, perceived by Sidgwick, was thus but the reflection of his own unduly demanding rationalism.39
Although fiercely attached to articulable standards of reason, such an adherent of supreme principles resembles the inspired devotee of the inner light in at least one respect: they may come to seem strangely remote from ordinary human discourse. Within the workaday world of common sense morality, abstract principles such as the principle of utility or the categorical imperative are unfamiliar. If explicitly invoked, they will be viewed by ordinarily sensible men and women with a mixture of suspicion and bewilderment. Modern philosophers may see this as demonstrating only that such people are “proles” who require the crude guidance of local signposts, rather than “archangels” who can steer their course through life by the pole star of utility.40 Proletarian we may be, but some of us may feel more confidence in those local signposts than we feel in the philosopher’s grasp of the starry heavens above. For the signposts were, in all probability, erected and maintained by (admittedly fallible) people of good-will and sound experience, sharing with us a desire to find habitation while avoiding bogs and precipices, and (most importantly) possessing a detailed knowledge of the immediately surrounding landscape. The philosopher, by contrast, seems a puzzling figure: doubtless impressive, but also somewhat childlike and impractical. We feel that we cannot find much guidance within his categorical imperative or principle of utility, and much prefer to rely upon more familiar ideas such as friendship, courage, fidelity, civility, or decency. Furthermore, we are sufficiently vulgar to believe that these values cannot be understood in complete abstraction from our knowledge of actual instances of friendship (etc.): those instances are therefore not simply contexts within which a fully understood value can be realized (still less are they simply a vehicle for the realization of some such value), but are necessary to provide us with such understanding of the value as we possess.41 We wish to be better than we have been, and perhaps better than we ever will be: but the paths that we must follow for that purpose are, for the most part, not the straight roads of the philosopher, but the historic winding lanes that we inherited from our forebears.42
There are questions that need to be asked here, not about the philosopher’s devotion to reason, but about the conception of reason in which that devotion finds expression. Might not an attachment to abstract principles be as misguided as a belief in inner voices? For the idea that a diversity of moral precepts can be justified only by a single supreme principle may embody an unduly calculative or algorithmic conception of rationality (deriving perhaps from what Williams calls “social features of the modern world”43). Perhaps familiar moral precepts fit together, not by subsumption under yet more general precepts, but by forming integral parts of a known mode of human association that we recognize to possess diverse virtues, and from which the very idea of morality cannot be pried away without losing its identity.
It is interesting to compare Bradley’s statement with the following passage from Hegel, which preserves the complexity and subtlety which is apparently (although not actually) absent from Bradley’s version: “To have a conscience, if conscience is only formal subjectivity, is simply to be on the verge of slipping into evil; in independent self-certainty, with its independence of knowledge and decision, both morality and evil have their common root.”44 Here Hegel expressly acknowledges that, not evil alone, but “both morality and evil” find their root in our “independence of knowledge and decision.” While emphasizing the way in which our moral knowledge must be reflected in and expressed by the shared practices and institutions of the polity, Hegel nevertheless acknowledges the centrality of individual judgment. Here lies our problem. For morality is, as it were, both intensely personal (a matter of conscience) and irreducibly shared (a matter of inherited language, form of association, and dialogue with others). The fully responsible moral agent cannot wholly detach himself from an inherited set of ideas and a shared discourse, yet (equally) cannot unthinkingly conform either to settled opinion or to unexamined conviction. The ideas and practices composing the political community appear to be both an articulation of shared values, and a set of morally inert arrangements to be judged by independent principles. The individual must maintain an independent and potentially critical stance towards established practice and established opinion. Yet the individual’s morality will become but a badge of disconnected idiosyncrasy if it is not to some extent echoed by the commonly held standards of the surrounding community. Values must at least be intimated within existing forms of association if they are to be more than fantasies. It is for this reason that Hegel invites us to “recognize reason as the rose in the cross of the present.”
In seeking to understand morality’s relationship with both shared practice and individual critical judgment philosophies tend to emphasize one or other of the two poles. A familiar strategy, for example, is to treat philosophical inquiry into morality as an attempt to theorize certain moral “intuitions” that we identify by inward reflection. It is, of course, hoped and assumed that such intuitions will, to a very large extent, prove to be shared: but the basis for this assumption is not much discussed. In general the outward, social aspect of morality is treated as a distinct matter concerning “positive” rather than “critical” morality and forming perhaps the subject matter of sociology or history rather than philosophy. Institutions and practices are regarded as objects to be evaluated and criticized, by measuring them against the principles that the theorist has discovered, rather than as potentially important sources of moral insight. In spite of the fact that the moral “intuitions,” upon which so much reliance is placed, are inevitably bound up with our most fundamental associative practices, any explicit attempt to “recognize reason as the rose in the cross of the present” would widely be regarded as a perniciously conservative and ideological project.
Yet this need not be so. As the Young Hegelians clearly understood, the “rose in the cross” could be seen as the present’s potential for radical transformation by the full realization of reason: it does not necessarily refer to the present’s already completed attainment of reason. The Hegelian project is an attempted de-sublimation of reason, and such a de-sublimation seems very necessary if modernity’s characteristic skepticism concerning reason (or, alternatively, its reduction of reason to the purely instrumental) is to be resisted.45
Hegel tells us that “The unsophisticated heart takes the simple line of adhering with trustful conviction to what is publicly accepted as true and then building on this firm foundation its conduct and its set position in life.” But “human beings think and try to find in thinking both their freedom and the basis of ethical life.” Indeed, there is a “great obstinacy, the obstinacy which does honor to humanity,” and which is “the characteristic of modern times,” in the refusal “to recognize in one’s disposition anything not justified by thought.”46 There is a tendency, however, to assume that this freedom of thought can manifest itself only in divergence from what is publicly recognized, a tendency that is most pronounced in connection with political philosophy (the “philosophy of the state”). In the study of nature, it is assumed that nature is “inherently rational.” But the ethical world of the state “is not allowed to enjoy the good fortune which springs from the fact that reason has come to be a force and power within that element and maintains itself and has its home there.”47 Rather, the ethical world of the state is supposed to be “God-forsaken” and truth is thought to lie “outside such a world.”48 We will see in a moment that contemporary legal positivism is a vivid illustration of the outlook that Hegel here describes.
V. Sources of Legal Positivism
Analytical philosophy tends to work in piecemeal fashion, focusing first on this problem and then on that. The price that it pays is a lack of sufficient attention to the more general intellectual landscape that frames those problems and shapes the theorist’s understanding of their structure. The philosopher may deny that he has a broad philosophical vision, and insist that he is merely “wearing every thought down to its rightful little size and then keeping it in its rightful little place.”49 But, although it is tautologically true that each thought should be confined to its proper scope, the difficulty comes when we try to decide what that proper scope may be. The interpretation of every idea is unavoidably informed by a wider vision.50 Those who believe themselves to have dispensed with any such wider vision tend to be unaware of the picture of the world that informs their thinking, perhaps because they regard it as simply natural and obviously correct. Sometimes theorists are attracted by the thesis that our moral life is characterized by great rifts and discontinuities, and they favor an apparently piecemeal approach for the support that it is capable of giving to that thesis.51 However, any idea that finds itself the subject of philosophical investigation is likely to be the repository of great semiotic complexity, making many different interpretations possible. For the interpretive task to be more than an exercise in whimsy, each interpretation of each idea must be constrained by requirements of coherence with other related ideas, so that the “rightful little place” of each idea is determined by many widely scattered considerations. The attempt to identify and address tacit background assumptions is hazardous in some fairly obvious ways; but it is also unavoidable if we hope to make progress.