Egypt's Freedom Movement

By Scott MacLeod* for the Los Angeles Times (January 31, 2011)

[….] “I am hunkered down in my apartment with the cat. Outside, gunshots ring out through the night. My local supermarket was looted and burned, and our landlord, Tareq, came by Saturday to say that he and other neighbors have barricaded our street and formed a private militia to protect us from the anarchy.

Yet I have never been more optimistic about Egypt’s future.

Whatever happens next — and there is still plenty of time for the government to do something stupid — this youth-led revolt on the Nile will somehow prevail. I believe we are witnessing the Middle East’s equivalent of Berlin in 1989. A profound political transformation is underway, and in the end it is likely to result, finally, in a legitimate government of the people for the largest Arab nation and create a model for the region.

As an American journalist who has lived and traveled in the Middle East for 30 years, I am dumbfounded — and dismayed — that President Obama hasn’t fully grasped what is happening. I can’t understand why he has hesitated to fully embrace Egypt’s freedom movement.

On June 4, 2009, I was at Cairo University when Obama told Egyptians that he sought a new beginning between the United States and Muslims around the world: “I do have an unyielding belief,” he said, “that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed.” He now has a chance to stand with people who are speaking their mind and demanding a say in their governance.

Change is seldom orderly. But Obama needn’t worry that what is happening in Egypt will bring lasting instability. Nor is it likely to usher in an Iranian-style Islamist regime.

This push to transform Egypt is coming from a broad nationalist movement. I know officials in the Mubarak regime whose sons are in the protests. My students have taken to the streets, as have the children of my friends. These are ordinary people, inspired by a simple desire for freedom. The best insurance of stability in relations between Egypt and the United States is a good relationship between our government and a democratic Egyptian government supported by the people.

The popular revolt we are witnessing is largely the work of the young. More than half of Egypt’s population is under 25, and they long for a government that represents them and allows them basic freedoms of speech and movement. The Muslim Brotherhood joined the protest late in the game. Though it is the largest opposition group, it by no means enjoys overwhelming support, and its leaders are for the most part moderate and responsible. The favorite slogan of the protesters is “Game Over,” not “Allahu akbar,” Arabic for “God is great.” And though most Egyptians resent U.S. policies in the Middle East, there has been no notable anti-American sentiment in the protests.

Yes, there have been looting and destruction. But that was inevitable in a country with so much economic desperation and anger toward those in power. In the coming weeks and months, I have no doubt Egypt will move forward in a more orderly way. Its 80 million people are proud of their country, both of its extraordinary ancient civilization and its distinctive modern culture. They celebrate national symbols such as the incomparable singer Umm Kulthum; immortal writers such as Taha Hussein and Naguib Mahfouz; and dazzling athletes such as Mohamed Aboutrika, star of Cairo’s beloved Al Ahly football club. And if Nobel Peace Prize winner Mohamed ElBaradei has been scorned by Mubarak’s regime, that has only made him more of a hero to Egyptians. Neither Egyptians nor their leaders are radical or xenophobic. Their patience and good humor are legendary — and unfailingly noted by the more than 10 million foreign tourists a year who encounter their warm hospitality.” [….]

*Scott MacLeod is a professor at the American University in Cairo and managing editor of the Cairo Review of Global Affairs. He was Time magazine’s Middle East correspondent from 1995 to 2010.

The Contemporary Arab World: A Select Bibliography

In light of recent and ongoing protests and uprisings on behalf of democracy and economic justice in the Arab world, conspicuously in the two notorious "bully" praetorian regimes (Henry and Springborg 2001), Tunisia and Egypt, I thought I'd post this bibliography for "The Contemporary Arab World."

The Life and Thought of Mahatma Gandhi: Recommended Reading

There is an enormous amount of literature on Mohandas K. (‘Mahatma’) Gandhi, and Gandhi’s own writings themselves have been collected in ninety plus volumes. So I thought it would help to recommend a comparatively short reading regimen, culling what I immodestly think is the crème de la crème (forgive the mixed metaphor in the name of alliteration), although I’ve hardly come close to reading all of the available literature. By way of background, readers fairly innocent of most-things-Indian (or ‘Indic’) should consult, first, A.L. Basham’s classic, The Wonder that was India.... (3rd ed., 1967), followed by the works of the historian Stanley Wolpert, Gerald J. Larson’s India’s Agony Over Religion (1995), Sunil Khilnani’s The Idea of India (1998), and Ramachandra Guha’s India after Gandhi: The History of the World’s Largest Democracy (2007). The brilliant economist Amartya Sen provides us with “a profound and stimulating collection of essays” (William Dalrymple) that “smashes quite a few stereotypes and places the idea of India and Indianness in its rightful, deserved context” (Soumya Bhattacharya), in The Argumentative Indian: Writings on Indian History, Culture and Identity (2005). Perhaps the only Indian in the twentieth century worthy of close comparison to Gandhi is Rabindranath Tagore, with whom Gandhi had several disagreements and “debates,” as Sen explains, “Tagore greatly admired Gandhi but he had many disagreements with him on a variety of subjects, including nationalism, patriotism, the importance of cultural exchange, the role of rationality and of science, and the nature of economic and social development.” So in addition to Sen’s presentation of Tagore’s little-known side of these arguments, see Krishna Dutta and Andrew Robinson, Rabindranath Tagore: The Myriad-Minded Man (1995).

I recommend, well short of tackling the many volumes of his collected writings, the manageable selection edited by Raghavan Iyer: Moral and Political Writings of Mahatma Gandhi, 3 Vols. (1986).* There’s also a one volume edition for those who seek something yet shorter: Raghavan Iyer, ed., The Essential Writings of Mahatma Gandhi (1993).

Among the earlier biographies, Louis Fischer’s The Life of Mahatma Gandhi (1950), stands apart, and of the more recent attempts, I would select Wolpert’s Gandhi’s Passion: The Life and Legacy of Mahatma Gandhi (2001). On the psychological front, the most ambitious if not most controversial account is Erik H. Erikson’s Gandhi’s Truth: On the Origins of Militant Nonviolence (1969). In the end, I remain partial to Judith Brown’s Gandhi: Prisoner of Hope (1989).

On Gandhi’s religious and spiritual beliefs, see Margaret Chatterjee’s Gandhi’s Religious Thought (1983). More particularly, and because his unconventional (to put it mildly) interpretation of the Gita came to have such an enormous influence on his spiritual praxis, see J.T.F. Jordens, “Gandhi and the Bhagavadgita,” in Robert Minor, ed., Modern Interpreters of the Bhagavad Gita (1986): 88-109. Although perhaps difficult to track down, see too Mahadev Desai’s The Gospel of Selfless Action or The Gita According to Gandhi (Translation of the original in Gujarati with introduction and commentary) (1946). Those readers with little knowledge of Hinduism would benefit from Wendy Doniger’s The Hindus: An Alternative History (2009).

Gandhi was not a systematic political thinker, yet his moral and political philosophy is no less original and provocative, deserving of serious consideration: see Joan Bondurant’s Conquest of Violence (1965), Bhikhu Parekh’s Gandhi’s Political Philosophy: A Critical Examination (1989), as well as his Colonialism, Tradition and Reform (1989), B.R. Nanda’s Gandhi: Pan-Islamism, Imperialism, and Nationalism in India (1989) and, especially, Raghavan Iyer’s* nonpareil study, The Moral and Political Thought of Mahatma Gandhi (1st ed., 1973; 2nd ed., 1983).

Gandhi’s nonviolent politics are well-treated in Gene Sharp’s Gandhi as a Political Strategist… (1979) and Dennis Dalton’s Mahatma Gandhi: Nonviolent Power in Action (1993). (I plan to post a select bibliography at Ratio Juris in the near future on ‘conflict resolution and nonviolence’).

Gandhi’s economic ideas are fruitfully conceptualized under the theory of “trusteeship.” See, for example, Iyer’s “Gandhian Trusteeship in Theory and Practice,” a short essay published by the Institute of World Culture, Santa Barbara, CA: Concord Grove Press, 1985. A somewhat uneven but nonetheless worthwhile volume is edited by Romesh Diwan and Mark Lutz: Essays in Gandhian Economics (1985; the first edition was published by the Gandhian Peace Foundation, New Delhi, but available in this country since 1987 from the Intermediate Technology Development Group of North America, New York). Although I’ve yet to read it, B.N. Ghosh’s Gandhian Political Economy: Principles, Practices, and Policy (2007), looks inviting (yet published by Ashgate at an exorbitant price).

For an examination of some of the more trenchant as well as facile criticisms of this or that aspect of Gandhi’s life and thought, see B.R. Nanda’s Gandhi and His Critics (1985).

*Full disclosure: Raghavan was one of my undergraduate teachers for political philosophy and his wife, Nandini, was one of my teachers in Religious Studies. Nandini and the Iyer’s son, the writer Pico Iyer, remain close friends (indeed, Nandini is my best friend).

Readers are invited to cite additional titles they deem noteworthy in the comments.

Please note: I have added a few items since this was first posted this morning.

Simone de Beauvoir in Harlem, 1947

There are myriad ways one might celebrate today’s holiday in honor of Martin Luther King, Jr. On my Facebook page, for example, I suggested we learn about—or recall—the other remarkable leaders of the civil rights movement, some of whom were mentors to King and others of his generation, establishing institutions and informal communication networks that served as the socio-cultural and political seedbed for the germination and later flourishing of the civil rights movement. I mentioned in particular such individuals as Bob (Robert Parris) Moses, Ella Josephine Baker, and Fannie Lou Hamer, among those ably introduced in Robert Payne’s brilliant book, I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (1995). I also had the impudence to ask that we take time to recall the life and work of Malcolm X as well, recommending Eugene Victor Wolfenstein’s Malcolm X and the Black Revolution (1981). Indeed, there’s a work that offers a provocative comparison of the lives and ideas of Malcolm X and King, James Cone’s Martin & Malcolm & America: A Dream or a Nightmare (1991). Alas, both the prize-winning biographer of Fannie Lou Hamer, the historian Kay Mills, and the (post)Freudo-Marxist social theorist and psychoanalyst Wolfenstein, recently passed away.

Here I thought I’d do something different and share a few passages from Simone de Beauvoir’s (1908-1986) journal that detailed her thoughts and feelings upon venturing into Harlem during a visit to America. Beauvoir came to the States in January of 1947, keeping a fairly “detailed diary of her observations which was published in France in 1948 as L’Amérique au jour le jour” and to little notice several years later in England, and in English, as America Day by Day. The book was published (by the University of California Press) yet again with a new translation by Carol Cosman in 1999 and an inviting foreword (it first appeared in the New York Times Book Review in 1996) by one of our nation’s best and more prolific historians, Douglas Brinkley. Beauvoir was by now a well-known existentialist philosopher and writer with a public identity as a cosmopolitan French intellectual tied to yet distinct from her lifelong companion, Jean-Paul Sartre. She is rightly regarded as one of the seminal theorists of contemporary feminism.

Brinkley writes that,

“with the passage of time, America Day by Day emerges as a supremely erudite American road book—that distinctive subgenre based on flight of fancy rather than flights from economic hardship, as in John Steinbeck’s Grapes of Wrath [1939]. In broader sociological terms, her critique outpaces William Least-Heat Moon’s Blue Highways: A Journey into America [1983]. In the realm of pure prose style, it easily transcends Henry Miller’s The Air-Conditioned Nightmare [1945]. And, for my money, in the field of European highbrow loathing of the cruder aspects of our democratic experiment, it is preferable to Charles Dickens’s haughty American Notes for General Circulation [1842]. [….]

A reader is struck not only by the meticulous descriptive passages on American history and geography but also by Beauvoir’s ability to encapsulate our national psyche (‘Optimism is necessary for the country’s social peace and economic prosperity’) and to comment so deftly on its shortcomings (‘even people of goodwill…refuse to articulate clearly the current conflict between justice and freedom, and the necessity of devising a compromise between these two ideas; they prefer to deny injustice and the lack of freedom’). [….]

Clearly a voyeur of America’s transient underbelly, Beauvoir’s able, like George Orwell in Down and Out in Paris and London [1933], to penetrate the haze and blue smoke of our nation’s tenderloin districts deeply enough to offer detached insights into desolation row. In Chicago with [Nelson] Algren as her guide, she learns firsthand about the world of morphine addicts and petty thieves, murderous gangsters, and midnight cops. ‘America is a box full of surprises,’ she writes, intoxicated by her walks on the wild side. [….]

Beauvoir’s peripatetic journey by automobile, train, and Greyhound bus took her from coast to coast and back, and illuminating sections of the memoir are devoted to Hollywood, the Grand Canyon, Reno, New Orleans, Las Vegas, and San Antonio. Always amused and exhilarated by the lapdog friendliness of urban and rural folk alike, she is also flabbergasted that these same good-natured people embody the volatile, schizophrenic mixture of ‘strictness and hypocritical license.’ An eternal rebel, she has an uncanny eye for the shallow extravagances of American culture and an abolitionist’s rage at the evil of segregation south of the Mason-Dixon line. While San Francisco and Chicago are celebrated in America Day by Day, other cities get scorched: ‘Williamsburg is one of the sorriest shams to which I’ve ever fallen victim,’ or ‘I dearly hope I’m never fated to live in Rochester.’ [….]

For women, and men, who want to experience vicariously Jack Kerouac’s open road with less machismo romanticism and more existential savvy, America Day by Day, hidden from us for nearly fifty years, comes to the reader like a dusty bottle of vintage French cognac, asking only to be uncorked.”

From American Day by Day:

“Of course, I want to get to know Harlem. It’s not the only black neighborhood in New York. There’s an important black community in Brooklyn, three or four areas in the Bronx, another called Jamaica in Queens, and few more on the city’s outskirts. In New York itself one finds neighborhoods here and there where black families live. Until 1900, other than the one in Brooklyn, the most important black community in New York was situated near West Fifty-seventh Street. Harlem’s apartment buildings were originally built for white tenants, but transportation was inadequate at the beginning of the century, and landlords had difficulty renting apartments in the eastern end of the district. At the suggestion of a black man, Philip A. Payton, who was involved in the rental business, blacks were offered the apartments on 134th Street. Two buildings were filled this way, and soon more. At first, the whites didn’t perceive this invasion of black people; when they tried to stop it, it was too late. Blacks gradually rented all the available apartments and began to buy the private houses that were going up between Lenox and Seventh Avenue. Whites then felt justified in moving; as soon as one black family was spotted in a block of buildings, all the whites fled as if they were running from the plague. The blacks soon took over the whole district. Social and civic centers were formed; a black community took shape. Harlem expanded spectacularly after 1914.

Those among the French who get down on their knees to worship all-powerful America adopt all its prejudices even more obsequiously than Americans do. One of them says to me, ‘If you like, we’ll go through Harlem by car; you can go through Harlem by car, but you must never go on foot.’ A bolder Frenchman declares, ‘If you’re determined to see Harlem, in any case stick to the larger avenues. If something happens, you can always take shelter in the subway. But above all avoid the small side streets.’ And someone else tells me with a shiver that at dawn some whites were found in the gutter with their throats cut. In the course of my life, I’ve already come across so many places where right-thinking people declare you could not go that I’m not too impressed. I deliberately walked toward Harlem.

I walk toward Harlem, but my footsteps are not quite as carefree as usual; this isn’t just a walk but a kind of adventure. A force pulls me back, a force that emanates from the borders of the black city and drives me back—fear. Not mine but that of others—the fear of all those whites who never take the risk of going to Harlem, who feel the presence of a vast, mysterious, and forbidden zone in the northern part of their city, where they are transformed into the enemy. I turn the corner of one avenue and I feel my heart stop; in the blink of an eye, the landscape is transformed. I was also told, ‘There’s nothing to see in Harlem. It’s a corner of New York where people have black skin.’ And on 125th Street I indeed discover the movie houses, drugstores, stores, bars, and restaurants of Forty-second or Fourteenth Street; but the atmosphere is as different as if I had crossed a chain of mountains or the sea. Suddenly, there’s a swarm of black children dressed in bright shirts of red-and-green plaid, students with frizzed hair and brown legs chattering on the sidewalks. Blacks sit daydreaming on the doorsteps, and others stroll with their hands in their pockets. The open faces do not seem fixed on some invisible point in the future but reflect the world as it is given at that moment, under this sky. There is nothing frightening in all this, and I even feel a new kind of relaxed gaiety that New York hasn’t yet given me. If I suddenly came upon Canebière [in southern France] at the corner of rue de Lille or Lyon, I would have the same pleasure. But the shift from my usual surroundings is not the only vivid aspect. Nothing is frightening, but the fear is there; it weighs on this great popular festivity. Crossing the street is, for me, like crossing through layers and layers of fear filling those bright-eyed children, those schoolgirls, those men in light suits, and those leisurely women.

One Hundred Twenty-fifth Street is a border—there are still few whites in evidence. But on Lenox Avenue, not a face that isn’t brown or black. No one seems to pay attention to me. It’s the same scenery as on the avenues of [downtown] Manhattan, and these people, with all their indolence and gaiety, seem no more unlike the inhabitants of Lexington Avenue than the people of Marseilles seem unlike the residents of Lille. Yes, one can walk on Lenox Avenue. I even wonder what it would take to make me flee, screaming, toward the protective entrance of the subway. It seems to me I would have as much difficulty provoking such an attack as I would provoking murder or rape in the middle of Columbus Circle in broad daylight. There must be some image of orgies going on in the heads of right-thinking people; for me, this broad, peaceful cheerful boulevard does not encourage my imagination. I glance at the small side streets: just a few children, turning on their roller skates, disturb the lower-middle class calm. They don’t look dangerous.

I walk on the big avenues and in the small side streets; when I’m tired, I sit in the squares. The truth is, nothing can happen to me. And if I don’t feel entirely secure, it’s because of that fear in the hearts of people who are the same color as I am. It’s natural for a wealthy bourgeois to be afraid if he ventures into neighborhoods where people go hungry: he’s strolling in a universe that rejects his and will one day defeat it. But Harlem is a whole society, with its bourgeois and its proletariat, its rich and its poor, who are not bound together in revolutionary action. They wan to become part of America—they have no interest in destroying it. These blacks are not suddenly going to surge toward Wall Street, they constitute no immediate threat. The irrational fear they inspire can only be the reverse of hatred and a kind of remorse. Planted in the heart of New York, Harlem weighs on the conscience of whites like original sin on a Christian. Among men of his own race, the American embraces a dream of good humor, benevolence, and friendship. He even puts his virtues into practice. But they die on the borders of Harlem. The average American, so concerned with being in harmony with the world and himself, knows that beyond these borders he takes on the hated face of the oppressor, the enemy. It’s this face that frightens him. He feels hated; he knows he is hateful. This thorn in his conciliatory heart is more intolerable than a specific external danger. There are fewer crimes in Harlem than on the Bowery; these crimes are only symbolic—not symbolic of what might happen but of what is happening, what has happened. Minute by minute the men here are the enemies of other men. And all whites who do not have the courage to desire brotherhood try to deny this rupture in the heart of their own city; they try to deny Harlem, to forget it. It’s not a threat to the future; it’s a wound in the present, a cursed city, the city where they are cursed. It’s themselves they’re afraid to meet on the street corners. And because I’m white, whatever I think and say and do, this curse weighs on me as well. I dare not smile at the children in the squares; I don’t feel I have the right to stroll in the streets where the color of my eyes signifies injustice, arrogance, and hatred.

It’s because of this moral discomfort, not timidity, that I’m happy to be escorted this evening to the Savoy by Richard Wright; I’ll feel less suspect. He comes to fetch me at the hotel, and I observe that in the lobby he attracts untoward notice. If he asked for a room here, he would surely be refused. We go eat in a Chinese restaurant because it’s very likely that they wouldn’t serve us in the uptown restaurants. Wright lives in Greenwich Village with his wife, a white woman from Brooklyn, and she tells me that every day that when she walks in the neighborhood with her little girl, she hears the most unpleasant comments. And what’s more, while we are looking for a taxi, men dart hostile looks at this black man with two white women. There are drivers who deliberately refuse to stop for us. After this, how could I claim to mingle peacefully in the life of Harlem? I feel myself stiffen with a bad conscience. While Wright buys tickets at the door of the Savoy, two sailors speak to Ellen and me, the way all sailors the world over speak to women at the doors of dance halls. But I’m more embarrassed than I’ve ever been before. I’ll have to be offensive or ambiguous—my very presence here is equivocal. With a word, a smile, Wright sets everything in order. A white man couldn’t have found just this world, this smile, and I know that his intervention, so simple and natural, will only aggravate my embarrassment. But I climb the stairs with a light heart: this evening Richard Wright’s friendship, his presence at my side, is a kind of absolution.”

A Democratic Revolution in Tunisia?

For the latest and best analyses and comments on recent events in Tunisia, see Juan Cole's post, "The First Middle East Revolution since 1979," Karima Bennoune's post at IntLawGrrls, "North African People Power," and Marc Lynch, "The Political Economy of 'Democracy Promotion,'" at the New Left Project.

In addition to the links in Bennoune's post above, see this article from Middle East Report (205: October-December, 1997), "Authoritarianism and Civil Society in Tunisia."

Update from Al Jazeera: "Ben Ali flees to Saudi Arabia"

Second Update: As to why the heading for this post took the form of a question, see Cole's latest comments, "Tunisia between Democracy and Anarchy."

[cross-posted at ReligiousLeftLaw.com]

Third Update: "Government of National Unity or Tanks in the Streets?"

Looking Afresh at Hobbes’s Moral & Political Philosophy

Having recently read S.A. Lloyd’s two remarkable books on Hobbes’s moral and political philosophy, namely, Ideals as Interests in Hobbes’s Leviathan: The Power of Mind over Matter (1992)* and Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (2009), as well as the late Perez Zagorin’s Hobbes and the Law of Nature (2009), I was inspired to look afresh at Hobbes’s Leviathan (De Cive and Behemoth will come later). While there’s much I’d like to share with readers about what I’ve learned, including material that may not be well-known or appreciated or may simply be misunderstood, I’ve selected a couple of passages for reflection. Perhaps some readers will be prompted to read Hobbes for themselves, yet again or for the first time. And should you want the expertise of others to guide and assist your efforts, one would be hard-pressed to find more able scholars than Lloyd and Zagorin.

“The Laws of Nature…[are] contained in this one Sentence, approved by all the world, ‘Do not that to another, which thou thinkest unreasonable to be done by another to thy self.’”—This is of course a negative formulation of the Golden Rule, on which there is a fair amount of literature but little of which is of high quality. For perspicacious treatments, I suggest one consult Jeffrey Wattles’ The Golden Rule (1996), Anna Wierzbicka’s discussion in What Did Jesus Mean? Explaining the Sermon on the Mount and the Parables in Simple and Universal Human Concepts (2001): 191-202, and Neil Duxbury’s “Golden Rule Reasoning, Moral Judgment and Law,” Notre Dame Law Review, 84 (2009): 1529-1605.

“[I]f the Soveraign employ a Publique Minister, without written Instructions what to doe; he is obliged to take for Instructions The Dictates of Reason; As if he make a Judge, the Judge is to take notice, that his sentence ought to be according to the reason of his Soveraign, which being always understood to be Equity, he is bound to it by the Law of Nature…. All which Instructions of naturall Reason may be comprehended under one name of Fidelity, which is a branch of naturall Justice.”

“The unwritten Law of Nature, though it be easy to such, as without partiality, and passion, make use of this naturall reason, and therefore leaves the violators thereof without excuse; yet considering there be very few, perhaps none, that in some cases are not blinded by self love, or some other passion, it is now become of all Laws the most obscure; and has consequently the greatest need of able Interpreters.”

“The things that make a good Judge, or good Interpreter of the Lawes, are, first, A right understanding of that principall Law of Nature called Equity; which depending not on the reading of other mens Wrongs, but on the goodnesse of a mans own naturall Reason, and Meditation, is presumed to be in those most, that have had most leisure, and the most inclination to meditate thereon. Secondly, Contempt of unnecessary Riches and Preferments. Thirdly, To be able in judgement to devest himselfe of all feare, anger, hatred, love, and compassion. Fourthly, and lastly, Patience to heare, diligent attention in hearing; and memory to retain, digest and apply what he hath heard.”

Hobbes, Thomas (Richard Tuck, ed.). Leviathan. Cambridge, UK: Cambridge University Press, 1991.

* I discussed Lloyd’s first book on this blog here, here, and here.

[cross-posted at ReligiousLeftLaw.com]

Natural Law “Externalism” v. Law as a Moral Idea

In a recent paper posted at SSRN, “Natural Law Internalism,” Thom Brooks introduces what he argues is a novel interpretation of the natural law tradition found in the work of G.W.F. Hegel. To enable us to appreciate the creative difference between Hegel’s natural law theory with both classical law natural theories as well as their modern counterparts, Brooks suggests we make the following distinction:

“Natural lawyers defend standards that are external to the law in order to survey the merits of law. Call these accounts theories of natural law externalism. Hegel offers a very different account where we survey the merits of law through a standard that is internal to law. This essay will explain Hegel’s natural law internalism and whether it marks an advance on existing natural law accounts. I will argue that Hegel offers us a novel understanding of natural law that is compelling, but ultimately unstable and problematic.”

Brooks proceeds to discuss and outline precisely what he means by “natural law externalism,” summarized as follows:

“Classical natural law externalism then might be said to adhere roughly
to five different criteria in its classic formulation:

1. We can distinguish between ‘law’ and ‘true’ law.
2. We can make this distinction by the standard of a standpoint of justice.
3. Law is more ‘true’ the closer is coheres with a standpoint of justice.
4. The standpoint of justice is external and applied in our normative
assessment of law.
5. ‘True’ law is universally and eternally true.”

Modern natural law likewise “externalist” in the above sense, hence there is a “common similarity: all member theories identify a normative criteria external to law and employ it in their assessments of law and legal systems.” And now the contrast class, first exemplified, it is argued, by Hegel:

“This family claims that the normative criteria by which we might assess and evaluate law and legal systems is to be found within the laws themselves, not external to them. This family is natural law internalism. Hegel’s legal philosophy is perhaps the first example of natural law internalism, although there are other more recent examples as well.”

In a note, Brooks cites Ronald Dworkin’s theory as a modern descendant of this family.

I’m not here concerned with the interpretive cogency or argumentative soundness of Brooks’ account of Hegel’s natural law theory (Brooks is a devoted scholar of Hegel’s work, so we have ample presumptive reason to benefit from his analysis), even less with whether or not it is true that Hegel’s natural law theory “is compelling, but ultimately unstable and problematic.” What does get my attention is the aforementioned characterization of the majority of classical and modern natural law theories as “externalist,” in particular, the claim that our standards of assessment, with regard to justice or, say, moral principles, are “external” to our understanding of the law in general or even to the legal system itself. What I find troubling or at least misleading about this description is that it serves to drive a wedge between our understanding and assessment of law qua law, and our understanding of justice. In other words, the conceptual and normative criteria brought to bear in explicating law, moral values, and justice in particular are intimately related to each other in much of the natural law tradition. To the extent that this is in fact the case, the “externalist” picture or metaphor fails to do justice to the role of reason, to moral intuition, and to moral values and principles generally common to both law and justice. In short, I think the internalist/externalist description of natural law theory is unavailing, a conclusion that, in some respects, places Hegel in closer proximity to the tradition(s) of classical and modern natural law theory, although I’m inclined to agree with Brooks that Hegel’s natural law theory remains rather peculiar in light of that tradition (Hobbes is likewise an anomalous natural law theorist, at least if we agree in the main with the recent and respective arguments of S.A. Lloyd and Perez Zagorin).

To explain why the “externalist” picture is misleading, I’ll rely largely on Nigel Simmond’s recent book, Law as a Moral Idea (2007), as well as, to a less extent, a recent argument by Larry May in his Crimes Against Humanity: A Normative Account (2005) (a work that proffers, by my lights, a more than plausible account of the role of jus cogens norms in international law, one not wholly beholden to a ‘consensually-based custom(s)’ account of their justification, permitting them to be universally binding in a way such accounts are not). In so doing, I hope to draw readers to the works of both Simmonds and May (the latter having recently completed a remarkable four volume series dealing with the morally normative foundations of international criminal law). Because Plato is arguably the first natural law theorist, or at least foreshadows natural law theory, I’ll say a few things about Plato’s understanding of the relation between the Forms (be it the Good in general or justice in particular) and law. To be clear, my primary purpose is to introduce the general arguments of May and especially Simmonds insofar as they have bearing upon natural law theory, not so much to critique Brooks’ argument in toto, so perhaps the motivation or underlying rationale behind the characterization of most of the classical and modern natural tradition as “externalist” is salvageable, given a particular stipulative or theoretical explication of the “externalist/internalist” distinction in a way that accommodates the natural law (or natural law-like) reasoning of Simmonds and May. With apologies to Brooks, I’ve thus invoked the terms of his paper as an excuse to introduce (i.e., give a fair hearing to) rather unfashionable arguments in the philosophy of law. The characterization natural law theory as “externalist” (owing to its criteria for assessment of law’s justice or conformity with particular moral principles and values) fails to accord sufficient appreciation of the conceptual and normative ties intrinsic to our comprehension of what law in fact is (conceptually, institutionally, and so forth) from the vantage points provided by natural law theory, as Simmonds and May enable us to see. This is true if only because the kinds of questions raised here are of the same type, if only at different levels of abstraction and determination, as those raised in our reflections on the nature of law and the purposes of the rule of and the legal system. And of course the topics, questions and answers are intimately bound up with each other. In other words, philosophical reflections on law and natural law, our normative conceptions, as well as our moral standards and criteria of evaluation or assessment are in possession of strong genetic family resemblance to each other, a fact obscured by the externalist/internalist distinction.

The “externalism/internalism” distinction seems to assume that we should divorce our analytical and conceptual enterprise from our normative endeavors (at topic about which Hegel has much to say!), thus justice is classified as entailing an “external” standpoint when in fact it is intrinsic to our conceptual understanding of law qua law, at least in the natural law tradition wherein law is, in Nigel Simmond’s felicitous phrase, and first and foremost, a “moral idea.” In other words, law as such possesses, by definition as it were, an intrinsic moral aspiration and thus to the extent it falls short of that aspiration, it fails to serve its fundamental function as law. In Simmond’s words, “an inquiry into law’s nature therefore requires us to draw upon our moral understanding” (Simmonds 2007: 4). An “externalist” perspective assumes a largely instrumentalist conception of law in the first instance, a conception that natural law theorists would deny, without denying that law often does function in largely instrumentalist fashion in the legal system. The possibility of a logical distinction between our description of the “idea of law” and our normative appreciation of the value of the “rule of law” should not license an untenable conceptual and moral divide in which law as legal practice is separate from law as collective moral aspiration. Law is therefore an intellectual archetype analogous to a Platonic Form (as understood by T.K. Seung or Iris Murdoch or Francisco Gonzalez or Christopher Bobonich) “to which actual instances of law merely approximate to various degrees,” in which case, “the idea of law might provide both the general criterion whereby instances of law count as such, and a guiding ideal by reference to which all such instance ought morally to be judged” (Simmonds: 52). The ideal polis or State (e.g., the Republic or the laws for Magnesia in the Laws) thus shows how the Form of Justice might or can be realized in concrete circumstances. Despite their ideal normative features, such utopian constructions invariably reveal sensitivity to, or are reflective of, time and place. At the same time, they also reveal the sundry strengths and weaknesses or idiosyncrasies (philosophical, psychological, what have you) of their authors (cf. the normative conceptual constructions or ‘Euclidean models’ of Gandhi’s ideal polity or Rama Rajya, which invoked such ideal formulations as satya and ahimsa, satyagraha, swaraj, sarvodaya, nai talim, swadeshi, and gram rajya). Betwixt and between the intuited Forms, to which every adult with the capacity to reason has some access to, however dim or inchoate, and which are too abstract and indeterminate to function as direct normative standards and actual polities or States and their laws, are those utopian constructions (in ‘words’ or discourse) that draw upon reason (and methods like ‘reflective equilibrium’) in formulating normative criteria for assessing the degree to which our laws embody or instantiate the Form(s). These are not to be understood as architectonic blueprints for our legal systems in the sense that they represent or require definitive realization or concretization (on the order, say, of Hegelian Sittlichkeit, in which case there is no gap between Sollen and Sein). The apex of morality—or justice or the Good—as symbolized by the Forms, remain relevant in spite of the fact that it may never be wholly instantiated or embodied, indeed, that accounts for its continuing relevance as a normative standard, its ongoing function as the intuitive foundation for our utopian constructions. Assuming that the rule of law is integral to any plausible conception of a good political order, William Galston here fills out the role of utopian constructions that “mediate” between our Forms and actually existing legal systems (not unlike the ‘middle axioms’ of Sidgwick):

“Utopian thought attempts to specify and justify the principles of a comprehensively good political order. [….] Whatever their basis, the principles of the political good share certain general features:

· First, utopian principles are in their intention universally valid, temporally and geographically.
· Second, the idea of the good order arises out of our experience but does not mirror it in any simple way and is not circumscribed by it. Imagination may combine elements of experience into a new totality that has never existed; reason, seeking to reconcile the contradictions of experience, may transmute its elements.
· Third, utopias exist in speech; they are “cities of words.” This does not mean that they cannot exist but only that they need not ever. This “counterfactuality” of utopia in no way impedes its evaluative function.
· Fourth, utopian principles may come to be realized in history, and it may be possible to point to real forces pushing in that direction. But our approval of a utopia is not logically linked to the claim that history is bringing us closer to it or that we can identify an existing basis for the transformative actions that would bring it into being. Conversely, history cannot by itself validate principles. The movement of history (if it is a meaningful totality in any sense at all) may be from the most desirable to the less; the proverbial dustbin may contain much of enduring worth.
· Fifth, although not confined to actual existence, the practical intention of utopia requires that it be constrained by possibility. Utopia is realistic in that it assumes human and material preconditions that are neither logically nor empirically impossible, even though their simultaneous co-presence may be both unlikely and largely beyond human control to effect.
· Sixth, although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….] Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.” (Galston 1980: 15-16)

The Platonic construction of normative utopian models, like the Gandhian model of Ram Rajya, are not intended to point to some future political reality or indicate decisive historical telos, rather, they serve to remind us of both the indeterminacy of Platonic Forms that inspire or motivate utopian discourse and the significance of contingent historical conditions and political variables that make for relativity and plurality, as well as the necessity of judgment, in the domain of realization (or positivization). All the same, they remain indispensable to the critical political and legal tasks of specification, justification, and evaluation as adumbrated above by Galston. Plato’s particular utopian models in (The) Republic and (The) Laws were based on conceptions of virtue found in the Greek tradition metaphysically grounded in the Forms (or the Form, the Good) and thus served as the normative justification for the entire legal code. These utopian aretaic constructions are what make intelligible, give meaning or sense to, the laws as the “rule of law,” and thus it’s hard to see why we would want to characterize them as at all “extrinsic” to the law. Christopher Bobonich (2002) reiterates this point in Platonic terms:

“The word for ‘reason’ is ‘nous’ and that for law is ‘nomos,’ so Plato claims the support etymology for the link he asserts between reason and law. Since reason is itself divine [cf. Hegel’s Geist], god rules insofar as reason rules and reason can rule, if it finds expression in correct or just law. Reason ‘strives to become law ‘ (Laws 835E5) [a formulation Hegel endeavored to explain]…. [….] Reason has an inherent tendency to grasp what is best and to order things so as to bring them into the best condition. Reason in the individual soul grasps what is best for the individual and directs the person in the pursuit of it. Reason, as embodied in law, also pursues this ordering goal at the level of the city as a whole.” (Bobonich: 94-95)

There remain inevitable gaps, first, between the Forms and our utopian conceptions, and secondly, between such conceptions and any existing legal system (as reason takes intuitive, theoretical and practical forms), such that

“Even good law…falls short of being a complete expression of reason…. [….] [This is necessarily so because] law is relatively fixed and cast in general terms, so that it will fail in some case and circumstances to recommend what is best (Laws 875C3-D5, cf. Stsmn. 294A-296A). The failure of law stems from the fact that its directives cannot be as fine-grained and flexible as those issuing from living reason [which Plato attempted to capture as best as possible in the Socratic dialogues].” (96-97)

Knowing full well how law, in the end (some would say in the beginning as well), must resort to coercion to move citizens to act in conformity with its requirements, Plato sought to bring law in closer harmony with reason in general and the reasoning capacity of individual citizens in particular, thus the Athenian argues that instead of simply publicizing legislative edicts and threatening the citizens with the penalties that follow disobedience, the “better method is for the lawgiver to try to persuade (peithein) the citizens to act in the manner that the laws prescribe.” Commands sans explanation needlessly widen the distance between reason and law, so “Plato proposes attaching preludes (prooimia) to particular law and the legal code as a whole. Such preludes are an essential supplement to the bare commands of law in Magnesia” (Bobonich: 97). The lawgiver formulates the preludes so as to provide good epistemic reasons of the kind that enable the citizen to grasp “the fine and the good” that animate the law and facilitate the individual and collective flourishing that comes from a legal system designed to promote the incarnation of virtue among the citizens of the polis. The pedagogical purpose of the preludes presumes a willingness on the part of individuals to be “taught,” to make the effort to “learn,” to be open to rational persuasion. The lawgiver delineates the lineaments of laws motivated by the attempt to incarnate as far as possible what is fine, just, and good. In this respect, Plato anticipates Kant in evidencing what Bobonich calls a “striking concern for freedom and autonomy,” for “the idea that Magnesia’s citizens deserve to be treated as free people and benefit from such treatment is at the heart of Plato’s justification of preludes in the Laws” (203).

Speaking of Kant, his natural law philosophy and legal theory likewise makes plain the fact that law qua law, is conceptually, normatively and morally inextricably tied to justificatory reasons and standards of assessment that are in no way “external” to law. Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy (2009) will be our guide here, for he clearly articulates the manner in which Kant’s legal and political philosophy begins with “the simple but compelling idea that, as a matter of right, each person is entitled to be his or her own master…” (4). In other words, “The nature and justification of authority, the authorization to coerce, the significance of disagreement, political obedience, democracy and the rule of law arguable acquire their interest against some version of the assumption that each person is entitled to be his or her own master” (4). Practical metaphysics and reason will take us from a universal “innate right,” to “private right” and “public right” through “an articulation of the limits that each person’s claim to be his or her own master impose on the conduct of others,” for “each person’s entitlement to be his or her own master is only consistent with the entitlements of others if public legal institutions are in place.” Put differently, “the consistent exercise of the right to freedom by a plurality of persons cannot be conceived apart from a legal public order” (9). On this conception, a natural duty of justice, for example, cannot get off the ground or is somehow implicated in the recognition of what, for Kant, is a (metaphysical) Universal Principle of Right which

“says that ‘an action is right if can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with universal law.’ The universal principle generates each person’s ‘one innate right’ to freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law which ‘is the only original right belonging to every human being by virtue of his humanity.’” (13)

It is from this axiomatic metaphysical principle of “innate right “ that we ultimately derive (after establishing ‘private right’) the necessity of (the public right of) a constitutional legal order. Thus our conceptual, normative and moral meaning of law, the “why” of law, is derived from a metaphysically grounded innate right of humanity:

“Each enjoys the right to juridical equality innately, prior to any affirmative act to establish it. Your right to your own person guarantees that you are entitled to use your own powers as you see fit, consistent with the freedom of others to do the same. Innate right also includes the right to be ‘beyond reproach,’ to have only your own deeds imputed to you, and to be assumed innocent unless you have committed a wrong.” (17-18)

I won’t here recapitulate Kant’s argument for private right but suffice to say that for our purposes what stands out is the seemingly incontrovertible claim that

“…a system of private right without a public authority is morally incoherent, because the conceptual requirements of private right—the security of possession, clear boundaries between ‘mine and thine,’ and the acquisition of property—cannot be satisfied without a public authority entitled to make, apply, and enforce laws.” (23)

As Ripstein well explains, the coercive component of law, which is not identified with the sanction(s) of law, is justified on this account because it “takes the form of hindering a hindrance to freedom.” Furthermore, we should not reduce law to its coercive aspect or power if only because “So long as every person acts in conformity with the innate right of others, no coercion is used; the entitlement to coerce is simply the entitlement that others exercise their freedom consistent with your own.” This is not unrelated to the fact that people often internalize a commitment to obeying the law, voluntarily assuming an obligation to follow legal rules “irrespective of whether they risk punishment for breaking the law” (Tyler 2006: 3). This appears to entail a belief in the intrinsic moral legitimacy or justice of the rule of law, perhaps in part owing to the intuitive recognition that law is what makes possible the exercise of our innate right to freedom.

Ripstein concludes our discussion of Kant’s legal philosophy demonstrating, once more I think, that the “externalist/internalist” picture does little or nothing to further enhance our understanding of abstract normative and evaluative standards, be it justice or other moral values and principles:

“Kant follows the natural law tradition in treating the ideal case of a rightful condition as analytically basic, and all actual cases as defective instances of it. He takes the general strategy of focusing on the ideal case to a higher level of abstraction because of a general feature of normative concepts. To think of a way that something is supposed to be is always to compare it to an ideal of its kind. [….] The ideal case serves as a standard because it provides the only consistent way of organizing the use of power to guarantee everyone’s freedom under law.” (Ripstein: 202)

The late legal theorist and Scottish politician, Neil MacCormick, who came over time to have a fairly nuanced and generous appreciation of both natural law and legal positivist philosophies, wrote that

“laws, like other social institutions, are fully intelligible only by reference to the ends or values they ought to realize, and thus by reference to the intentions that those who participate in making or implementing them must at least purport to have. This does not entail any acceptance of substantive moral criteria as criteria of legal validity, but it does involve acknowledging the moral quality of the relevant ends and values, namely justice and the human good. It is as true of law that justice and the promotion of public good within the constraints of justice are the particular goods that make intelligible to us as a congeries of institutions and practices as it is true of art that its particular pointis the communication of aesthetic experience through creative originality. It is thus the case that laws we judge unjust or detrimental to the public good are that very account laws that we judge essentially deficient examples of the genus to which they belong, even though we may also judge them to belong validly to that genus.” (MacCormick in George, ed. 1992: 113)

It seems clear that the manner in which “intelligibility” is employed by MacCormick inextricably intertwines our conceptual, normative, and moral comprehension the meaning of both law and justice.

To speak of our standard of justice as “externally” applied in our normative assessment of the law lends the latter an instrumentalist character, and better describes what Ripstein rightly terms an “applied ethics approach to political philosophy,” that is, it “supposes that the law and the state are instruments for approximating underlying factors that really matter” (Ripstein: 7). On this rendering, “The only basis for setting up legal institutions is that they are likely to produce the best right results, as identified by external criteria, more often than they get the wrong ones” (8). The institutions of law, therefore, are nothing more than “tools for the indirect pursuit of something that can be fully specified without them” (9). Put differently, an instrumentalist conception conceives of law’s capacity or ability to serve the common good or justice, to give practical import to our inherent right to freedom, to be a purely contingent affair and not part of the law’s intrinsic value as law. In the natural law tradition, however, inquiry into the nature of law is at the same time and unavoidably or ultimately “a form of moral inquiry” (Simmonds: 6). Moral principles and values are, on this model, “immanent within our legal practice” (9). Our concept of law is not merely descriptive insofar as it has an ongoing normative role to play within the relevant practices that fall under the rubric of law. Simmonds quotes from Kant’s “Doctrine of Right” in his Metaphysics of Morals: “Kant observes that it is possible to conceive of a system containing only positive laws, but ‘a natural law would still have to precede it, which would establish the authority of the lawgiver.’ In this way he rejects the idea that positive law could be, as it were, self-grounding, or grounded in the fact of power alone: enactments can constitute law only in virtue of some deeper and inherently obligatory principles (natural laws) that lend their binding force to the enactments”(12). Thus understood, it is misleading if not incorrect to speak of an “externalist” natural law tradition: true law is our regnant conceptual norm, and all law is thus more, or less, true, that is, close or distant from the ideal.

We can’t make sense of the rule of law without implicitly drawing upon our normative conception of what law is (and thus should be), law by definition is thus parasitic upon our normative ideal. For Kant, this meant that the legal authority of our positive laws is derived from their capacity to realize the conditions for (the basic moral principle of) “jointly possible freedoms.” Law, in a fundamentally (or minimally) moral way, is the “set of conditions for possible freedoms.” Simmonds further fills out this fundamental Kantian insight:

“Law represents the only possible set of conditions within which one can live in community with others while enjoying some domain of entitlement that is secure from the power of others [as he writes elsewhere, ‘even a wicked regime will have good reason to grant citizens a perimeter of legal protections against interference’]. When a government pursues its objectives through the rule of law it governs consistently with those conditions. To show that a rule is law is to show that it forms part of a system of universality, necessity and independence: that is to say, a system of general rules and principles (universality) that are given peremptory force and are reliably enforced (necessity) as the only way in which political expression can be given to the ideal of peremptory force (given the circumstances of the real world). Such a system of reliably enforced rules represents the only conditions within which one can live [in the modern period at any rate] in political community and nevertheless enjoy a degree of freedom (independence) [a fact well appreciated by Hobbes]. The existence of such a domain requires that the law be enforced and therefore the value of such a domain justifies the law’s enforcement.” (143)

On this account, we see how sociological, doctrinal, and aspirational models or concepts of law are intimately and inextricably related to each other, even if, in practice, there’s a gap or disturbing distance between legal practice and our legal ideal, the latter providing an internal criterial standard for discerning that gap, for attempting to bridge, that distance. As Simmonds argues,

“even if law is in some respects manifest in established social practices, it may also be the embodiment of a certain ideal in the light of which those practices should be understood. Even if justice is an abstract standard against which our institutions are to be measured, it must also find some expression in our established juridical and ethical life if it to be more than an arbitrary postulate or empty figment.” (34-35)

So, our principles of justice, on this account, are not external in as much as they are in some sense and to some degree, immanent within our existing moral and juridical practices, or else their claim to be principles of justice would fall on deaf ears, would lack “meaning” for those subject to the rule of law, would have no claim upon us as legal subjects.

And nothing said to this point is tantamount to a refusal to recognize that law may be an instrument of evil, or that law may be followed and applied by those in power for purely self-serving reasons, such recognition being “fully compatible with law’s status as an intrinsically moral idea”(62). Simmonds argues that “the issue dividing the mundane and aspirational views of law concerns the serviceability of law for evil goals, not the serviceability of individual laws with the context of a system that we simply take for granted” (60). This is similar, at least in spirit, to what Lon Fuller intended by speaking of the “inner morality” of law and thus I would not, nor does Simmonds for that matter, share Brooks’ interpretation of what Fuller was up to (Larry May speaks to this issue in a manner I find persuasive). Justice is therefore not necessarily an external standard applicable to law, for we may speak of the principle of legality and the rule of law generally as an ideal in conformity with justice (procedural and otherwise): as when we (again with Simmonds) criticize governments and officials when they depart from these standards of legality, or when we critique duly enacted laws that confer unreasonable or unlimited discretion upon officials. Think too of “the principle of legality of crimes and punishment,” including but not limited to the principles of nullum crimen sine lege and nulla poena sine lege, aspects of which are identical or related to Fuller’s eight principles, the latter understood as morally minimalist criteria having to do with the effectiveness of law (please see Gallant in ‘References and Further Reading’ below as well May’s treatment of the procedural constraints and restraints on the rule of law: 202-207). As Larry May has explained, for law to be effective, there must be widespread acceptance, which is rightly linked to law’s normative justification. In other words, such acceptance involves an internalized belief in the rule of law as legitimate or justified such that there is motivation for obeying the law apart from its “coercive” dimension (and there’s compelling empirical evidence that people frequently or routinely obey the law for reasons other than the fact that disobedience can bring in its wake legal sanction or punishment):

“Moral legitimacy is crucial for any type of law since the law’s effectiveness is so losely linked with a person’s sense that the law is legitimate and the corresponding sense of obligation that a person feels. Without this sense of the binding effect of the law, there is nothing of moral importance that motivates people to obey law in the first place. Law’s effectiveness is dependent on the moral legitimacy of the law. [….] For law to be effective, [wide-scale acceptance should be linked to normative justification], but he acceptance is not what justifies the norms. Rather it is the moral legitimacy of law that both provides a justification for its enforcement and also creates wide-scale acceptance. There is a minimum moral or natural law content that laws must display [a proposition that H.L.A. Hart affirmed as well, referring to the human need for survival or self preservation and an equally Hobbesian-like need for security as the content of this moral minimalism] to be legitimate.” (May 2005: 65)

Minimalist or not, it is these fundamental moral principles “that make law worthy of being enforced. Such moral principles ultimately protect the inner normative core of law by guaranteeing that the law is, in some rudimentary way, fair” (May: 66). Simmonds highlights another feature of this moral content or ideal of law, reminding us that law frequently represents “the very antithesis of force and arbitrary power, even while we are uneasily aware that legal systems can sometimes appear to be no more than complex institutional systems wherein the rule of force is made more perfect, and power more encompassing and systematic” (the selfsame ‘appearance’ invoked in the anarchist critique of the State and the its legal apparatus) (Simmonds: 5). I suspect May would unreservedly endorse Simmond’s contention that the

“idea that governance by law is a lofty moral aspiration is a well-established feature of our ordinary, pre-theoretical outlook, not just the upshot of legal oversight or confusion. The positivists’ standard repertoire of arguments may serve to identify errors in the work of some who attack legal positivism, but the arguments look implausible when offered as an explanation of a prominent feature of our ordinary understanding [entailing, as it does, an appreciation, however intuitive or inchoate, of the fundamental moral value of the rule of law].” (41)

Thinking of constitutional government (or the State) as exemplifying the rule of law, that is, as addressing problems of collective action or coordinating our collective moral agency, encourages us to appreciate law’s fundamental “enabling” role (Holmes 1995), in which case the legal system as constitutionally established functions like the (constitutive) rules of grammar. In turn, we can now better understand how

“government’s compliance with the requirements of the rule of law is not best explained by considerations of instrumental efficacy. Rather, it must be explained by reference to a concern to maintain an intrinsically valuable form of moral association that is embodied in the rule of law, or by a desire hypocritically to assume the appearance of such a concern.” (Simmonds 66)

The argumentative speech of the personalized Athenian Laws in the Crito evidenced a Wttgensteinian-like ethical sensibility (cf. Kraut 1984) that Simmonds recovers and reiterates for our purposes: “Moral knowledge is…always in part a matter of familiarity with certain established modes of conduct, together with an application of the possibilities that they create or facilitate in practice” (151). Having been raised in societies conspicuous for the prominent place accorded the rule of law and the constitutional nature of the legal system, we may take the moral quality of law for granted, forgetting that “our ethical reflections always begin with a particular fabric of practice and judgment, and depend upon our education into that fabric,” law being one instance of such fabric (150).

In short, and to repeat a philosophical and moral insight common to Hobbes and Kant,

“the rule of law secures a good that is only to be realized and enjoyed in common. Liberty as independence from the power of others is a condition that can only be realized by that form of moral association that we call the ‘rule of law.’ This is not an individual good, access to which is regulated by the law and the just distribution of which is contingent upon the law’s content. It is a common good that is intrinsic to law’s nature.” (152)

In correspondence Professor Brooks has replied to my “critique,” part of which I copy below:

“[T]he worry seems to be that the external/internal distinction does not work because all natural law theories are to some effect ‘internalist’ and so my characterization is unfair and unfounded). In response, I’d say that even if we agreed that ‘justice is an abstract standard against which our institutions are to be measured’ and that this standard may ‘find some expression in our established juridical and ethical life’ (citing Simmonds in your comments) this seems to me consonant with the view that (a) we first determine what this standard of justice is,(b) this standard is then employed in the project of measuring the justice of our laws as we find them, and (c) in many cases we will find said standards embedded in important ways in our law. The crucial point is that this project is not one of saying what is a standard of justice is precisely those principles we find in law, but rather we determine the ‘abstract standard’ first and evaluate law second. Of course, a particular standard of justice may have compelling appeal given its deep embeddedness with the law as we find it, but the mere fact a principle is embedded need not entail the natural lawyer should accept it: after all, the law could be said to be home to many norms and not all of which may be said to cohere with any particular standard of justice.”

The determination of the abstract standard here is one with determining the abstract for what counts as law as well. The fact that the law “could be said to be home to many norms and not all of which may be said to cohere with any particular standard of justice” is an empirical claim that in no way alters the fundamental conceptual and normative enterprise that finds our standard of justice and moral criteria for evaluation of law to be integrally bound up with our understanding of what law is, should, and can be. It simply does not make sense on this account to accord metaphysical, ontological or simply practical priority (i.e., that ‘we first determine what this standard of justice is’) to determining our standard of justice if only because such determination is of a piece with what counts for law, for our understanding of the meaning, value(s) and purpose(s) of law. Of course we evaluate existing laws and legal systems with our abstract standard of justice or according to moral criteria but this normative exercise is relevant only because it speaks to the nature of law, to law as “moral aspiration,” to our understanding of law as representing the ongoing struggle to give shape or form to our conceptions and types of justice: procedural, retributive, corrective (or rectificatory), commutative, distributive, “protective’ (Kant). Indeed, these forms of justice enable us to make sense of the kinds of law: constitutional, contract, tort, criminal, administrative, and so forth.

In conclusion, I think the characterization of “natural law externalism” is a misleading if not incorrect account of the intrinsic (conceptual, normative and) moral nature of law as found in the natural law tradition, although we’ve hardly canvassed the whole array of such theories to make the claim a robust and persuasive argument. There may well be “externalist” accounts of natural law theory in Brooks’ sense, but if so, I suspect this would amount to a fatal concession to the legal positivist critique of the natural law tradition. Finally, even if legality and justice are distinct concepts and values, let us take care to consider what it means to state that “each of these two values can be fully realized only in conjunction with the other” (Simmonds: 198).

References and Further Reading:

• Audi, Robert. The Good in the Right: A Theory of Intuition and Intrinsic Value. Princeton, NJ: Princeton University Press, 2004.
• Bix, Brian H. “Natural Law: The Modern Tradition,” in Jules Coleman and Scott Shapiro, eds. The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press, 2002: 61-103.
• Bobonich, Christopher. Plato’s Utopia Recast: His Later Ethics and Politics. New York: Oxford University Press, 2002.
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