Principled opportunism and natural law jurisprudence

It’s amazing how difficult it can be to make time for blogging. I’ve had a lot on, and frankly sometimes all I want to do after actually doing that stuff is … well … not very much. Hopefully I’ll free a little time up though (although frankly I seem to make this promise every time I make a post). Anyway, I want to finish off my thoughts on Schmitt, but first I’d talk a little bit about something that I’ve been thinking about for a while – namely the relationship between bourgeois natural law jurisprudence, and principled opportunism. This might seem a bit of an odd thing to do, but I actually think that the comparison can be theoretically productive, and helps us see what is useful for us in natural law jurisprudence.

So basically, what I want to argue is that principled opportunism (and the Marxist theoretical approach from which it derives), shares some similar presuppositions to natural law jurisprudence, but from these positions comes to a diametrically opposed practical/political standpoint. Hopefully what this can do is help us grasp some of the really interesting things about natural law jurisprudence (especially some of the more recent stuff) and further illuminate what principled opportunism might mean.

To be brief. Natural law jurisprudence tends to approach law as a specific form of social regulation, with its own identity and dynamics. Generally, natural law jurisprudence sees law as a form of regulation in which abstract, formal equality inheres. The next move, is to tie this social form to some kind of form of life. In Finnis, this form of life is one in which individuals are able to pursue diverse life paths (and thus their own ways of engaging in ‘objective goods’); in Simmonds, the form of law grants individuals a certain degree of ‘distance’; no matter how onerous the burden of law’s content, ones dittoes are not dependent on the arbitrary will of a sovereign, since this is always mediated through abstract, prospective rules that treat individuals as formally equal. In sum (and to be somewhat vulgar), these theories link the form of law with a form of life in which abstract individuals are able to pursue their own projects, viz. an idealised form of liberal capitalism (Simmonds in particular is a bit more complicated than this, but my general point is that law is tied to what one might call ‘liberty’).

The next step in this chain of reasoning is particularly interesting. Essentially, once law is tied to a form of life, this form of life is morally evaluated. Both Simmonds and Finnis (and to some degree one can include Fuller, Aquinas, Locke and even Hobbes in this) argue that this form of life is intrinsically morally valuable, inasmuch as it enables individuals to pursue their interests at some degree of distance from other individuals (etc.). In this respect, the form of law itself is intrinsically morally value, given that it is productive of abstract individual liberty. The brilliance of this move comes when it is juxtaposed to the problem of unjust content.

Essentially, given that the form of law is systemically morally good, the moral value of the legal form exists even when it expresses immoral content. For Simmonds this is because there is still a ‘distance’ between the rulers and the rules and for Finnis, this is because the form of law is supportive of a system of individual liberty. This gives rise to what Finnis calls a ‘collateral obligation’ to obey the law. Essentially, when one decides up whether or not to obey the law, the justice or injustice of its content is not the only factor to be taken into account, this has to be weighed against the intrinsic moral value of the legal form (which is produced by/produces an intrinsically moral form of life). Thus, the form of law is valuable, even while the content is variable. It is a case of form asserted against content.

The obvious interesting point from my perspective is the way in which the natural law approach dovetails with that of Pashukanis. Thus, Pashukanis identifies law with a specific form and ties it with a specific form of social life; which – in a less idealised form – is the same of that the natural law jurisprudes, capitalism. However, there is of course a crucial difference in these approaches, which Nigel Simmonds (who has made extensive and fascinating excursions into the Marxist tradition) sums up quite nicely (‘Between Positivism and Idealism’, (1991) 50 Cambridge Law Journal 308 :

The conservative view of law that I am defending has much in common with Marxism. Yet if differs from Marxism in the evaluation that it makes of law.
p.323

The crucial difference in the Marxist and natural law accounts of the legal form is how they evaluate law and the form of social life it is tied to. Obviously, Marxists are wont to evaluate capitalism of being composed of relations of exploitation and domination, and as a destructive and ultimately (hopefully!) transient phase of human life. I think the crucial move made by Marxists in this respect (and I have elaborated on it more here and here) is that the ‘form’ of capitalism free exchange is structurally tied up with a certain content; it’s not just a case then of the liberal form of capitalism being occasionally confronted with some nasty stuff; but rather that this form systematically throws up problems owing to the realisation of surplus value. Thus, domination, exploitation, class struggles etc. are always produced by the formal equality that characterises capitalism. Chris Arthur puts it rather excellently (in the introduction to the Ink Links Law and Marxism: A General Theory:

From a dialectical point of view a form is the form of its content, and one may be alarmed at the outset if one imagines that Pashukanis proposes to write a treatise on legal forms in abstraction from content. However, this would be a misunderstanding. In characterising law as a bourgeois form he clearly is relating law to a definition material content – the social relations founded on commodity exchange.
p.29

Thus, on this we can reverse the natural law position. The form of law is not something intrinsically valuable, but (if you’ll allow me) quite the contrary, the form embeds relations of exploitation and domination. And this brings us to principled opportunism, and its complete opposition to the collateral obligation. There, the form of law is invoked against unjust content; thus in spite of its content, the form may compel obedience. But in principled in opportunism the content of law is invoked against the ‘unjust’ (for want of a better word) form, and content may compel obedience (or more likely invocation), in spite of the form. In the collateral obligation, law is in principle valuable, in principled opportunism law is ‘in principle’ not, and as such should never be invoked per se.

Thoughts on Finnis

What’s quite weird about this blog is that when it went on ‘hiatus’, I was just about to start my Jurisprudence course. This meant that all of my wonderful observations on Anglo-American legal theory (to which the Cambridge course is rather sadly confined) didn’t get made. That being said I’m still here doing my LL.M., and surprisingly enough I’m doing Jurisprudence again! Strangely enough, one of my favourite books I studied in the course was that of the (Catholic) theorist John Finnis and his book Natural Law and Natural Rights[1]. What I really like about Finnis is the way that he problematises certain positivist assumptions about legal theory as well as their substantive conclusions.

One of the key assumptions of positivist legal theory is that what they are doing is a value-free exercise. Central to this is the notion that there is no ‘necessary’ connection between law and morality. Furthermore, this seems to manifest itself in a concern for the autonomy of legal theory (from moral theory but also from other theoretical frameworks). But Finnis notes that right from the outset this is simply not tenable, his point here is a very simple one, when we look at a social institution such as law there is a wealth of ‘factual’, historical data upon which we can draw. The question is how do we form ‘concepts’ from this mass of data. How and why do we choose to select some of these element and rate them as more important than other elements.[2] In some ways this mirrors Pashukanis’ position on legal theory – in order to find a ‘concept’ of law we need to find something which differentiates it as a social phenomenon.[3]

Finnis notes that although Hart may not make explicit reference to such a position, he nonetheless seems to succumb to it:

Hart’s description (‘concept’) of law is built up by appealing, again and again, to the practical point of the components of the concept. Law is to be described in terms of rules for the guidance of officials and citizens alike, not merely as a prediction of what officials will do. A legal system is a system in which ‘secondary’ rules have emerged in order to remedy the defects of a pre-legal regime comprising only ‘primary rules’. Law must have a minimum content of primary rules and sanctions in order to ensure the survival of the society or its members and to give them practical reason for compliance with it.[4]

Evidence for this can be found in Hart’s discussion of the ‘minimum content of natural law’[5] (for which there really is very little need) and his dismissal of Kelsen’s project as not capturing the ‘function’ of criminal law.[6] In place of such a theory Finnis suggests that in order to understand a social phenomenon such as law if we understand the ‘objective’ of the practice from the viewpoint of its participants:

A social science, such as analytical or sociological jurisprudence, seeks to describe, analyse, and explain some object or subject-matter. This object is constituted by human actions, practices, habits, dispositions and by human discourse...[T]he actions, practices, etc., can be fully understood only by understanding their point, that is to say their significance or importance, as conceived by the people who performed them, engaged in them etc.[7]

Therefore, in order to find the correct ‘distinguishing’ features of a social practice we need to find a ‘central case’ of the practice and a viewpoint to adopt.[8] Analytical positivism has largely opted to adopt an ‘internal point of view’ – something more than someone who acquiesces to the law purely out of fear – but Finnis argues this should be taken further. Instead, the viewpoint that must be taken is that of the ‘good’, ‘moral’ or ‘practicably reasonable’ man[9], which of course means that moral considerations come into play in the very selection of what features make a ‘concept’ of law.

There have been a number of responses to this. The standard legal positivist line on this is put forward by Leiter[10] and Kramer[11]. The basic argument goes something along the lines that we don’t need to use moral values to select pertinent features, instead we can use values like clarity, explanatory power etc. I don’t particularly like this response, as I don’t really think you can really select significant features. I think the firmer objection is simply to say that you only need to appeal to notions of ‘social function’ or human behaviour, which I don’t think we have to call ‘moral’. But actually, I think it has to go further, and this is where Pashukanis comes especially in handy. As any regular readers of my blog will know (chortle!) one of Pashukanis’ key observations is that ‘law’ has to be distinguished merely from ‘regulation’:

Comrade Stuchka, from our point of view, correctly identified the problem of law as a problem of a social relationship. But instead of beginning to search for the specific social objectivity of the relationship, he returned to the usual and formal definition‑although a definition now influenced by class characteristics. In the general formula given by Stuchka, law figures not as a specific social relationship but, as with all relationships in general, as a system of relations which corresponds to the interests of the ruling class and which protects it with organized force. Accordingly, within these class boundaries, law as a relationship is indistinguishable from social relations in general, and Comrade Stuchka is therefore not in a position to answer Professor Reisner's venomous question: how do social relationships become legal institutions, or how is law converted into itself?[12]

So, in order to ‘find’ a ‘concept’ of law, it is not enough to merely look at law’s function of social regulation. Therefore, Pashukanis – quite correctly argues – that we have to go further. We have to say that law is a specific type of social regulation. This notion of a specific type leads us onto the notion of law being a specific form or character assumed by social regulation:

The situation is no different with the second apparent tautology: law regulates social relationships. For if we exclude a certain anthropomorphism inherent in this formula, then it is reduced to the following proposition: under certain conditions the regulation of social relationships assumes a legal character. Such a formulation is undoubtedly more correct and, most importantly, more historical.[13]

But, once we talk about law being a specific type of regulation, we need to understand what the specific form of regulation is. It is perhaps here that Finnis attempts to spring his trap – surely this must be where we make a moral appeal. Well, I would say no. Instead I would argue with Pashukanis that we need to understand what types of social relationships generate legal regulation, and this requires a broader historical and theoretical approach. We have to situate the emergence of the legal form in its material and historical context. If we can find sufficient historical and social connections then we will be able to select significant features for our legal form.

Pashukanis argues that there is a historical connection between the commodity form and legal form. Thus, when disputes arise within the commodity-form, a form of social regulation has to arise to regulate such disputes. But since commodity owners are formally equal, abstract individuals this regulation must recognise these facts. Hence law is a form of social regulation between abstract individuals – this is the same conclusion that Finnis comes to (although he argues it morally – individual, autonomous life plans and all that jazz[14]), without resorting to the same form of moral argument. I would argue that Finnis’ approach might come unstuck for a number of reasons. Firstly, it doesn’t answer the question of why a form of regulation arises to serve a moral purpose. Secondly, his reliance of ‘human goods’ tends to ignore where these good have come from. If it is the case that they are a priori then law (as he describes it) would have always existed – it didn’t. If they come about through human practice (and Nigel Simmonds makes an excellent argument then they have), then this surely commits Finnis to the same sociological inquiry Pashukanis makes.

Thus, I would agree with Finnis to an extent. Clearly our formation of ‘concepts’ cannot take place in an isolated vacuum. But, neither – does it seem – do our guiding ‘values’ in this respect have to be moral. Pashukanis noted of economics that ‘[e]very economic theory worthy of the name must have its basis in some sociological conception’[15], I think this holds good for legal theory too – a sociological conception is what gives shape to the categories of analysis. But I would go further, and argue that any theory of necessity makes implicit sociological claims, precisely because of the way that concepts form. This is why the Marxist approach is so useful, because it honestly and openly makes it historical claims, and understands that the presuppositions of its concepts are not historically fixed.

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[1] 2005, Oxford: Clarendon Press

[2] Ibid, p.4

[3] General Theory of Law and Marxism, p.62

[4] Finnis, op cit, p.7

[5] Hart, The Concept of Law, 1994, Oxford University Press, p.193-200

[6] Ibid, p.39

[7] Finnis, op cit., p.3

[8] Ibid, p.9-18

[9] Ibid., p.16

[10] Leiter, Beyond the Hart Dworkin Debate, (2003) 48 American Journal of Jurisprudence 17

[11] Kramer, In Defence of Legal Positivism, 1999, Oxford: Clarendon Press

[12] Pashukanis, Selected Works, p.62

[13] Ibid, p.58

[14] Finnis, op cit., p.59-134

[15] Pashukanis, op cit, p.244