Rules are Rules: Civil Association and Personal Responsibility
‘But we acted within the rules!’ the cry goes up, as a particular form of swine fever is found to have hit a certain part of London many years ago and still be infecting the place to this day. Briefly commenting on the story, Chris Bertram at Crooked Timber suggests the general public disgust hints at validating in a small way GA Cohen’s basic objection to John Rawls’ theory of justice, that ‘justice’ is a virtue properly concerning not just institutional design (as Rawls claims), but personal conduct and attitudes too. Myself, well, I immediately think of a Collingwood-Oakeshott connection (like you do!).
So, the big theoretical difference between On Human Conduct and The New Leviathan lies with the former’s centring of the civil/enterprise association distinction where the latter does not. Where Oakeshott theorises the state as essentially a mode of association distinct from the sort of association typical in civil society, then, Collingwood does not, Collingwood seeing both in terms of the joint pursuit of a common purpose.
This difference becomes reflected in the two men’s accounts of rule-following in a social context, accounts that Collingwood and Oakeshott alike claim get to the heart of the nature of law and its basic legitimacy. So, Collingwood conceptualises rule-following (and so law adherence) as a matter of the follower tacitly understanding the rule’s creation as a ‘joint decision’ between herself and the legislator(s), the rule in itself being more or less instrumental for pursuit of a shared purpose. In contrast, Oakeshott characterises a rule (and so a law, insofar as it exhibits the ideal character of a ‘genuine’ rule) as an ‘adverbial condition’ upon the pursuit of whatever private purposes the follower comes to pursue, the follower acknowledging the ‘authoritativeness’ of the rule without needing to ‘approve’ of it, let alone believe she had a part in creating it.
Now as an understanding of law in a liberal (including liberal democratic) society, Oakeshott’s conception seems to me far superior. Given how Oakeshott occasionally indulges in the right-winger’s cliche that leftists supposedly deny the sense in attributing free will (and so personal responsibility) to people, though, it does have the curious implication that only when acting within an enterprise association – which amongst other things, is the understanding of the state had by ‘leftists’ for Oakeshott – can a person be held personally responsible for her actions in a categorical sense.
The issue here is that to do ‘wrong’ in a civil association (or for that matter, any rule-constituted association) is a matter strictly relative to its rules, rules that in being merely‘acknowledged’ and not ‘approved of’ by associates are not things associates themselves can properly be held responsible for. Thus, do ‘right’ relative to a civil association’s rules, and in principle, it does not make sense to criticise the associate – as per MP’s clarion call, the associate did not choose the rules, so how can she be criticised for adhering to them? In contrast, since the ‘rules’ of an enterprise association are always instrumental on some level to its defining purpose, their ultimate justification is the justification of that purpose. And, since enterprise associates necessarily ‘choose’ the latter even if in practice they merely acquiesce to it (or so Oakeshott argues), one may infer there is conceptual space here for holding associates responsible for acts that are nevertheless still ‘right’ according to the association’s ‘rules’.
Looking back to the expenses scandal then, perhaps it’s time to make the House of Commons less a civil than an enterprise association. I know it sounds old-fashioned (and indeed, motioning towards a standard that was hardly upheld in the past), but how about ‘serving the people’ as the association’s defining purpose…?
As an Oakeshottian fellow-traveller I will first say that I very much enjoy this blog and your entries. Pleasantries aside, I think there is something of a problem with your account of Oakeshott here.
There are two sense of ‘right’ and ‘wrong’ available to cives in civil association. As you say, if someone strictly adheres to the rules of civil association then MPs cannot be accused of ‘injustice’ since, in OHC, Oakeshott makes clear that the realm of law is the realm of ‘just’ conduct and so adhering to law cannot constitute injustice. But this did not mean that moral conduct was nothing more than adherence to law. There is also the realm of ‘good’ conduct which is not obligatory, as law and justice are, which also informs individual conduct and which as well forms part of the deliberations allowable in respublica. So, although an MP, to the extent s/he acted within the law can be said to have acted justly, we can nevertheless consider whether or not their conduct in the circumstances was ‘good’ without having to become a enterprise association and all that entails or imagining that the Parliament is nothing more than an instrument of ‘the people’ whoever they might happen to be.
The other matter, here regarding enterprise association, is that it is not at all clear that the Parliament being held to the standard of “serving the people” and thus being understood as an instrument of ‘the people’ would in the least improve the conduct of individuals MPs or that it would lead to better rules; since as a standard “serving the people” is supremely ambiguous and no better and probably worse than that Roman maxim, salus populi suprema lex esto, the fortunes of which Oakeshott was rather scathing (see The Politics of Faith and the Politics of Scepticism, pp. 39-42, as was Seldon, “there is not anything in this world more abased than this sentence, salus populi suprema lex esto.”
Thanks for commenting. To take your two points in turn:
1. You are indeed correct in emphasising that Oakeshott does not make the rules of civil association the be all and end all of morality for cives. However, those rules are the only moral standards necessarily shared by all. In other words, Oakeshott on my reading is a moral relativist in the sense that what is right and wrong is theorised to be a ‘private’ affair, all extra-legal moral standards only being ‘moral’ with respect to those whose actions are already ‘adverbially conditioned’ by them. Combined with OHC’s dictum that ‘a belief is what it means to the believer’, we get the result that if a person subject to extra-legal ethical criticism were to say he does not recognise the standard being applied as partaking of a morality he himself acts according to, then he cannot be legitimately criticised. (Oakeshott’s position here does not amount to a merely pragmatic argument for accepting the fact of moral diversity; rather, it is a principled one, denying the existence of absolute moral standards, and thus, denying even the hope of reaching moral consensus.) Personal responsibility is diluted, then, simply because when it is claimed a person is lacking it, the accuser presupposes the existence of moral standards shared between herself and the accused, and on Oakeshott’s scheme, one cannot make any such assumption, the only shared standards necessarily existing between cives being those constitutive of the civil association itself.
2. Well, the ’serve the people’ thing was admittedly a bit of rhetoric to finish off the post. And indeed, grand-sounding slogans aren’t the sorts of things one would wish people with political power to think of acting by, at least in ordinary times. Something on the lines of ‘determining and implementing the general will or common interest, however wide or narrow that may be in the circumstances’ I would be fine with though; there should be procedural constraints on how such an end may be pursued of course, but those constraints would themselves be justified (and revisable) according to an estimation of what the end involved intimates as appropriate. That said, my main point in the post was simply that once an association is considered to be structured by an end, legalistic claims that ‘I was only acting within the rules’ cut little ice if it may be considered that you acted contrary to that end.
“However, those rules [lex] are the only moral standards necessarily shared by all.”
I think this is wrong. They may or may not be ’shared’,but they are certainly obligatory upon all cives to observe in pursuit of their various individual and mutual satisfactions. Or, in other words, to the extent that all cives must observe lex in their everyday activities they are shared, but all cives do not necessarily have to agree with their desirability and in this sense they are not shared. On second reading, you may be implying the former but I read you initially as implying that lex, as a set of moral standards (norms) enjoys universal agreement; as it stands the sentence is ambiguous. Sorry if this point isn’t as clear as it should be.
What follows in that first paragraph would only be true if Oakeshott thought that moral traditions were incommensurable; I don’t think he does. Even though we may not share the same moral standards, we do share a similar (though not the same) moral vocabulary. The task of the accuser in such a situation is not to assume or impose the same or her own moral standards but to invite the accused to reconsider the meaning, relations, and the reasonableness of her moral beliefs, etc. I think this is very definitely possible in Oakeshott’s scheme.
“‘determining and implementing the general will or common interest, however wide or narrow that may be in the circumstances’”
I much prefer Oakeshott’s notion of ‘public concern’, see. OHC, p. 147, even if it is somewhat elusive.
“there should be procedural constraints on how such an end may be pursued of course, but those constraints would themselves be justified (and revisable) according to an estimation of what the end involved intimates as appropriate.”
Isn’t this tantamount to saying: Though the ends may not justify the means, the appropriateness of the means will themselves depend upon our judgment of the appropriateness of the ends. Or: the end/s may, in fact, justify the means. It was Oakeshott’s intent that we avoid this sort of problem by understanding law non-instrumentally. It seems to me, as it did to him, that where law is understood instrumentally, it becomes no more than an instrument of policy, and in such an instance, references to procedural constraints are vestiges of our understanding law as a non-instrumental rule indifferent to the pursuit of individual or mutually pursued substantive ends.
“That said, my main point in the post was simply that once an association is considered to be structured by an end, legalistic claims that ‘I was only acting within the rules’ cut little ice if it may be considered that you acted contrary to that end.”
To that extent, I agree.
‘I think this is wrong. They may or may not be ’shared’,but they are certainly obligatory upon all cives to observe in pursuit of their various individual and mutual satisfactions.’
I wasn’t denying that — rather, I was saying that there are no moral norms that are necessarily shared between cives beyond the rules of the CA itself. Thus, if a person does not do wrong relative to those rules, it may be illegitimate to criticise her if Oakeshott’s stipulations hold. Being more universalistically inclined in morality myself, I find this intuitively objectionable, especially given how lex does not judge ends. (By the by, the issue here, of course, is a step back from the question of what the state may be justified in proscribing — i.e., a belief that certain ends are ‘objectively’ immoral does not necessarily imply a belief that the state should ban their pursuit.)
‘I read you initially as implying that lex, as a set of moral standards (norms) enjoys universal agreement’
In the ideal character of CA, I am interpreting Oakeshott, lex concerns norms that all cives are justifiably bound to — whether they see lex as desirable is another matter. There is no space, then, for an agent to say the rules of the CA do not apply to her. In contrast, given Oakeshott’s moral relativism, there is such space in the case for any other type of moral norm.
‘Even though we may not share the same moral standards, we do share a similar (though not the same) moral vocabulary.’
That is an empirical matter on Oakeshott’s scheme, or so I believe, the ‘we’ being culturally circumscribed. For sure, he doesn’t bang on about the actuality of moral traditions different to his own, but he still allows for it. (Well, I say he doesn’t bang on about it — he does at least bang on about the actuality of political traditions other than his — ‘our’ — own in ‘Political Education’, and a political tradition is sort of moral tradition for him.)
‘The task of the accuser in such a situation is not to assume or impose the same or her own moral standards but to invite the accused to reconsider the meaning, relations, and the reasonableness of her moral beliefs, etc. I think this is very definitely possible in Oakeshott’s scheme.’
Probably, though he makes no claim for it being legitimate to presuppose moral agreement should in principle be possible like (say) Kantian and neo-Kantian ethics as a class do — and that was the pont I was trying to make.
‘Isn’t this tantamount to saying: Though the ends may not justify the means, the appropriateness of the means will themselves depend upon our judgment of the appropriateness of the ends. Or: the end/s may, in fact, justify the means’
For a person who is dead set against the idea that normativity (let alone morality) requires the postulation of ends, then maybe that is true. Nevertheless, my position is not that a rule is something that may be simply overridden at the moment of acting. Rather, its status as an approproate rule or ’side constraint’ is just simething that may be questioned on the grounds it has come to have no positive relation to its relevant end, and thus, be rightfully altered by the relevant authorities. Sure it’s idealising, but the underlying model here is of an individual agent setting a rule for herself. E.g., say a person, wishing to learn German, sets herself the rule that she shall leave aside at least two hours a week for study. Come the middle of week three, and with all her normal responsibilities, she is struggling to fulfil the rule and thinking that if anything, it is impairing her ability to learn because she’s so stressed about it. Nonetheless, having given herself the rule, she goes through with it for that week. At the weekend though, she looks at matters again before coming to a decision to revise it, the rule now being to study for at least one hour a week. This weekend revision of the rule, then, is the analogue to the decision-making of a legislature in a civil association.
“The issue here is that to do ‘wrong’ in a civil association (or for that matter, any rule-constituted association) is a matter strictly relative to its rules…”
No, I think this gets this wrong — the right formulation is that the only thing legally actionable in a civil association is breaking its rules. An example may clarify what I mean: I think it is immoral (and “objectively” so!) not to offer some expression of gratitude when someone has done me a significant favour. But I would be horrified at any proposal to make a failure to say ‘Thank you!’ (in a sincere tone) a criminal offense!
‘I think it is immoral (and “objectively” so!) not to offer some expression of gratitude when someone has done me a significant favour. But I would be horrified at any proposal to make a failure to say ‘Thank you!’ (in a sincere tone) a criminal offense!’
Well, as I’ve tried to suggest in reply to the other commentator, my reading of Oakeshott is that he does not allow for non-legal matters to be ‘objective’ (and even with legal matters it’s only relative to the CA). Contingently it may be the case that there are extra-legal moral norms shared by all, but Oakeshott’s scheme offers no hope that there necessarily will be any or even that there should be any. I’ll probably dig out relevant lines in OHC at some point, though basically, almost any place in part 1 he uses the word ‘morality’ counts IIRC. By all means quote away if you wish to reject this relativist reading of Oakeshott though…
That said, and just in case this is not obvious, while I find Oakeshott’s position in OHC appealing in many ways, I am more inclined to a Kantian rationalism in ethics than his own relativism — that line near the start of ‘On Being Conservative’ where he says that a person of ‘conservative’ disposition, while disliking change, quickly gets over it because he esteems existing things not because their are objectively ‘good’ or even long-established, but simply because they are present and so immediately perceived, has always driven me crazy! All what I’ve said in the current thread, then, is a matter of Oakeshott interpretation rather than my own views about the truth of any underlying substantive matter.
What Gene said. If you were more or less right there could be neither adjudication nor legislation in Oakeshott’s thought.
‘If you were more or less right there could be neither adjudication nor legislation in Oakeshott’s thought.’
I don’t get this. Oakeshott himself claims lex to constitute a morality in its own right — if what you say is true, then it isn’t a free-standing set of norms after all (I don’t have an exact reference handy, but the line I’m particularly thinking of is near the end of part 2 of OHC). That said, I think your position is a more reasonable one than what I read to be Oakeshott’s — as Collingwood claims somewhere in the pieces collected as his Essays on Political Philosophy, legal and non-legal moralities will and should overlap, if only for pragmatic reasons. (There’s a direct analogue here to their respective metaphysics, Collingwood proclaiming overlapping scales of forms where Oakeshott proclaims categorially distinct modes.)
“I don’t get this. Oakeshott himself claims lex to constitute a morality in its own right”
Yes, but what makes you think that lex is “categorically distinct” from morality?
“if what you say is true, then it isn’t a free-standing set of norms after all”
No it isn’t and I can’t imagine Oakeshott ever arguing that it was. There is recurring phrase, you might even call it a leitmotif, in Oakeshott’s thought which aptly describes the relationship between law and morality, namely, they are “distinguishable but inseparable”.
If you can manage to dig up that reference in OHC I’d like to read it.
‘Yes, but what makes you think that lex is “categorically distinct” from morality?’
Sorry, I meant to say: ‘lex’ is but one ‘morality’ amongst others (using Oakeshott’s way of using the words), and that whether norms of different moralities may have relevance to another is an empirical question for him — there’s no ‘master morality’ or ethical theory that may in principle play trumps here.