Review of Timothy Macklem’sLaw andLife in Common (Oxford: Oxford University Press, 2015, ISBN 978-0-19-873581-60). In: Cambridge Law Journal (forthcoming).
By Veronica Rodriguez-Blanco
Macklem argues in his book Law andLife in Common that law and legal systems arise from the interplay between reason, will and imagination. He aims to show that critical theories of law, which construe law as will or power, have an element of truth since their focus on the idea of will or power sheds light on the contingent, open and plural features of the law. He aims to unify a) Raz’s Service Conception of Authority, which is grounded on reason; b) critical theories of law, which focus on will (or power), and c) Dworkin’s constructive theory of law which is built around the idea of imagination. Macklem tells us that unification is possible if we admit that each of these theories is incomplete and if we subsequently use this incompleteness to consider the respective notions each theory is grounded in, i.e. reason, will and imagination, to show how a complete and satisfactory picture of law as social practice can emerge.
In the first chapter, Macklem sets out the problem of law. Law is the instrument of governance and plays an active role in shaping our life in common. In addition, in pursuing their individual life projects, individuals are meant to draw from a minimal form of life in common(p.3). Macklem asks the question, “what is the connection between law and action, in one life or in many?” (p.4). The answer to this important question might partly be given by identifying the law in question (p.4), that contains or consists of a reason that defeats other reasons for actions that citizens might have. According to Macklem, Raz’s Service Conception of Authority, which establishes that legal directives give us exclusionary reasons for actions, i.e. reasons that exclude our first-order deliberations, and apply to us because we can be more successful in complying with the relevant and appropriate reasons if we follow the law,only shows us that submission to law’s authority may be reasonable. Raz’s theory does not show that submission to authority is necessarily more reasonable (p.5). Contrary to Raz’s position, Macklem tells us, Dworkin defends the idea that the moral content of the law is essential to determine its legitimate authority. Dworkin is committed to the idea of moral objectivity and truth and has been attacked by legal critics, e.g. Jacques Derrida and Roberto Unger, who deny the objectivity of morality. Their emphasis is on the ‘will’, which they say is the main generator of decisions. Raz’s account is only limited because it is circumspect: it says nothing about the role of the will (p.7). Raz’s view, according to Macklem, is that there is a “good deal more” when we try to understand what law is. Subsequent chapters of the book endeavour to show what this “good deal more” is that determines what the law is.
The second chapter begins by exploring the dilemma between external and internal reasons for action as set up by Bernard Williams in “Internal and External Reasons”.[1] According to Williams, we need to explain how our psychological and motivational make up (internal reasons) is connected to external reasons for actions, i.e. reasons that demand us to do what ‘we ought to do’. For Macklem, the gap between internal and external reasons is due to the presence of a reason and the ‘impetus’ to act according to that reason. One often feels, “profoundly indecisive in the face of alternative courses of action, both of which one feels like doing” (p.11). Sometimes there are too many alternatives and one has all the required information about them, and still one do not know what to do. Because the options are incomparable, Macklem tells us, none can be defeated. He suggeststhat in these cases, although reason and evaluation are supposed to provide us with the tools to know what to do, reason cannot guide us (p.14). He asserts that there is a problem of action, both individual and collective, when reason runs out (p.16). He concludes, “in order to proceed, by one action rather than another, or by action rather than inaction or vice versa, we must call upon not only reason but imagination and will.” (p.17).
The third chapter focuses on the role of coercion, force or will in understanding law and legal systems. The critical legal studies movement illuminates, according to the author, the role of will in the decision-making processes of judges and, more specifically, the role of will in reasons for actions (p.29). The problem of critical theory, Macklem points out, is that these theorists believe it is only the will that plays a key part in actions.
In the fourth chapter of the book, Macklem focuses on Dworkin’s theory of constructive interpretation and asserts that Dworkin’s legal theory is the account that comes closest to establishing the role of imagination in our life in common.
Chapters five and six focus on Raz’s Service Conception of Authority to show that it is self-consciously modest and silent concerning the role of the will.
Chapter seven discusses Finnis’s methodology of central cases or paradigms where a practice (or activity)ought to be identified by its point as value. Macklem gives one key example in which a practice, i.e. marriage, is not necessarily connected to its purpose because the practice changes according to our different understandings of its purpose or point, as values. In the past, Macklem tells us, the point of marriage was the union between a man and a woman; today it could equally include the union between two people of the same-sex. This counter-example shows, according to Macklem, that our practices are fluid, transitory, and open-ended, rather than stable and closed (p.152). Furthermore, according to Macklem, the method of central case or paradigmatic cases is problematic because it presupposes that the central case can be construed from reasonable cases of self-interpretation on the part of the parties who are engaged in the practice (p.160). He objects that practices are characterised by competing cases of self-interpretation, of which many cannot be excluded as unreasonable (p.160). He concludes that practical reason will not help us to distinguish traditional marriage from same-sex marriage, both of which are practically reasonable as purposes (p.161). In my judgement, posing the problem in this manner reflects a confusion about the role of practical reason in construing social practices. According to Finnis, the bundles of movements of human bodies individually and collectively are unintelligible unless we consider them from the point of view of the man or woman who exercises practical reason. That is, every human being due to his form of life and his own capacity to exercise practical reason, performs deliberative actions whose intelligibility is given by values which are the points of the action. Since social practices are constituted by human actions, we cannot understand social practices unless we understand the point in terms of value from the first-person perspective, i.e. when I am acting, which is the privileged position of practical reason. Within the tradition of Aristotle, Aquinas, Anscombe, Wittgenstein and Finnis, the will (practical reason) is not disintegrated into merely theoretical reason. We cannot see our own activity from outside as a spectator or as a representation. According to this tradition, the descriptive project is doomed to fail because it presupposes that we can make intelligible our actions (activity) by ‘observing them’. By contrast, our activity is given to us, i.e. we know why and what we are doing when we are doing it, and it only makes sense to point at paradigms or central cases that organise the diversity and multiplicity of our social practices. The investigation of central cases or paradigms begins with a grammar or logic that we already use. The inner grammar or logic determines the limits of what we can say. Marginal cases make sense, e.g. ‘law as the absence of coordination’, ‘unjust laws’, become intelligible when we place them in relation to the paradigmatic or central case of law, i.e. law that intends to coordinate and be just. In a similar way, a marriage that is only for ‘going on holiday every summer to the Maldives’ is not a marriage but something else, probably a holiday arrangement among friends. Same-sex marriage can be called ‘marriage’ because it is a commitment by two people to love and respect each other, and we understand this by its relationship to traditional marriage.
In the final chapter, Macklem concludes that law has no rational priority over other forms of social order and cooperation (p.188), though he also recognises that, “societies and cultures that underrate law, and thus underestimate what can be achieved with its assistance, thereby deny access to basic goods without which it is very difficult -perhaps impossible in most settings today- to build decent community of any kind.” (p.189).
The core argument of the book is grounded on the misleadingpremise that reason and will necessarily separate in contemporary legal theories. The monograph ignores the complexity of philosophical theories that argue precisely the opposite, e.g. Raz’s later work on moral philosophy and practical reason, and Finnis’s work on philosophy of action and practical reason. Macklem’s misdiagnosis isdue to misconceiving ‘will’. In crude terms, there are two key ideas of the will in the history of philosophical thinking on the topic. According to one philosophical view, the will is independent of our reasoning powers and is not subject to reasons. This is the voluntarist tradition that began in the early Modern period, continued with Hobbes and finds resonance is some contemporary critical theories of law. Arguably, following the voluntarist trend, if will is completely severed from reason, what is left is pure power. Will lacks direction and is presented as blind desire or brute power in different forms. According to another philosophical tradition, reason and will are interwoven and the exercise of our practical reason shows both the interplay of desires (will) and the intelligibility of the action ordered by our reasoning powers. According to this perspective, the will has directionality because it is informed by reason. Will is not something additional to reason, as Macklem has portrayed it. When we act intentionally and voluntarily, we are active and produce a state of affairs in the world as our reason understands it (practical reason). Will and practical reason run in parallel. This latter intellectualist tradition of the will is rooted in Aristotle and Aquinas and is present in Raz’s later work on practical reason,[2] which helps to explicate his earlier work on the Service Conception of Authority. We can therefore accept Macklem’s unifying project only if we accept the voluntarist conception of the will. However, I doubt that this does justice to the richness and complexity of contemporary legal theory and the idea of law as social practice. There is much to say about these two conceptions of the will and the way that legal theory has anchored itself in one tradition to the detriment of the other, but space in this review is unfortunately limited.
Overall, the book is very readable and its great strength lies in the fact that difficult issues are presented and analysed in an accessible way. The prose is fresh and extremely clear. Macklem has raised fundamental and illuminating questions, but his solution, if I may say respectfully, is not completely satisfactory.
[1]B. Williams, “Internal and External Reasons”. In: Moral Luck (Cambridge1981).
[2]Raz, J., Engaging Reason: On The Theory of Value and Action (Oxford 1999).