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. 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