Michael Oakeshott on the Rule of Law by Timothy Fuller
Timothy Fuller, "Michael Oakeshott on the Rule of Law and the Liberal Order," Journal of Law and Liberty, September: 2012.
A defining theme of Michael Oakeshott’s thought is that, through the past five centuries, European civilization can count among its greatest achievements the invention of “civil association” and the clarification of the “rule of law.” These are arrangements in which individuals, who think of themselves as individuals, associate with each other, not in terms of a teleological purpose or in pursuit of a uniform goal or end for humanity, but in terms of agreed-upon procedures and expectations to secure opportunities for such self-regulating individuals to pursue their wished-for satisfactions in voluntary associations supported by appropriate rules. Civil association is not a theory of the “state,” but is our picture of what we can expect in our interactions with each other. The modern state, in its variously constituted forms, is designed to support civil association.
The focus of Oakeshott’s analysis is not primarily on formal arrangements. He argues that the ground of governmental authority — consent of the governed — in the West is largely uncontested. The question which elicits highly contested responses is, What is the proper scope of governmental power? For example, he tells us in Morality and Politics in Modern Europe, the Harvard Lectures (1993): “In the history of political thought, then, it is necessary to distinguish the particular topic being reflected upon – whether it is the constitution of governments or the activities of governments. And it is my belief that during the last four hundred years there has been a gradual shift of interest from the first to the second. And also I think it will be found that most, but not all, of the reflection and discussion that appears on the surface to be concerned with the constitution and authorization of governments is really concerned with the office and pursuits of governments.” (Harvard Lectures, 12)
Oakeshott understood the state to be a “superficial order” which rides on a much more complex order, impossible to systematize, of continual interactions among individuals who understand themselves to be “in themselves what they are for themselves,” while able to take into account the reactions of others to what they understand themselves to be and to desire. This involves continual freedom of thought, expression and exchange, not, as J. S. Mill might have believed, leading to convergence on universal truth, but more modestly preserving an association where the ends of life remain individual and self-chosen.
Oakeshott was not, however, indifferent to the matter of constitutional form. He praises the American Constitution for being “the most profoundly sceptical [sic] constitution of the modern world,” whereas the French Revolution lost its initial skepticism and the Russian Revolution “owed nothing to the politics of scepticism [sic].” (The Politics of Faith and the Politics of Scepticism, 80) But Oakeshott also thought that the devices designed to inhibit the expansion of governmental power, such as “separation of powers” and the “independent judiciary,” had increasingly failed to do so. In short, the clarity and perseverance of allegiance to civil association – the spirit underlying the constitutional forms – he saw to be of the highest importance.
Adherence to the rule of law is fundamental to the spirit of civil association. We rely, Oakeshott argues, upon law as the background condition for making our exercise of freedom equitable, unpretentious, orderly and assured. His most elaborate discussion of civil association is in On Human Conduct (1975). His reflections on the rule of law appear in numerous places in his writings, and in his lectures on the history of political thought which he offered to students at The London School of Economics. The lectures have now been published as Lectures in the History of Political Thought (2006). Students of his work will also want to consult The Politics of Faith and the Politics of Scepticism (1996), and the essays, “The Political Economy of Freedom,” “On Being Conservative,” and “Political Education” in Rationalism in Politics (1962, 1991). His essay, “The Rule of Law” in On History and Other Essays(1983, 1999), deserves close attention. This essay, together with the discussion of “telocracy” and “nomocracy” in his LSE lectures are major contributions to understanding the rule of law as a defining feature of our western heritage. I discuss in Part I Oakeshott’s idea of law in the context of the whole of his thought; in Part II, I consider in detail his essay on “The Rule of Law.”
In the LSE lectures, Oakeshott defines “telocracy” and “nomocracy”: “By telocracy I mean the proper business of governing understood as the organization of the energies and activities of its subjects, and of the resources of its territory, for the achievement of a single, premeditated end. Now, this disposition of belief is a view of the proper business of governing, and not a belief about the authority of government.”(Lectures, 471) For example, democratic consent can put limits on governmental power, but it also can support unlimited extension of that power. And “telocracy does not necessarily mean the absence of law. It means only that what may roughly be called ‘the rule of law’ is recognized to have no independent virtue, but to be valuable only in relation to the pursuit of the chosen end.”(Lectures, 472)
In On Human Conduct, Oakeshott distinguishes civil association from “enterprise association” which is a “managerial engagement” specifying a common purpose requiring each participant to play a role in contributing to the production of a final end result.(OHC, 114 ff) To enter into an enterprise association voluntarily with the option to withdraw is a common experience. However, compulsory participation in an enterprise enforced by the state, from which withdrawal is difficult or impossible, is an entirely different matter. The broader the scope of state regulation, and the more minute the regulations, the more there will be mandates which conflict with the goals and desires of significant numbers of individuals and groups. We have already noted that, for Oakeshott, the formal structure of the state is not the primary issue; it is rather what the function of the state, however formally designed, is understood to be. To think in terms of civil association is to think in terms of rules of a certain kind which pose limits to the scope of state power. Here is one of the ways in On Human Conduct Oakeshott explains this:
Since the civil condition is not enterprise association and since cives as such are neither enterprisers nor joint-enterprisers, it follows that they are related solely in terms of their common recognition of the rules which constitute a practice of civility. And the most important postulates of civitas stem from this consideration. What have to be identified and understood are the theoretical conditions of a durable and diurnal association inter homines, as indisputable as may be, where the terms of relationship are exclusively the rules of a practice which may concern any and every transaction between agents and is indifferent to the outcome of any such transaction: the practice of being ‘just’ to one another….Such rules I shall call ‘law’….rules which prescribe the common responsibilities (and the counterpart ‘rights’ to have these responsibilities fulfilled) of agents and in terms of which they put by their characters as enterprisers and put by all that differentiates them from one another and recognise themselves as formal equals – cives.(OHC, 128)
This civility involves rules which are “adverbial” considerations, qualifying the manner in which we pursue our goals and desires without dictating what those goals and desires are supposed to be; such rules are advisory for our conduct toward others without prescribing what transactions to enter or to refuse. In the LSE lectures, he contrasts telocracy with nomocracy: We recall that the former “is distinguished by the single ‘purpose’ or ‘end’ which it is understood to be the business of government to impose upon its subjects.”(Lectures, 479) Nomocracyor “government by law” means
the belief that the proper office of government is: 1) To be the custodian of a system of legal rights and duties in the enjoyment and observation of which the subjects of the government may pursue their own chosen ends and purposes while still remaining a single association. 2) To be the custodian of the interests of the association in relation to other similar associations.(Lectures, 483-4)
Oakeshott summarizes the tension between telocracy and nomocracy:
for the believer in nomocracy, how a government acts is a more important consideration than what it does; while for the believer in telocracy it does not matter how a government acts so long as what it does promotes the chosen ‘end’ in view.(Lectures, 484, italics in original)
In nomocracy the state is understood to preside over different sorts of individuals with varying religious, moral and material interests, who want to make choices for themselves, and who have learned to live with endless adjustment and readjustment. Such order as results has not been designed or imposed by any assignable agent or group. It is not altogether “spontaneous,” but it has a character open to changes emerging in the continual interactions of individuals who, whatever else they do, intend and seek to preserve their civic relationship, their association as citizens. The positive function of the state is to maintain the rule of law by both preserving and altering the arrangements of a set of people brought together in a mixture of chance and choice (see “Political Education” in Rationalism in Politics). The point is neither to eliminate nor to maximize the scope of governmental power; there is no independent formula to provide a definitive answer to the question of its scope; the task is to maintain a proper relationship to the prevailing conditions of civil association which government is understood to serve. In this sense, in our practical lives together the need for debate, discussion, reflection and reconsideration is interminable as we pursue the “intimations” of our lives in each other’s company. (“Political Education”) As Oakeshott says in the Lectures, commenting on Adam Smith,
The system of law, if it is to serve its purpose, must, of course, be appropriate to the kind of relationships which the members of the association are apt to enter into, and the kind of injuries they are most apt to do to one another. It, therefore, falls to government not only to administer the law, but also to see that this law is appropriate to its subjects….The business of government is not to impose an overall pattern of life upon its subjects, or to give a ‘purpose’ or ‘end’ to the activities of subjects who might otherwise not know what they should be doing.(Lectures, 494)
Oakeshott also spoke of the “ideological style” in politics. This style is dissatisfied with the unplanned, undesigned order which has come to be through a combination of chance and choice over a long period of time and which is understood through the familiarity those who participate in it acquire. Such order will be misunderstood if judged according to an independently premeditated model of what it “ought to look like.” Oakeshott argues that this ideological vision can never in fact be independent; it is constructed by abstraction from actual experience, offering what appears to be a coherent design only because it sets aside all the complexities with which, if it is “put into practice,” it will inevitably have to deal and which will immediately begin to reveal its inappropriateness:
If, however, we consider more closely the character of a political ideology we find at once that….So far from a political ideology being the quasi-divine parent of political activity, it turns out to be its earthly stepchild. Instead of an independently premeditated scheme of ends to be pursued, it is a system of ideas abstracted from the manner in which people have been accustomed to go about the business of attending to the arrangements of their societies….political activity comes first and a political ideology follows after…(“Political Education,” RIP, 51)
The rule of law is a hedge against the claims to control of the ideological style and against insistence on an earthly telos. The rule of law demands patience and skepticism about the use of power where the ideological style is not only impatient but insistent upon dividing the cives into the “righteous” and the “unrighteous,” the “intelligent” and the “backward,” the “progressive” and the “reactionary,” and so on. Oakeshott thus outlined the demerits and dangers of the telocratic perspective. But he concluded the Lectures by observing that
The main circumstance hostile to a belief in nomocracy in modern Europe has not, I think, arisen from reflection upon its demerits; it has been war and the solidarity of purpose which war imposes upon a ‘state’. War is the paradigm case of a situation in which the variety of ‘admitted goods’ in a society is reduced, or almost reduced, to one; a ‘state’ at war is a paradigm case of telocracy. And it is not insignificant that the rhetoric of telocratic belief is always liberally sprinkled with military analogy.(Lectures, 496)
The governments of modern Europe and North America are subject to the recurrent discord of the unresolved – perhaps insoluble — tension between the telocratic and the nomocratic dispositions. Elsewhere he describes this as the charged field of politics which oscillates betwen two poles: that of the “politics of faith” (utopian politics) and that of the “politics of skepticism” (skepticism about the claims made for the aggregation of power to control and direct human affairs). To say that the former dominates in our time of endless international struggle suggests that Oakeshott absorbed Kant’s thought that the internal perfection of a republic (civitas) awaits the resolution of international conflict in a cosmopolitan world of republics. The internal coherence of civil association is hostage to external threats. To expound the concept of the “rule of law” is to defend and keep alive its possibility against obsessive absorption into the ideological style of the administrative/regulatory/garrison state.
Oakeshott’s essay, “The Rule of Law,” is one of the great essays written on this subject in our time. It deserves careful attention. Oakeshott typically writes in an analytical, descriptive mode, and is reserved about expressing his personal convictions. But his commitment to the rule of law is clear in his conclusion to the “The Rule of Law”:
The rule of law bakes no bread, it is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault, but it remains the most civilized and least burdensome conception of a state yet to be devised. (On History and other essays, 178)
Oakeshott’s aim is to clarify what the rule of law “must mean.” His approach is to describe the defining features of the concept so as to eliminate the confusion and ambiguity which result from loose connections to other concepts. He wants to identify the features that belong strictly speaking to the concept of the rule of law, and not to other concepts with which it is often confused.
The idea of the rule of law attracts and is appropriate to individuals who define themselves in terms of goals they choose for themselves. Those associated in a civil manner as cives or citizens have learned more or less how to get along with each other while respecting what distinguishes them as individuals. To define our condition thus is a remarkable achievement. It is not given to us by nature because a human being is not born a “citizen” but, qua human, must learn to become a citizen (or anything else) – a civic person — seeking a satisfactory idea of what it means for him or her to be human: a conception of oneself making one’s way in the world in the midst of innumerable others likewise engaged. We are individuals and also citizens where the civic relationship is not constituted by the abandonment or suppression of what we understand ourselves as individuals to be, but is added to it in, so to speak, an advisory role. The expression “rule of law” thus
Stands for a mode of human relationship that has been glimpsed, sketched in a practice, unreflectively and intermittently enjoyed, half-understood, left indistinct: and the task of reflection is not to invent some hitherto unheard of human relationship, but to endow this somewhat vague relationship with a coherent character by distinguishing its conditions as exactly as may be. It stands for a relationship who sole and exclusive conditions are rules of a certain sort, namely laws….human inventions that purport to declare the conditions of a human relationship.(“The Rule of Law,” On History…, 131)
Each of us is a human being with a civic persona,
a person in respect of being related to others in terms of distinct and exclusive conditions….Human beings are intelligent agents and in terms of all or any of the relationships they enjoy are beliefs and recognitions: not merely what they have learned and understood (or misunderstood), attributed to or assumed about themselves, but what they have seen fit to require of themselves and one another.(On History, 130)
Individuals may be associated in many ways, especially in transactions designed to achieve their wants and satisfactions. But to be related in terms of law is different from relationships through which we pursue substantive satisfactions. One of Oakeshott’s ways of describing this is to insist that we do not “obey” laws; we “subscribe” to them. This means that in the law-like relationship we undertake to seek and to satisfy our substantive desires according to mutually accepted rules which do not in themselves promote or undermine our success in the pursuit of substantive satisfactions: “Subscription to these rules is not itself a possible substantive action; it is the observance of adverbial qualifications…”(On History, 137) We can assess rules either in terms of their “authenticity” or their “desirability.” In the former case, we honor rules because they emanate from a source which we have acknowledged to have the authority to make rules. In the latter case, we are assessing rules in terms of how far they may help or hinder us in doing what we want to do; in that case we are not treating rules as rules but as objects of prudential calculation. But if a rule, strictly speaking, is related to no substantive end, its concern is “with the propriety of conduct, not its expediency.”(On history, 139)
Thus Oakeshott also insists that a rule is not a command: A command is addressed to a particular agent or agents, to do or not do something in a particular situation, thus requiring a substantive action of a particular sort demanding specific compliance. But “the response to a rule cannot be obedience; it is adequate subscription to the conditions it prescribes.”(On History, 140) By this distinction Oakeshott wishes to insulate the rule of law from assessment in terms of particular outcomes for civilly associated individuals. If we think of ourselves as subscribing to rules then we see ourselves as intelligent agents, pursuing and maintaining the civic relationship by adhering to the rules because they are authoritative, and because they establish the common ground of association.
Of course, Oakeshott knows as well as anyone that, because we are both individuals and citizens, there will be continual tension between our subscription to the rules for the sake of the civic relationship, and our desire that the rules should promote our interests which tempts us to judge them in the latter terms. The civic relationship is an artifice in the profound sense that it is a manner of conduct we impose on ourselves, recognizing both its appropriateness and the dangers inherent to abandoning it. When Oakeshott set out to say what the rule of law “must mean,” he was aiming to elucidate what a law-like relationship strictly speaking can be, and to clarify its difference from other kinds of relationships which are also perfectly natural to human beings, but which are not relationships of law:
The expression “the rule of law,” taken precisely, stands for a mode of moral association exclusively in terms of the recognition of the authority of known, noninstrumental rules (that is, laws) which impose obligations to subscribe to adverbial conditions in the performance of the self-chosen actions of all who fall within their jurisdiction.(On History, 148)
To establish the rule of law requires a legislative office (and a judicial office to settle disputes). The formal character of the legislative office is subordinate in importance to the understanding of those who occupy the legislative office that they have a duty to enact rules of the sort we have been describing. The authority to make laws does not depend on the personal virtues, charisma or rhetorical power of the office holders, but on their being entrusted with the making of laws having the character of law Oakeshott describes. The system depends on the acknowledgment by those subject to law that the laws proceed from a recognized office holder and exhibit the proper character of rules. Those subject to the law may appraise the justice of the laws in terms of their emanation from the proper authority and in terms of their conforming to the character of rules as we have described them. In this sense, one may appeal to something beyond the particular laws themselves – to the concept of what the law-like relationship requires, but this is not to be confused with assessment in terms of substantive benefits which one may or may not incidentally derive through adherence to the laws. Otherwise, one is denying the non-instrumental character of the laws. What determines the rightness of a law
Is not a set of abstract criteria but an appropriately argumentative form of discourse in which to deliberate the matter; that is, a form of moral discourse, not concerned generally with right and wrong in human conduct, but focused narrowly upon the kind of conditional obligations a law may impose, undistracted by prudential and consequential considerations…(On History, 156)
In this respect, Oakeshott was skeptical of appeals to Bills of Rights and to Natural law arguments insofar as they encurage appeals to substantive considerations above and beyond the law. It is important to understand that, for Oakeshott, the relationship of civil associates in terms of a strict rule of law is itself a moral relationship; it is moral because the relationship specified requires self-restraint, recognition of others as intelligent agents, and because any other associational relationship fails to attain universality.
Nevertheless, “the rule of law cannot, without qualification, characterize a modern European state.”(On History, 168) This is so because the emergence of the rule of law in modern times retained a connection to ideas of a higher law. There is an ambiguity in the idea of the rule of law we have inherited: On the one hand, appeals to a higher law may suggest that there is a set of substantive social arrangements prescribed by that higher law which it is the task of humanly made law to implement. On the other hand, the higher law may be taken to be a set of precepts or maxims which express background conditions for identifying what law properly so called is, and for making laws of the sort Oakeshott has been describing. Appeals to Natural Law, for instance, may be appeals to a description of the formal character of law as such, or appeals to a substantive prescription for how we ought to live. Needless to say, this ambiguity must affect the ambivalence we experience as to the function or the purpose of the modern state.
We experience an inherited tension between pursuing a coherent system of non-instrumental rules, and the desire to perfect the social order according to a good which allegedly transcends and directs the individual goods of citizens. Oakeshott invokes Hobbes’s theory of law to argue that the lex naturalis “is composed of maxims that indicate the necessary causal conditions of peaceful association.”(On History, 172) And
The only “justice” the rule of law can accommodate is faithfulness to the formal principles inherent in the character of lex: non-instrumentality, indifference to persons and interests, the exclusion of privi-lege and outlawry, and so on.(On History, 173)
Oakeshott argues that the ius of lex (the justice or righteousness of the law) implies, first, a judgment as to whether the laws we have are properly formed as laws in the precise sense; and, second, whether the laws reflect the “prevailing educated moral sensibility” which understands how we currently distinguish between legal obligations, and our moral duties which we may expect of each other but which we do not wish to make obligatory. Oakeshott thus filters Hobbes’s idea of law through Hegel’s understanding of the interminable mediating of human relationships through time. The relation between moral duty and legal obligation cannot be fixed once and for all. Oakeshott is speaking of “a moral imagination more stable in its style of deliberation than in its conclusions.”(On History, 174) His observations show that, in the fluid world of human experience, the idea of the rule of law is indispensable to preserving the freedom of human beings, where freedom means that we know ourselves as intelligent agents of our own lives, capable both of pursuing our own goals and of regulating and moderating those pursuits in light of the common condition we share in civil association.
Oakeshott Works Cited
Lectures in the History of Political Thought (ed by Terry Nardin and Luke O’Sullivan), Imprint Academic, 2006, cited as Lectures
Morality and Politics in Modern Europe, The Harvard Lectures (ed by Shirley Robin Letwin), Yale University Press, 1993, cited as Harvard Lectures
On History and other essays, Foreword by Timothy Fuller, Liberty Fund, 1999 (first published 1983), “The Rule of Law” is in this collection, pages 129-178, cited as On History
On Human Conduct, Oxford: Clarendon Press, 1975, cited as OHC
Rationalism in Politics and other essays, New and Expanded Edition, Liberty Fund 1991 (original edition published 1962), cited as RIP
The Politics of Faith and the Politics of Scepticism, (ed by Timothy Fuller), Yale University Press, 1996