The Internal Goods of Legal Practice
Mark Retter*
Introduction
In response to Lon Fuller’s claim that the formal principles of legality
encapsulated by the rule of law constitute a procedural or internal morality of law,1
H.L.A. Hart made the following riposte:2
...if this is what the necessary connection of law and morality means,
we may accept it. It is unfortunately compatible with very great
iniquity.
This cryptic statement captures the elusiveness of many of the issues involved in
the debate over whether there is a necessary connection between positive law and
morality. Legal positivists generally claim there is no such connection because law
can be used for both good and evil purposes, and the rule of law, encompassed
within a rule of recognition of a legal system, can be accepted for merely selfinterested reasons.3 At the heart of the debate is much confusion over the complex
relationship between Fuller’s internal morality of law and the ends to which law is
employed. I argue that this dynamic can only be properly understood by grasping
the full implications of law being a ‘social practice’. In this respect, MacIntyre’s
conception of a social practice, and particularly his distinction between internal and
external goods of a practice, provides a more robust foundation for these
jurisprudential debates on the moral significance of law. In this paper, I will
orientate a broadly MacIntyrean theory of law within the debates on this topic
between H.L.A Hart, Matthew Kramer, Lon Fuller, Nigel Simmonds and John
Finnis.
*
PhD Candidate in Law and Gates Cambridge Scholar, Trinity Hall, University of Cambridge
Lon Fuller, The Morality of Law, (Yale University Press, 2nd Ed., 1969)
2 H.L.A Hart, The Concept of Law (Clarendon Press, 2nd Ed., 1994), 207
3 The interpretation of Hart is disputed on these points because of his recognition of a minimum
content of natural law and potential equivocation on whether the rule of law has a moral status. I will
be putting these interpretational difficulties aside to focus on Hart’s legal positivism as developed by
Kramer. At the very least, Hart suggests that any connection between law and morality should not be
given a significant place in legal theory.
1
1
An Internal and External Morality of Law
For conceptual clarity, we need to distinguish what Fuller calls an internal
morality of law from an external morality of law. Fuller describes eight ways in
which a ruler may fail to instantiate a ‘legal system’.4 The instantiation of these
eight precepts of legality is what defines a system of governance as a legal system,
and forms what he calls the ‘internal’ or ‘procedural’ morality of law. A legal
system will never perfectly comply with these eight precepts, but is defined as such
by the degree to which it approximates perfect compliance.5 While most legal
theorists accept Fuller’s eight precepts of legality as a defining feature of a legal
system, legal positivists dispute the claim that these precepts have a necessary
moral significance.
Fuller himself was not completely successful at articulating the moral value
of the rule of law. Hart criticises him for failing to adequately distinguish between
the purposiveness of an activity and its moral significance.6 However, Fuller does
attempt to distinguish the moral worth of his rule of law from the moral worthiness
of the substantive ends or content of law.7 Whereas the rule of law necessarily
involves the craft of legal practice, a focus on the substantive ends of law blurs the
distinction between the practice of politics and the more specific practice of law. In
this respect, Fuller states that ‘[t]he term “procedural” is concerned, not with the
substantive aims of legal rules, but with the ways in which a system of rules for
governing human conduct must be constructed and administered if it is to be
efficacious and at the same time remain what it purports to be’.8 He saw this moral
worth as being connected to the relationship of reciprocity between ruler and
citizen.9 And most importantly, he points to our human dignity as responsible
agents with rational powers of self-determination as providing the distinct reason
for his legal morality.10
This provides a skeletal outline of an internal legal morality. However, it
fails to clearly articulate the relationship and dynamic between this internal
4
A system of governance operates as a legal system if and only if (i) it is ordered by rules of a general
nature; (ii) the rules are promulgated; (iii) the rules are prospective; (iv) the rules are intelligible; (v)
the rules are free from conflict and contradiction; (vi) the rules are possible to comply with; (vii) the
rules are stable through time; and (viii) there is congruity between the rules and official action: Fuller
(1969), 33-94. For this paper, I accept Fuller’s formulation of the eight desiderata whilst fully
acknowledging the potential for debate: Nigel Simmonds, ‘Jurisprudence as a Moral and Historical
Inquiry’ (2005) 18 Canadian Journal of Law & Jurisprudence 249, 269-273; Nigel Simmonds, Law
as a Moral Idea (Oxford University Press, 2007), 158-163
5 Fuller (1969), 38-44; Simmonds (2007), 78-85
6 H.L.A. Hart, Essays in Jurisprudence and Philosophy (Clarendon Press, 1983), 343-353; Simmonds
(2007), 76-78; Nigel Simmonds, Central Issues in Jurisprudence (Sweet & Maxwell, 4th Ed., 2013),
256-260
7 Fuller (1969), 96-106, 153-155
8 Ibid., 97
9 Ibid., 39-40, 137-140
10 Ibid., 162-167
2
morality and the morality of the substantive ends of law. This has perhaps served to
obscure the particular moral significance of the rule of law and to generate
confusion in his debate with legal positivism.
In my opinion, St. Thomas’ definition of law provides the best starting point
for distinguishing these two aspects. St Thomas defines law as an ordinance of
practical reason for the common good of a community, made and promulgated by a
representative who has care of the community.11 In doing so, he places a primary
focus on the intellective nature of law rather than its binding authority. It is the
nature of law as an ordinance of reason for the common good promulgated by a
public representative which generates the obligatory normative force of law as a
binding reason for action on citizens under the law.12 This encapsulates a dynamic
relationship between an internal and external morality of law. What makes law
distinctive as an organising principle of a community is that it not only directs the
citizens to a common end, but it binds them to that end.
Law therefore involves two inter-related but distinguishable ethical
questions. First, what we might call an external morality concerning what ends a
community should pursue through law. Second, the binding operation of law raises
the ethical question for lawmakers concerning how a human person should be
bound to the common ends of a political community. This question incorporates, I
think, what we mean when we refer to the internal morality of law. I stress human
person because it is in considering how a human person should be treated, as a
subject of moral importance or value, which provides the question with its moral
importance.
This formulation of the internal morality of law can help clarify why Fuller
treats the rule of law as having moral value. It more clearly identifies the nature of
the rule of law as involving the structuring of law in response to the question of
how a human person ought to be bound to communal ends. In particular, it captures
Fuller’s insight that the reciprocal relationship between ruler and citizen requires
the treatment of the human person, in being subject to the law, as a responsible
rational agent who can participate in the reasoning and standards informing a
particular law to apply it in their own life circumstances. Not only can this form of
subsidiarity enhance the efficaciousness of law’s application to particulars, but it
serves to treat the legal subject in a manner appropriate to their rational capacity.
There remains, however, a problem. The legal positivist argues that the
connection between the rule of law and the communal ends, to which legal subjects
are bound, can serve to undermine the moral status of the rule of law. In particular,
Kramer has developed Hart’s claim that the rule of law has no necessary moral
status because it is possible for officials within a legal system to adopt the rule of
11
12
St. Thomas Aquinas, Summa Theologiae, I-II, Q.90; Q.91, A.1; Q.92, A.1, A.2
Ibid., I-II, Q.90, A.1, A.4; Q.96, A.5
3
law as a binding reason for action for merely self-interested reasons.13 This raises
an important question. To what extent can the potential of mere subjective reasons
of an official or ruler of a legal system serve to undermine the morality of the rule
of law by placing the focus on its efficaciousness for governance rather than its
manner of treating human persons?
The response to this question turns on our understanding of the social role of
an official (e.g. a judge) within the practice of law. In my opinion, legal positivism
fails to take account of the full significance of understanding legal practice as a
‘social practice’, involving socially established reasons for action, embedded
within its traditions and institutions. It is here that MacIntyre’s conception of a
social practice can play a vital role for rendering our moral intuitions concerning
the practice of law more intelligible.
Social Practices
MacIntyre’s formulation of a social practice differs from many
contemporary accounts in that it renders our reasons for engaging in a practice
intelligible by reference to ends internal to the practice. He provides an Aristotelian
account of social practices as cooperative activities that are structured and
organised by shared goals and standards of excellence. This teleological
understanding of practices allows for a critical engagement with the standards of
the practice as it is currently or conventionally practised. He defines a ‘practice’
as:14
...any coherent and complex form of socially established cooperative
activity through which goods internal to that form of activity are
realized in the course of trying to achieve those standards of
excellence which are appropriate to, and partially definitive of, that
form of activity, with the result that human powers to achieve
excellence, and human conceptions of ends and goods involved, are
systematically extended.
MacIntyre uses the example of chess.15 Think of a child, bribed to play chess
with the promise of candy if she wins. While this bribe may serve to motivate the
child to learn how to play according to the rules of the game, she will have good
reason to cheat or otherwise instrumentalise the game so long as the bribe remains
13
Matthew Kramer, Where Law and Morality Meet (Oxford University Press, 2004a), 172-222;
Matthew Kramer, ‘On the Moral Status of the Rule of Law’ (2004b) 63:1 The Cambridge Law
Journal 65; Matthew Kramer, ‘The Big Bad Wolf: Legal Positivism and its Detractors’ (2004c) 49
The American Journal of Jurisprudence 1; Matthew Kramer, ‘Once More Into the Fray: Challenges
for Legal Positivism’ (2008) 58 University of Toronto Law Journal 1; Matthew Kramer, ‘For the
Record: A Final Reply to N.E. Simmonds’ (2011) 56 The American Journal of Jurisprudence 115
14 Alasdair MacIntyre, After Virtue: A Study in Moral Theory (University of Notre Dame Press, 3 rd
Ed., 2007), 187
15 Ibid., 188
4
the chief motivating reason for her playing. However, once the child learns to
enjoy the standards of excellence internal to the game of chess, including the
particular skills and competitive challenges involved, the child will have good
reason to internalise and act by the rules of the game.
The chess example introduces a key distinction MacIntyre draws between
the goods internal to the activity of a cooperative social practice and those external
to such a practice.16 This distinction enables him to draw out the critical role of
social cooperation and dependency in relation to the fulfilment of important human
ends internal to human practices, and the rules, duties and rights arising in support
of this pursuit. For our purposes, it will be a crucial distinction for understanding
the social nature of reasons for action within legal practice.
The internal goods of a practice involve different incommensurable
satisfactions experienced in the achievement of excellence in performing the
activities of a practice. But the enjoyment or pleasure is not the good itself. Rather,
following Aristotle, the “enjoyment supervenes upon the successful activity in such
a way that the activity achieved and the activity enjoyed are one and the same
state” – making them difficult to distinguish.17 It is the extension of human skills,
capacities and virtues involved in the activity, as well as the activity done well and
any consequent product which constitute the internal goods.18 These internal goods
have social dimensions, as they are to some extent shareable rather than mutually
exclusive; and their attainment thereby requires forms of social cooperation and the
cultivation of relevant virtues.19 Thus, the formation and experience of engaging in
the practice and achieving its internal goods provides the participant with practical
reasons for acting that distinguish between what merely seems good and what
really is good vis-à-vis the practice.20
To the external observer, a practice may seem to be constituted by its rules.
But for participants in the practice, who have sufficiently internalised its standards
of achievement, the rules will be understood as derivative means for achieving and
16
Ibid., 188-190
Ibid., 197
18 MacIntyre does not follow Aristotle in separating praxis (action) from poiesis (production), and
therefore phronesis (rational orientation to action) from techne (rational orientation to production).
This means that MacIntyre treats the product of an activity as also internal to the activity, allowing
him to incorporate the skills developed to sustain good production within his virtue ethics. See:
Joseph Dunne, ‘An Intricate Fabric: Understanding the Rationality of Practice’ (2005) 13:3
Pedagogy, Culture and Society 367; Kelvin Knight, Aristotelian Philosophy: Ethics and Politics from
Aristotle to MacIntyre (Polity Press, 2007), 4-40, 150-156
19 MacIntyre (2007), 190-191; Alasdair MacIntyre, Three Rival Version of Moral Enquiry
(Duckworth, 1990a), 61-63
20 Alasdair MacIntyre, ‘Practical Rationalities as Forms of Social Structure’ (1987) in Kelvin Knight
(ed.), The MacIntyre Reader (Polity Press, 1998), 121-123; MacIntyre (1990a), 61-62; Alasdair
MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (Open Court, 1999),
66-69
17
5
extending the standards of a practice.21 As a consequence, it is not the rules per se
defining the practice, and this is evident in the fact that rules can change and
develop to improve the functioning of a practice. The internal goods provide
standards by which the rules can be critically appraised.
These internal goods contrast with external goods, like prestige, status,
power and money, which are only contingently related to the activities of a
practice.22 While external goods may follow, by consequence, on successful
participation in a practice, they need not. External goods will also tend to be
objects of rivalry, as their possession and enjoyment is more mutually exclusive;
and they are generally instrumental in nature. While they may provide important
resources for developing a practice, they do not define its internal standards of
success. There is therefore always the danger of a practice being ‘instrumentalised’
for the attainment of external goods in a way that corrupts or undermines the
functioning of its cooperative activity. Unless we pursue the ends of a practice for
their own sake, rather than simply as a means for attaining external goods, we miss
out on internalising the reasons for action that support the acquisition of the skills
and virtues necessary for attaining both internal and external goods together.
If a participant’s motivation for engaging in a practice is fixed on external
goods, the binding authority of the rules of that practice take on a primary
significance for orientating their action within the practice. This follows from the
inability of the participant to fully internalise the standards of excellence or internal
goods of the practice as their reason for conformity with the rules. For example, a
chess player wanting to quit because they unwittingly made a bad move will
indicate they are only following the rules to win and not for the shared standards of
excellence of the game. In contrast, when a participant’s motivation is sustained by
the internal goods of the practice, the rules are recognised as important means for
cooperating with other participants in achieving their shared internal goods. This
well-ordered relationship between the rules, virtues and goods of a practice is
supported by the social significance of the activity, and therefore any reasons for
action within the activity. By engaging in the giving and receiving of reasons for
action, such motivations are subject to critical scrutiny by other participants.23 The
critical standards for judging such reasons derive from the experience of what is
conducive to a well-ordered functioning of the practice.
MacIntyre also differentiates between a practice and the institutions
sustaining it.24 The practice involves the constitutive activity itself, whereas the
institutional form is structured to facilitate the activity. This institutional form
develops and enforces the rules, and facilitates the attainment and use of external
goods for the benefit of the practice. A practice typically requires an institutional
form if it is to be sustained. But there is always the danger that an institution
21
MacIntyre (2007), 190
Ibid., 188, 190-191, 196
23 Ibid., 217-218; MacIntyre (1999), 107
24 MacIntyre (2007), 194-195
22
6
becomes dominated by a bureaucratic rationality, or corrupted in a way that
orientates it towards external goods as the predominant end. This instrumentalises
the practice for exterior purposes and creates a conflict with the practical rationality
embedded in the practice. It represents a source of continual conflict between an
external technician’s rationality and the practitioner’s rationality.25
Practices are also extended in history with a tradition.26 There is always a
dialogical relationship between the participants of the present and of the past. Thus,
the systematic extension and transformation of the internal goods of a practice are
connected to the dialectical engagement between participants concerning the best
understanding of its standards so far and how to best achieve them in the present.
In this way there is a continual engagement between the conception of a practice by
the participants and the activity itself.
The human being is engaged in a web of social practices. To reflect this fact,
MacIntyre contextualises the many cooperative activities a person engages in,
some chosen and some not, within the context of a narrative life structure.27 For
MacIntyre, the question “What is my good?” is inescapable for the ordinary person
whether it be because social contexts and activities converge to make it difficult to
avoid explicitly raising the question; or whether the answer to that question is
simply presupposed in the pattern of activities constituting the way the person
comes to live their life.28 In this respect, he distinguishes what it means to have a
reason for action from the human capacity for practical reasoning.29 Both are only
intelligible in relation to there being some particular good or goods that can
motivate the human act, and thereby provide reasons for acting. But the capacity of
practical reasoning allows the human to extrapolate from their reasons for
particular actions and pursuit of particular goods to thinking more abstractly about
a general notion of ‘human good’ (or summum bonum) that can guide a more
complicated structuring and ordering of particular reasons for action.30
The narrative quest for a summum bonum, as MacIntyre describes it,
recognises the broader importance of the human search for a unified meaning and
happiness in life, which shapes human identity and flourishing. However, this
narrative is grounded in the roles, experiences and character formation provided
within social practices and the biological conditions of the human being, including
our vulnerability as independent practical reasoners.31 The human identity is not
25
Dunne (2005), 375
MacIntyre (2007), 193-194; Alasdair MacIntyre, ‘Epistemological Crises, Dramatic Narrative and
the Philosophy of Science’ (1977) in The Tasks of Philosophy: Selected Essays, Volume 1
(Cambridge University Press, 2006)
27 MacIntyre (2007), 204-225; MacIntyre (1990a), 127-145
28 Alasdair MacIntyre, ‘Plain Persons and Moral Philosophy’ in Knight (1998); Alasdair MacIntyre,
‘Intractable Moral Disagreements’ in Lawrence Cunningham (ed.), Intractable Disputes about the
Natural Law (University of Notre Dame Press, 2009a), 12-14, 17-18
29 MacIntyre (1999), 53-79
30 See also: MacIntyre (2007), 207-208; MacIntyre (1987), 121-124; MacIntyre (1990a), 61-63
31 MacIntyre (2007), 215-220; MacIntyre (1999), 81-128
26
7
reducible to the roles played in social practices; but these practices play an integral
part in constituting the human character over time, and grounding their future
aspirations. MacIntyre’s narrative structure, therefore, recognises that a human life
has a teleological character extending beyond social practices in pursuit of an
overall good, but crucially depending upon these social practices as constituents of
this good.
Furthermore, since the narrative of each person’s life also forms an
important part of an interlocking set of narratives of other human lives and
practices and vice versa, each person’s reasons for acting are, at least partly,
accountable to these shared narratives by their shared commitment to a flourishing
human life.32 This is important because it reinforces a participant’s accountability
to the process of giving and receiving reasons for action within a practice, in order
to support the intelligibility of the narrative of that practice and of other
participants.
This narrative structure to an individual’s participation in social practices is
critical for any account of politics as a social practice.33 It informs how we should
think of the common good of any political society as the shared conditions
conducive for human flourishing; and therefore of politics as a practice orientated
to the furtherance of the common good.34 As an indispensible constituent of this
common good, the narrative life structure provides MacIntyre with a compelling
middle ground between collectivism and liberal individualism. It recognises, as a
constituent of the common good, the intrinsic value of each human being in
bringing a rational order to their development and overall good, which is not
dependent on any contingent social practice or reducible to any particular social
practice; but necessarily involves their engagement in social practices as a socially
embedded and dependent rational animal. With this context we can understand law
as a practice that supports and extends the underlying practice of politics in
achieving this common good.
Law as a Social Practice
It is my contention that MacIntyre’s conception of a practice can make the
most intelligible sense of legal practice, and help clarify contemporary
jurisprudential debates on the moral significance of law. The suggestion that law be
understood as a social practice is not new.35 But, despite notable efforts to account
32
MacIntyre (2007), 218
Alasdair MacIntyre, ‘Politics, Philosophy and the Common Good’ in Knight (1998); MacIntyre
(1999), 113-146
34 For a similar conception of the common good see: Jacques Maritain, The Person and the Common
Good (University of Notre Dame Press, 1966); Yves Simon, Philosophy of Democratic Government
(University of Chicago Press, 1951)
35 See for example: Dennis Patterson, ‘Law’s Practice’ (1990) 90 Columbia Law Review 575; Dennis
Patterson, ‘Law’s Pragmatism: Law as Practice & Narrative’ (1990) 76 Virginia Law Review 937;
33
8
for the relationship between law as a ‘reason for acting’ and law as a ‘social
phenomenon’,36 there is still, in my opinion, an insufficient attention to the role of
sociality in legal practice. In this respect, MacIntyre’s thought can provide greater
clarity because it identifies the important role of internal goods for constituting the
cooperative nature of reasons for action within a practice. He is also a perfect
candidate for bringing virtue ethics into dialogue with jurisprudence because he
adopts a natural law position for explaining the existence of rules by their
relationship to virtues and goods.37 Many legal theorists would argue that such a
natural law theory smuggles a type of essentialism into our theory of law. But
MacIntyre’s focus on the social significance of reasons for action, presupposed
within social practices, provides a promising empirical foundation for his
teleology. To make a social practice, such as law, intelligible to us, we need to
understand the motivational structure of the practice which grounds the practical
reasons of its participants.
When we say law is a ‘social practice’, we mean at a basic level that law is a
purposive activity performed, in some sense, together. This ‘togetherness’ is the
key problem. My claim is that this ‘togetherness’ arises from the motivational
importance of internal goods to the activity. The social practice is cooperative
because the pursuit of these internal goods either requires or is systematically
improved by forms of cooperation that instantiate certain socially embodied
standards of excellence.
It is worth clarifying up front that these standards of excellence, and the
normative rules developed to support their achievement, need not be a matter of
explicit intentional design. A theory of practice is not constructed from an
externalised or bird’s eye view; nor does it necessarily involve reasons in the
forefront of participants’ minds. Rather, the practice of law is structured by the
intentionality of a host of human activity motivated, often on a sub-conscious level
through habit and disposition, by the goods it can provide to all participants when
undertaken cooperatively. By reflecting on the activities of legal practice over
Robert Post, ‘Legal Scholarship and the Practice of Law’ (1992) 63 University of Colorado Law
Review 615; F.A. Hayek, Law, Legislation and Liberty (Routledge Classics, 2013), 69-76; Ronald
Dworkin, Law’s Empire (Hart Publishing, 1998), 11-15; Nigel Simmonds, ‘Practice and Validity’
(1979) 38(2) Cambridge Law Journal 361; Nigel Simmonds, ‘Reflexivity and the Idea of Law’
(2010a) 1 Jurisprudence 1; Simmonds (2013), 166-167; Scott Shapiro, Legality (Harvard University
Press, 2010)
36 Finnis identifies this problem in one of his earlier papers: John Finnis, ‘Reason, Authority, and
Friendship’ in John Finnis, Reason in Action: Collected Essays: Volume 1 (Oxford University Press,
2011). His new natural law theory attempts to address the issue by providing an account of the
foundations of practical reason that constitute the conditions for this social dimension of law.
37 MacIntyre (1992); MacIntyre (2009a); Alasdair MacIntyre, God, Philosophy, Universities: A
Selective History of the Catholic Philosophical Tradition (Sheed & Ward, 2009b), 88-91
9
history, we can render the motivational structures of this (often spontaneous)
cooperative activity intelligible to us.38
In its more apparent institutional features, legal practice involves the
making, interpretation and application of legal rules in support of the practice of
politics. Law is a subsidiary practice in the sense that it derives its purpose from its
support of the ends of political practice. It is best thought of as a practice, as
MacIntyre describes, because it is an activity involving an extension of skills,
virtues and standards of excellence in order to realise laws that promote common
ends under the guise of the common good. Unlike many other practices, law is not
simply a practice for which we typically have a choice whether or not to
participate. We are part of legal practice in our capacity as legal subjects and law is
an ordinance of reason addressed to the practical intellect of those citizens subject
to it. Therefore, the activity of law extends from the making, interpreting and
applying of law by officials to the receiving, understanding and applying of law as
a binding reason for action by the practical intellect of legal subjects.
This connection between officials and legal subjects is what I think Fuller is
referring to when speaking of the reciprocity involved in law. However, Fuller does
not clearly identify this reciprocity or cooperation as motivated by goods internal to
legal practice. The standards of excellence of the legal craft derive from its nature
as a cooperative enterprise, motivated by certain internal goods that are only
achieved through cooperation. These internal goods are the catalyst for a network
of giving and receiving, whereby each participant’s motivation is mutually
dependent upon the motivation of other participants in a way that makes
commensuration impossible and imprudent.39 As a consequence, we cannot
understand the practical reason of participants within legal practice, and purposes
underpinning law as an activity, without comprehending the value and importance
these internal goods have for all participants.
We are generally initiated and formed in legal practice, first and foremost, as
legal subjects and we learn to distinguish between what is simply instrumentally
good qua individual, from what is good qua legal subject.40 This is the difference
between persons who treat the law as a binding reason for action only insofar as it
is likely to be enforced against them and law-abiding citizens who grasp, at least to
some extent, the value of the internal goods of legal practice; that is, the positive
value for them being law-abiding citizens. As the practice of law is fundamental to
the common good in providing the social conditions to develop and sustain our
capacities as independent practical reasoners, broader political and moral standards
are relevant to the internal standards of legal practice; but in a way which is
38
This reflection proceeds by what MacIntyre describes as a science of first principles, which aims to
uncover the reasons for action presupposed in the practice. The explanatory power of such principles
is judged by the extent to which they render the activity intelligible: Alasdair MacIntyre, ‘First
Principles, Final Ends and Contemporary Philosophical Issues’ (1990b) in MacIntyre (2006)
39 MacIntyre (1999), 99-128, 140-146
40 Ibid., 66-67
10
particular to the role of law in society and the role of the person qua legal subject.
This means that the judgment of what is good qua legal subject is reliant upon
judgments of what is good qua human being in the political context of law’s role in
the particular community.
All of these judgments and habits qua legal subject also inform what is good
qua official within legal practice because that role is dependent on the reciprocal
relationship it has to legal subjects. If the official reduces their reasons for action to
what is good qua individual, they are ignoring the social dependency of their
reasons within legal practice including the role law plays in political practice.
When law is invoked as a reason for action it has social significance connected to
the standards required for the pursuit of its internal goods. That reason for action is
necessarily expressed as a justification to other participants, and is therefore subject
to the critical scrutiny of their shared narrative of the practice. And fundamentally,
this justification has to have some implied connection to the use of force
accompanying the enforcement of law.41
As Simmonds points out, the paradigmatic role for identifying this problem
of law’s justificatory force is the judge.42 The act of making a judgment is a social
act, requiring the judge to enter into the social reasons for action, embodied in a
particular rule and its status as ‘law’, to provide adequate justification for their
judgment. This involves what Simmonds identifies as a type of ‘reflexivity’ in the
practice of law, whereby the identification and application of law relies on an
implicit appeal to the nature or function of law for its justification.43 Although it
might be possible, as Kramer argues, for an official to apply the rule of law for
mere self-interested reasons, this misses the point. The reasons provided in a
judgment are subject to the critical standards of excellence embodied in the
practice. It is not that a bad law is not possible. It is the fact that legal practice has
standards internal to it by reference to which a bad law can be identified by its
participants, and this identification can potentially bear upon their reasons for
recognising its binding authority.
An appeal to ‘law’, therefore, to justify the application of a law involves an
appeal to shared standards governing legal practice. In this respect, John Finnis is
right to identify a ‘focal instance’ of law. However, it is important to understand
the ‘practical viewpoint’ defining the ‘focal instance’ by what is consistent with the
practical reasoning of participants within legal practice.44 The internal goods of
legal practice, which provide the intelligible ends for practical reason within that
practice, are connected to what I have identified as the internal morality and
external morality of law. In what follows, I will take a closer look at why each of
these dimensions constitutes an internal good to legal practice. We should
41
Simmonds (2007), 172
Simmonds (2007), 113-143; Nigel Simmonds, ‘Reply: The Nature and Virtue of Law’ (2010b) 1(2)
Jurisprudence 277, 289-293
43 Simmonds (2007), 130-143, 156-158; Simmonds (2010a)
44 John Finnis, Natural Law and Natural Rights (Clarendon Press, 1980), Ch. 1
42
11
remember, however, not to confuse the reference to ‘internal morality’ and
‘external morality’ with that of ‘internal goods’ and ‘external goods’.
External Morality of Legal Practice
As I discussed above, the external morality of law concerns what ends a
community should pursue through law. It encapsulates the supporting role law has
for political practice as an internal good to legal practice. It is the support of
political practice which is the most fundamental reason for the activity of law. If
we did not need or desire to pursue common ends together, there would be no
reason for legal activity. At the most fundamental level, law enables or provides
the conditions for order and stability as a necessary precondition for and
constituent of the common good. The common good, however, extends to all forms
of ends pursued for the community at large under the bona fide appearance of it
being good for that community. The ordering of the community by law to the
achievement of the common good is a standard of excellence brought to bear on the
making, interpretation and application of law as an activity. This becomes part of
the very reason or rationale of a law, communicated to legal subjects as an
authoritative reason for action.
The context of what a law is designed to achieve for the common good
allows a legal subject to rationally engage with what the law requires in particular
circumstances. In fact, through this intellectual engagement with law as an
ordinance of reason, the legal subject can internalise the communal ends the law is
designed to achieve. By making these communal ends their own, the legal subject
participates more fully in the common good of the community. This does not stop
at simply creating law abiding citizens. It involves the ordering of the human
person to those social virtues and goods critical for human flourishing within the
community.45 For example, a law against littering can be internalised as a
communal standard reaching beyond its legal ambit to promote communal
cleanliness. Just like the child who learns to play by the rules of chess for the
excellence of the game, the legal subject can be formed through law to standards of
communal excellence. Legal practice, therefore, involves the systematic extension
of skills, capacities and virtues of lawmakers, judges, lawyers and citizens that
facilitate the realisation of the common good through law; but also reinforced by
the formation of legal subjects in identifying that common good as an essential
ingredient of their own flourishing.
The main argument made against this external morality of law is that it only
establishes law as a useful tool for obtaining communal ends, and not as
intrinsically moral. If we impute the moral value of the common good to law,
Kramer argues, we should also be willing to impute wickedness to law; as law can
45
MacIntyre (1999), 93-94, 108-112
12
be used for either.46 To respond to this argument, we need to distinguish different
senses in which a means to an end can be valuable. In the sense used by Kramer, a
means can share in the value or importance of the end achieved. But in a related
sense, a means can be valuable for its aptitude for the end. As Dietrich von
Hildebrand describes, the ‘perfection in which this aptitude consists is not
secondary, but primary to the means’.47 So, the claim of a necessary connection
between law and morality does not entail that law can only be used for achieving
the common good. Rather, law involves an aptitude and indispensability for
achieving the common good which is systematically extended by a well-ordered
legal practice.
Since law connects the intellect of the individual to the ends of political
practice, it necessarily has moral implications that turn upon what Finnis calls the
focal instance of law. Law is not simply an activity engaged in by those with
authority. It must be apt for the legal subject to receive, understand and act upon.
With this in mind, Aquinas calls a law contrary to the common good a ‘perversion
of law’48 (a non-focal instance). We can explain this by the fact that the reasons for
action involved are directed towards external rather than internal goods to the
practice of law, and are therefore not intended to be justified to other participants
according to the shared standards of the practice. This objectifies and
instrumentalises the cooperation of other participants in the practice for purposes
that are contingent and not shared. Just like the child playing chess for candy, the
reasons for action within legal practice become relative to external purposes. The
practice is treated as a social practice only relative to the purposes of the ruler or
government or officials, and should therefore be described as a non-focal instance,
or perhaps, an anti-social practice.
Furthermore, the possibility of law being serviceable for these extrinsic
purposes, as Kramer argues, does not impugn the fact that legal practice involves a
cooperative activity giving rise to internal standards of excellence by which this
instrumentalisation can be judged. In the same way, while a friendship may be
useful for extending one’s professional network, the use of a friend merely for this
end can be judged by that friend to affect the quality of the friendship. Both law
and friendship are cooperative practices which bring internal standards to bear on
the actions and reasons of the participants. It is only by abstracting from the nature
of law as a social practice that legal positivism can treat law as merely an
instrument involving the isolated reasons of the officials who use it.49 As the
analogy with friendship depicts, the use of law in this way, based on reasons that
abstract from the social activity, does not cease to be subject to the critical practical
standards of that social activity.
46
Kramer (2008), 37-38
Dietrich von Hildebrand, Christian Ethics (McKay, 1953), 58
48 Aquinas, ST, I-II, Q.92, A.1
49 Fuller makes a similar point about legal positivism abstracting from the social dimension of law:
Fuller (1969), 193-195
47
13
Internal Morality of Legal Practice
The connection between law and morality is more evident in relation to the
internal morality of law. Whereas the external morality of law involves the aptitude
of law for ordering citizens to a wide variety of communal ends, the internal
morality of law is connected to specific ends with moral value. These specific ends
are associated with the question of how a human person should be bound to the
common ends of a political community.
Finnis incorporates this internal morality of law (described by Fuller’s eight
desiderata) within his conception of justice and the common good.50 Although
broadly correct, this can, as Fuller suggests, obscure the distinct relationship law
has with these precepts of legality, compared to the variety of ends for which laws
are made to support political practice. It can perhaps confuse law as a distinct
means, compared to other political means, by which a political community might
direct its citizens to the common good.51 At the very least, the eight precepts
involve particular ends connected to the ethical question of how law should bind.
We can still adopt Aquinas’ approach of treating the binding nature of law as a
secondary feature that flows from the essential character of law, and yet recognise
this binding authority as necessary. Law would not be law without it. It is therefore
important to recognise the distinct role of motivations, formed in response to the
inescapable ethical question of how human persons ought to be bound to
communal ends, for shaping the necessary rules and institutional form of law.
My claim is that the eight precepts are rules of legal practice that have
developed over time in orientating the practice towards the internal goods
associated with this ethical question. These internal goods are of a secondary order
because they presuppose communal ends to which citizens should be bound. In
other words, the question of how to bind follows upon a decision concerning what
substantive ends law should pursue. Hart’s description of secondary rules is helpful
here. The eight precepts of legality involve rules that are essentially ‘about rules’.52
They are rules that structure the crafting of law within legal practice.
We need to depart from Hart, however, to stress that these ‘rules about rules’
develop according to the practical reason associated with the common pursuit of
internal goods to legal practice. They can only be fully intelligible as part of the
broader activity of legal practice if they have an intelligible relation to the internal
virtues and goods that ground the practical reason for engaging in the activity. We
should therefore understand the precepts of legality as institutional rules or norms
Finnis (1980), 272-273; John Finnis, ‘Law as Idea, Ideal and Duty’ (2010) 1(2) Jurisprudence 245,
250
51 Simmonds (2007), 182-189; Simmonds (2010b), 279-280; Nigel Simmonds, Value, Practice and
Idea’ in John Keown and Robert George (eds), Reason, Morality and Law: The Philosophy of John
Finnis (Oxford University Press, 2013), 324-325
52 Hart (1994), 94-99
50
14
guiding how lawmaking, interpretation and application should generally proceed to
achieve certain standards of excellence within legal practice.
What then are the particular standards of excellence associated with the eight
desiderata? Finnis claims that the ‘fundamental point of the desiderata is to secure
to the subjects of authority the dignity of self-direction and freedom from certain
forms of manipulation’.53 This explanation has an affinity with Fuller’s own view
that the eight precepts provide for our human dignity as responsible agents with
rational powers of self-determination. But it contrasts somewhat with that of
Simmonds, who conceives the rule of law as aiming at the moral value of freedom
as independence from the power of another.54 This aspect of freedom is not
concerned with the range of options available to a person, but with whether such
options are subject to the will of another. It is what ‘distinguishes the slave from
the free man’, and is realised, Simmonds argues, to the extent we are governed by
law complying with the eight desiderata.55 In what follows, I will argue that both
accounts are true, but in the next section I will describe how their relation to each
other relies crucially upon what differentiates a focal instance from a non-focal
instance of law, in whether the law is aiming at the common good.
In my opinion, the focal instance of law, realised by the orientation of legal
subjects to the common good as an internal good of the practice, allows for the rule
of law to achieve a form of freedom as dominion for legal subjects.56 This freedom
as dominion is described in general terms by Finnis (and perhaps Fuller).57 It
involves the ability of the human person to exercise a rational direction over their
action and flourishing as a human being within their community. It includes our
capacity to act and flourish as responsible agents, as well as the range of matters
falling within this rational direction. However, it also includes Simmonds’
formulation of freedom as independence because the experience of our rational
dominion has a dependency on the extent to which it is subject to the will of
another human person.
Together, these dimensions of freedom as dominion reflect our aspiration to
be what MacIntyre calls independent practical reasoners.58 But, we need to stress
that this aspiration is conditioned, as I discussed above, by our human vulnerability
and social dependency. Community is not simply instrumental for coordinating
pre-existent independent practical reasoners. Rather, our ability to act as
53
Finnis (1980), 273
Simmonds (2007), 99-111
55 Simmonds (2010a), 21-22
56 Freedom as dominion is fundamental to Aquinas’ definition of ‘person’ as ‘rational substances
which have dominion over their own actions’: Aquinas, ST, I, Q.29, A.1. See also: I-II, Q.1, A.1, A.2;
Q.96, A.4; Thomas Pink, ‘Thomas Hobbes and the Ethics of Freedom’ (2011) 54(5) Inquiry 541;
Karol Wojtyla, ‘The Personal Structure of Self-Determination’ in Karol Wojtyla, Person and
Community: Selected Essays (Peter Lang, 1993)
57 John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford University Press, 1998), 72-78,
170
58 MacIntyre (1999), 71-76, 81-98
54
15
independent practical reasoners is developed and supported through our prior and
continuing engagement in the many different social practices constituting our
common good. These human circumstances of vulnerability and dependency
condition the extent to which the instantiation of the rule of law, within legal
practice, is a necessary cooperative task if we are to develop as independent
practical reasoners within our community.
Our capacity as practical reasoners enables us to comprehend the rationality
of law; to put law into practice. This inter-action is a critical part of legal practice.
The effective implementation of law is dependent on its intellective operation
through legal subjects. No rule can treat all potential contingencies that could
impact on its effectiveness and all rules will involve an operation of practical
reason to determine whether it applies to the particular circumstances.59 It therefore
makes sense to craft laws in a manner conducive for the legal subject to understand
their underlying rationality and approximate how the law should be applied to
particulars to best serve the communal ends at stake. This involves participation by
the legal subject in the practical rationality of the law, so that the ends of law
become their own.
The instantiation of the eight desiderata in legal practice can be rendered
intelligible by this motivation to enhance this intellective participation and provide
conditions for a more efficacious connection between the practical rationality of a
law and the practical reason of legal subjects. Essentially, this understands the eight
desiderata as promoting the efficaciousness of law by facilitating the ability of
legal subjects to rationally participate in law. In this way, the internal morality of
law is connected to its external morality, being part of the structure of law that
conditions its aptitude for directing legal subjects to the common good. This
connection involves the fulfilment of a certain degree of freedom as dominion for
legal subjects, for them to consider how to best order their lives and actions for
achieving the communal ends at stake. The citizen is thereby recognised through
law as a responsible agent who can direct herself, in action and habit, to participate
in the common ends of law.
But this rational dominion is not simply instrumental for law’s efficacy. It is
also an indispensible constituent of the common good, and an essential
precondition for normal human flourishing.60 The crafting of law in greater
compliance with the eight desiderata provides a greater freedom as dominion for
the citizen to order her own life narrative, in the achievement of her summum
bonum and its relationship to the common good (especially as it is encapsulated
within the substantive content of law). Although this may be described as part of
the external morality of law, being an indispensible constituent of the common
good, it can be distinguished from other communal ends because it is a specific end
achieved through the secondary rules and institutional form of legal practice.
Therefore, at the heart of the internal morality of law is a realisation of the value or
59
60
Ibid., 93
Ibid., 64-65, 105-114
16
importance of the human being as an independent practical reasoner, and the
consequence of this for the binding operation of law. This value is presupposed in
our human desire to act for our good, which constitutes the importance of the
exercise of our human capacity for practical reason to judge what it is to act for our
good. The social dependency and vulnerability of this capacity provides a basis for
the communal or cooperative nature of the value.
Of course, an official may not recognise this value and may instead be
motivated to comply with the rule of law for political effectiveness. However, the
motivation of such an official always occurs in the context of its reciprocal
connection to the motivations of other participants, including legal subjects partly
motivated by the cultivation of their own rational dominion within legal practice.
We need to remember that the official is engaged in the giving and receiving of
reasons within legal practice, and the reasons they offer for their action require an
intelligible relation to the motivations of all participants if they are to support the
cooperative functioning of the practice, and particularly the inter-dependent
motivation of legal subjects to act in support of law’s efficacy.
It is also important to bear in mind that the internal goods of legal practice
have structured that practice over time by the motivation of past and present
participants. The derivative rules, values and virtues that have arisen in support of
the attainment of these internal goods are embedded within the institutional form of
the practice itself. This includes the development of secondary rules, like the eight
precepts of legality, in response to the question of how human persons should be
bound. As a consequence, these rules, values and virtues have a degree of
autonomy and objectivity sustained by the practice’s tradition.61 Their autonomy is
reinforced by the central role law has as a structural constituent of a continuing
social order, which retains an identity even through revolution.62 Therefore, the
moral rules, values and virtues instantiated within legal practice stand apart to
some extent from the particular practical reason of individual participants,
including legal officials and even regimes.
The necessary connection between law and morality is thereby maintained
by the historical structuring of the practice of law around its internal goods,
including the specific moral value of freedom as dominion. The possibility of an
official adopting merely self-interested reasons for applying law does not sever this
connection with the moral value within the practice. Instead, the providing of such
reasons runs against the historical experience of the importance of that moral value
for the practice, which remains an important internal standard by which these
reasons can be criticised as ‘unjust’ by other participants.
61
MacIntyre (1977), 11-14; MacIntyre (2007), 193-195; MacIntyre (1990), 58-69. For the importance
of tradition for the exercise of reason from the hermeneutical standpoint see: Hans-Georg Gadamer,
Truth and Method (Continuum, 2nd Rev. Ed., 2004), 278-289; Michael Oakeshott, ‘Rationalism in
Politics’ in Rationalism in Politics and Other Essays (Liberty Fund, 1991)
62 Eric Voegelin, The Collected Works of Eric Voegelin: Volume 27: The Nature of the Law and
Related Legal Writings (Louisiana State University Press, 1991), 29-42, 48-49, 55-58, 67-69
17
The law then has a very intimate connection to the virtue of justice, which
has a mutually reinforcing relationship to legal tradition. The functioning of law as
a cooperative practice is dependent on both officials and legal subjects cooperating
by disposing themselves through the inculcation of habits to act for the internal
goods of legal practice. This will involve the fostering of justice as a virtue, so that
participants are disposed to a mutual recognition of each other’s rights and duties
within the practice, both legal and moral. But supporting this virtue of justice is
what MacIntyre calls the virtue of acknowledged dependence, which disposes us to
admit the dependence of our flourishing as independent practical reasoners on the
cooperative nature of the social practices in which we engage.63
This historical and habit forming dimension to legal practice strengthens the
bearing of the focal instance of law as a standard by which we judge any non-focal
instance, because in the long-run the justification of legal authority cannot be
separated in practice from the practical reason of all participants. Reinforcing this
point is the fact that legal theorists, and the participants of the practice, stand in a
dialogical relationship with its past. Thus the standards of legal practice cannot be
reduced to the immanent practical reasons of the present. The practice necessarily
incorporates an intelligible relationship to its past, which can bring past standards
to bear on identifying ‘declines’ in the function of law in the present and to identify
where law has devolved into an anti-social practice.
Law as an Anti-Social Practice
We can now examine what constitutes a non-focal instance of law and the
dynamics between the internal goods of legal practice when it becomes anti-social.
MacIntyre’s distinction between internal and external goods allows us to
conceptualise the non-focal instance of law as an objectification and
instrumentalisation of legal practice. Firstly, the practice is objectified by the depersonalising treatment of the activity as a mere tool. The failure to recognise the
social nature of the reasons for action within the practice treats other human
participants as objects for one’s own reasons for action, rather than as persons with
whom one engages in a cooperative activity of giving and receiving.64 Secondly,
the practice is instrumentalised by its use for purposes or goods extrinsic and only
contingently related to its cooperative nature. The external good of power is of
particular relevance for an authority seeking to use law for its own extraneous
purposes.65
A good or end can be identified as ‘external’ to legal practice if it does not
aim at the common good, and therefore cannot support the reasons for action for all
participants in the practice. Using law to pursue such external goods will tend to
63
MacIntyre (1999), 118-128
MacIntyre (1999), 108-109, 140-141
65 Ibid., 102-103
64
18
undermine the pursuit of the internal goods of legal practice, by diverting the ends
of law away from the common good. This is a distortion or corruption of legal
practice judged in respect of the ends that support its well-ordered functioning as a
cooperative social practice. As the ends of law are made relative to the reasons of
the official or ruler or regime, the legal subject is less able to participate in the
rationality of those ends because they no longer aim at a common good. This will
generally undermine the efficaciousness of law because the application of law to
particulars is affected by the extent to which legal subjects can participate in the
rationality of law, and internalise its communal standards.
Within a wicked regime, the legal subject can no longer identify the ends of
the law as aiming in good faith at the common good at all. Their participation in
the practical rationality of the law is only maintained as sub specie boni, with
adequate motivation as a binding practical reason for action, for reasons extraneous
to the internal goods of legal practice and therefore only contingently connected to
its cooperative activity.66 In such cases, the enforcement of law may lose its
justificatory basis within the social practice. Thus, Aquinas says that the citizen’s
participation in such a law is a participation in a good relative to the particular
authority.67 Legal practice essentially becomes anti-social by the appropriation of
its cooperative activity for purposes that are not shared.
But even within an anti-social legal practice, there remains a vestige of the
internal morality of law. In the non-focal instance, the rule of law cannot sustain a
more expansive freedom as dominion. However, as Simmonds rightly recognises,
‘[t]o be governed by law is to enjoy a degree of independence from the will of
others’68 even in the circumstances of what I call an anti-social legal practice. Since
laws must be generally prospective and have a degree of continuity, there is to this
extent an independence from the will of the lawmaker. Furthermore, this degree of
independence from the will of another incorporates a domain of conduct subject to
one’s own rational dominion because ‘in consisting of followable rules, the law
must recognize certain areas of optional (non-obligatory) conduct, however
narrowly circumscribed those areas may be’.69
This freedom is only a vestige of the broader freedom as dominion. The
crucial difference is that any rational dominion is more likely to be seen as
mutually exclusive to the domain of obligatory conduct constrained by the
substantive content of law. Essentially, the anti-social legal practice and the
practical reason of legal subjects are at cross-purposes. The legal subject is less
able to internalise the standards embodied in the law as their own because this
rationality is no longer as justifiable by reference to shared ends, except perhaps
66
Aquinas, ST, I-II, Q.96, A.4; Finnis (1980), 330-337, 351-366. While the extent to which the
principle of jus injusta non est lex applies to positive enactments is beyond the scope of this paper, I
agree with much of what Finnis says on this topic.
67 Aquinas, ST, I-II, Q.92, A.1
68 Nigel Simmonds, ‘Law as a Moral Idea’ (2005) 55:1 University of Toronto Law Journal 61, 88
69 Ibid., 90
19
the stability and order which even a tyranny may provide.70 In these circumstances,
the binding authority of law takes on particular significance as an external
constraint upon individual conduct because, just like the candy motivating the child
to play chess, the ends are no longer rationally shared by the participants as bona
fide communal ends. Nevertheless, to the extent there is still governance by law,
the degree of respect for the eight precepts of legality which govern its
promulgation and prospective operation will provide a degree, even a small degree,
of independence.
This provides a critical rebuttal to legal positivism. Even where law is used
for unjust ends, the practice of law retains a connection to a specific moral value.
Furthermore, the connection to this specific moral value is maintained within the
tradition and institutional form of law over time. Thus, Kramer’s response to
Simmonds that a moral value, such as freedom as independence, does not
necessarily bear upon the prudential reasoning of the official misses the mark. The
moral value of freedom as independence continues to inform the historically
constituted standards of the practice, and particularly its secondary rules, despite
their instrumentalisation. It is a moral value instantiated in the tradition and
institutional form of the practice, whilst not necessarily being part of the particular
reasons of an official.
Through the lens of MacIntyre’s social teleology, though, we can see that
legal positivism is based on a more fundamental mistake. It conflates the pursuit of
goods internal to legal practice with the instrumentalisation of legal practice for
external goods. Legal positivists are only able to do this by abstracting from the
cooperative nature of legal practice as a social practice. Nevertheless, even though
the instrumentalisation of legal practice undermines the link between the rule of
law and the common good, and corrupts the internal good of rational dominion;
there still remains a vestige of law’s adeptness for the common good, reflecting the
nature of legal activity as addressed to the practical intellect of legal subjects. This
is reflected in the degree of freedom as independence that the practice of law is
able to secure for the citizen to pursue their own life narrative in spite of the
purposes of an unjust regime.
Although we might agree with Hart that it is unfortunate that such a moral
value is consistent with such great iniquity as Nazi law, the tenor of his observation
would seem to treat a profound social reality rather superficially. It does seem to be
an unfortunate reality that our lives, and the many social practices that constitute
them, can be caught interdependently within a social order that is substantially
unjust. Hart would seem to render the reality of this human condition superficial by
abstracting it from this social embeddedness, along with the moral actions, virtues
70
Note that none of this discussion entails that positive law will or should necessarily lose its legal
force, or even its moral bindingness, under an anti-social practice. Even a tyranny can provide good
reasons for compliance with law. But, the point is that these reasons will only be contingently related
to the practice: St. Thomas Aquinas, De Regno, Ch.VI, Ch.X; Aquinas, ST, I-II, Q.96, A.4
20
and values that only make sense within it.71 This social interdependence requires
the authority of law to be explained by reference to the motivations of all
participants in legal practice, underpinned by the internal goods that give rise to
this interdependence. But instead, legal positivism focuses on the practical reasons
of lawmakers, regimes or officials, isolated from the social implications and
scrutiny of such reasons within the cooperative activity of legal practice. This
reduces the conception of any possible connection to morality as being one of
moral act types; as opposed to a conception of morality derived from the internal
standards of the cooperative activity of law and sustained by the functioning of that
practice over time.
The analogy that Hart draws with the purposive activity of poisoning
provides a good example.72 Hart wants to clarify what he sees to be the
fundamental confusion Fuller makes in failing to distinguish between purposive
activity and morality. The fact that law is a purposive activity does not establish it
as an intrinsically moral activity; just as the fact that the art of making poison is not
intrinsically moral. However, the key distinction Hart abstracts from is that law is a
cooperative activity. Its purposive functioning, therefore, will have moral
implications; just as the art of making poison would have moral implications in the
broader purposive activity of pharmaceutical production within the practice of
medicine. And, unlike many other social practices, the moral implications are
intensified by the fact that legal subjects cannot typically choose to extricate their
life narrative from legal practice. This raises the importance of the rule of law for
our capacity as independent practical reasoners.
The problem lies in how the ‘activity’ of law is defined and this is where
MacIntyre’s conception of a social practice is particularly helpful. It is only by
constraining the definition of law to a social practice engaged in by officials alone
that Hart, and other legal positivists, can abstract from the moral implications of
the cooperative enterprise of law when it devolves into an anti-social practice. But
in doing so, legal positivism fails to make sense of the functioning of that activity
in respect of legal subjects and the intelligible connections that principles of
legality have in respect of this functioning. In particular, the ethical question of
how a human person should be bound by law still confronts the isolated practical
reason of positivist officials and points them to a deeper social reality.
Legal Theory and Practice
In the background to these debates is an argument over methodology. Hart
wants to distinguish clearly between legal reasons and moral reasons, because he
believes this provides greater clarity to the concept of law.73 Related to this, is a
71
MacIntyre (2007), 23, 181-225; MacIntyre (1990a), 58-68; MacIntyre (1999), 107-114
Hart (1983), 350-351. Similar examples of firing a gun at a person or gambling at cards are used by
Kramer to undermine the idea of law being an intrinsically moral activity: Kramer (2004b), 70-73
73 Hart (1994), 82-110
72
21
certain anxiety over the more aspirational use of ‘law’ and its connection to the use
of ‘law’ to refer to legal validity or invalidity, from which legal rights and duties
are derived. The concern is that confusing the two leads to an uncertainty which
undermines the application of law. Thus, Hart proposes that the two senses be kept
apart by distinguishing between an internal perspective, where legal validity and
invalidity applies, and an external perspective, from which we can bring our moral
reflections to bear upon the practice of law in the relevant legal system.
This separation, however, inherently involves a theoretical abstraction of
‘legal reasons’ from the practical reasons internal to and not contingently related to
legal practice. To the extent that these legal reasons are an abstraction that is
disconnected from the practical reasons given and received within legal practice, it
will only support what MacIntyre calls an ‘ideology’, or theoretical construct
imposed upon the practice, rather than a tradition of enquiry that aims to render the
practice intelligible over time by uncovering what is presupposed by the activity. 74
This raises an important question concerning the ability of legal positivism to
account for practical reason within legal practice if it limits attention to legal
reasons.
According to Hart, the motivational value for the practice of officials
accepting a basic rule of recognition would seem to be that it supports the existence
of a system of publicly ascertainable rules for human conduct.75 But what is the
reason for having publicly ascertainable rules? Such a reason must underlie the
force of law in order for the invocation of law to be a prima facie justification to
legal subjects for its enforcement. Perhaps a response could be crafted from Hart’s
explanation that our need for a system of rules derives from its importance for
human survival, given a ‘minimum content of natural law’.76 But the practical
reason for human action within legal practice cannot be separated so artificially
from the reasons for the existence of the practice, which is sustained by the
continuing motivations of participants engaging in the practice.
Law is critical for establishing a primitive or original form of order that
protects human survival. However, if we limit our attention to this minimum
necessary content of natural law we distort our conception of the human being by
focusing on the lowest common denominator of human survival at the cost of a
broader account of human flourishing that is presupposed by our activities. In
particular, this ignores the crucial contribution that the extension of standards
MacIntyre (1977); Alasdair MacIntyre, ‘Social Science Methodology as the Ideology of
Bureaucratic Authority’ (1979) in Knight (1998); MacIntyre (2007), 79-108; Alasdair MacIntyre,
Whose Justice? Which Rationality? (University of Notre Dame Press, 1988), 354-365; MacIntyre
(1990a), 127-148; MacIntyre (1990b)
75 Hart (1994), 249; Simmonds (2013), 250-251
76 Hart (1994), Ch.IX. Hart’s minimum content of natural law includes natural facts about: (i) human
vulnerability; (ii) approximate equality; (iii) limited resources; and (iv) limited understanding and
strength of will.
74
22
within the craft of law can make to the motivations of its participants in respect of
the practice.
More importantly, this minimum content itself points beyond its minimalist
label. For example, consider the natural fact of human vulnerability, which Hart
recognises as an important reason for the need to establish order. MacIntyre
reminds us that we cannot separate our capacity for independent practical
reasoning from such vulnerability and dependency. The radical dependency and
vulnerability of human agency underscores how the extension of cooperation
within social practices is not simply possible but absolutely necessary for human
flourishing. In particular, legal practice is critical for broader cooperation within an
inter-dependent community, which provides the constitutive conditions for our own
life narratives. Human cooperation within legal practice becomes vital for
achieving much more than survival, and thus considerations of what is good qua
human being in the political context of law’s role in the particular community
cannot be so easily estranged from the consideration of what is good qua legal
subject and qua official within legal practice. Instead, the systematic extension of
standards of excellence within legal practice extends the conditions for human
flourishing in society through its internal goods. This points us, and the legal
theorist, to the need for the virtue of acknowledged dependence.
If our theory of law does not capture this actual and potential systematic
extension of motivation within legal practice through cooperation, we leave the
binding force of law partially unexplained and mysterious. The theory will not
adequately explain how the reasons of officials (and particularly judges) relate to
and interact with those of legal subjects through the reflexive nature of legal
justification, whereby the application of law is justified in respect of it being law.
Legal reasons become something that we add to other moral motivations as
opposed to having internal justificatory force deriving from the standards of
cooperative excellence embodied within legal practice. In this way, the use of law
as a justification for force will either lack explanatory power because of the
abstraction of legal reasons from practical reason; or, as Eric Voegelin argues,
divinise law by endowing it with a mysterious authority that transcends our rational
understanding because of the reduction of practical reason to these legal reasons.77
In any case, the main concerns raised by legal positivism can be addressed
within a MacIntyrean understanding of legal practice. It makes sense that the social
scrutiny of reasons within legal practice, especially between judges and legal
subjects, would develop a form of reflexivity to the application of law, which
carries a prima facie legitimacy and compulsory authority in its status as law, based
on it being the indispensible means by which participants achieve the internal
goods to legal practice. The need for stability, order and clear guidance for conduct
is a fundamental part of the common good which necessarily supports this prima
facie binding authority. Moreover, the expression of this prima facie authority can
Eric Voegelin, ‘The New Science of Politics’ in The Collected Works of Eric Voegelin: Volume 5:
Modernity Without Restraint (University of Missouri Press, 2000)
77
23
be seen in the participants’ differentiation, within the practice, of positive law from
many different forms of moral reasons for action that are only contingently related
to the cooperative enterprise of law. We can also make sense of the aspirational use
of ‘law’ in relation to the maintenance and extension of the standards of
achievement in respect of the internal goods of the practice.
This MacIntyrean theory of legal practice involves an engagement with the
reasons presupposed by the practice. The basic contrast in methodology may be
linked to MacIntyre’s observation that the institutional form of a practice is a cause
for persistent tension between the pursuit of internal and external goods. This relies
upon a distinction between an internal and external viewpoint, whereby the
institution is often permeated by a descriptive standpoint that does not exist and
blurs the distinction between internal and external goods.78 It is only the participant
or practitioner, sufficiently attuned to the internal goods of a practice in their own
practical reason and engaged in a tradition of enquiry into the meaning of the
practice from within it, who can be in a position to formulate a non-ideological
social theory about the practice, which is open to continual improvement through
history.79 In contrast, the standpoint of the person who abstracts from these
motivations is that of the technician. This standpoint is more likely to accentuate
the role of the structural features of the practice, in its rules and institutions,
because it loses sight of the intelligible link between the institutional form and the
internal goods justifying it. The proper practice of law is thereby mistaken for its
instrumentalisation.
The problem with this technician’s standpoint is that it presumes a form of
objectivity in its externalised or disengaged position. For MacIntyre, however,
there is no such thing as an externalised or disengaged standpoint from which a
practice can be simply ‘described’. The pretense of adopting such a standpoint
undermines a theory’s explanatory power because any such theory will presuppose
a prior theoretical framework by which it interprets what constitutes a ‘fact’ within
the practice. Furthermore, this disengagement disconnects the technician from a
practical understanding of the giving and receiving of reasons for actions within the
practice. Instead of adopting this pretense, therefore, a legal theorist should
approach the question of ‘what law is’ through the reasons of its practitioners to
understand what internal goods are presupposed in the functioning of the practice.
Conclusion
I have argued that the practice of law continues, whether in its focal or nonfocal sense, to have a necessary connection to morality. MacIntyre’s account of a
social practice is able to bring this connection out with greater precision and detail
78
This distinction also underlies the debate between Dworkin and Hart on whether the legal theorist
should adopt an external perspective to describe the practice or an internal perspective to engage with
the reasons for action of all participants: Dworkin (1998), 108-113
79 See note 74 above.
24
because it focuses our attention on those goods internal to the practice that
motivate cooperation for their achievement. These internal goods of legal practice
are associated with the external and internal morality of law. They provide the
motivational basis for practical reason within legal practice as a cooperative social
practice. Crucially, the distinction between these internal goods and other goods
external to legal practice, such as power, can provide important insight into why
non-focal instances of law should be seen as perversions in the sense that they
involve an instrumentalisation of law. The theory also elucidates an intelligible link
between the rule of law and both the thin but resilient conception of freedom as
independence, proposed by Simmonds, and the thicker conception of freedom as
dominion that can be achieved under focal instances of law.
Nevertheless, much still remains to be explored. In particular, I have only
touched on the problems associated with the institutional form of a practice being
the source of tension between the pursuit of internal and external goods. In relation
to the modern practice of law, this institutional form involves the apparatus of the
modern political state. There is, therefore, much to consider concerning the
relationship of the state to the practice of law. This will engage some controversial
aspects of MacIntyre’s political philosophy that point to the following question.80
To what extent can the modern state provide for a form of legal practice that can
support law in the focal instance? This question, posed for future reflection, is
critical for understanding how MacIntyre’s political philosophy relates to the
practice of law and, in particular, the extent to which our political order can
provide for a broader freedom as dominion or a more narrow freedom as
independence through the rule of law. In my opinion, the answer will lie
somewhere between the extremes, but a realistic reflection on this question will
also provide an important dialectic to test some aspects of MacIntyre’s political
philosophy.
Alasdair MacIntyre, ‘Politics, Philosophy and the Common Good’ (1997) in Knight (1998);
MacIntyre (1999), 130-135; Alasdair MacIntyre, ‘Is Patriotism a Virtue?’ in Derek Matravers and
Jonathan E. Pike (eds.), Debates in Contemporary Political Philosophy: An Anthology (Routledge,
2003); Knight (2007), 167-189; Thomas D’Andrea, “MacIntyre’s Wicked Practice Problem”,
unpublished engl trans of “MacIntyre e il problema della practica malvagia” (2004) Da Re and De
Anna 203; Keith Breen, “The State, Compartmentalization and the Turn to Local Community: A
Critique of the Political Thought of Alasdair MacIntyre” (2005) 10:5 The European Legacy: Toward
New Paradigms 485; Thomas Hibbs, “MacIntyre, Aquinas and Politics” (2004) 66:3 The Review of
Politics 357; Thomas Osborne, ‘MacIntyre, Thomism and the Contemporary Common Good’ (2008)
30 Analyse & Kritik 75; Mark Murphy, ‘MacIntyre’s Political Philosophy’ in Mark Murphy (ed.),
Alasdair MacIntyre (Cambridge University Press, 2003)
80
25
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