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The Common Law According to Hegel

The Unity of the Common Law: Studies in Hegelian Jurisprudence by Alan Brudner
Review by: William N. R. Lucy
Oxford Journal of Legal Studies, Vol. 17, No. 4 (Winter, 1997), pp. 685-703
Published by: Oxford University Press
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The
Common Law
According
to
Hegel*
WILLIAM N. R.
LUCYt
G. W. F.
Hegel
was one of the West's
pre-eminent philosophers.
His
thought
marked and still exerts influence
upon European
culture and
philosophy.
Further,
his work is now in
vogue again,
since the
rejection
of communism in what was
the Eastern Bloc has
allegedly
discredited Marxist
thought.'
For a man whose
ideas have had such an enormous
geographical
and
temporal influence,
his life
was a testament to measured
insularity.
He was not one
in
the tradition of
displaced European
intellectuals about whom it could be
observed,
as Prince
von Metternich said of
himself,
that
Europe
was their fatherland.
Hegel
lived
almost his whole life in what we now call
Germany
and
spent only
a few
years
abroad in Switzerland
(1793-6).
In 1788 he
began
to
study philosophy
and
theology
at the
University
of
Tiibingen
although
his most fruitful
period
of
study
was
probably
the
years spent
as student and then lecturer at the
University
of
Jena (1801-6).
After a
period
as a school
master, Hegel spent
the remainder of his
life as a
professor
of
philosophy,
first at
Heidelberg (1816-18)
and
subsequently
at
Berlin
(1818-31).
A more
insistent,
contrived
insularity
than that which marked
Hegel's
life
is,
for
some,
the hallmark of the
history
and
development
of the common law. The
guardians
of the common law seem to have
repelled continental,
civil law
influences with
alacrity;2 further, they enthusiastically ignored
and
marginalized
the efforts of
many
domestic rationalizers of the law informed
by
the
insights
of
other
disciplines.3
So
great
was the
insularity
of the common law and its
guardians
that it sometimes manifested itself as an
inability
to see how other
legal systems
*
A review of Alan
Brudner, The Unity of
the Common Law: Studies in
Hegdian Jurisprudence (Berkeley: University
of California
Press, 1995).
t
Law
School, University
of Hull. Thanks to P.
Cane,
A.
Fitzsimmons
and G.
Johnstone
for comments and
help. Nothing
of what is said here is their fault.
'
Hegel's
most
important
works include
Phenomenology of
Mind
(1807)
tr A.
V. Miller, Oxford,
1977 and called
The
Phenomenology of Spirit;
The Science
of Logic (1812,
1813 and
1816) tr
A.
V. Miller, London, 1969,
and
Phdlosophy of Right (1821) tr
T. M. Knox, Oxford,
1967. Two
attempts
to show
Hegel's allegedly greater
relevance
to the
present
than the
past
are: D. Cornell,
M. Rosenfeld and D. Carlson
(eds), Hegel
and
Legal
77Theory
(New
York:
Routledge, 1991), particularly
at ix-xii;
and F.
Fukuyama,
The End
of History
and the Last Man
(Har-
mondsworth:
Penguin, 1992).
2
For
attempts
to
paint
another
picture
see R.
Zimmerman, The Law
of Obligations (Oxford:
Clarendon Press,
1996)
chs 18 and
19;
also
814-17,
913-14 and
1031-47; J. Gordley,
The
Philosophical Origins of Modern Contract
Doctnne (Oxford:
Clarendon
Press, 1991)
chs 1-6.
3
For an
arresting
account see P.
Goodrich, Languages of
the Law:
From Logics of
Memory to Nomadic Masks
(London: Weidenfeld and
Nicolson, 1990)
ch 2.
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686
Oxford Journal of Legal
Studies
VOL. 17
could
possibly
be different. For
example,
it was assumed
by
one
judge
that the
geographically
closest civilian
legal system
must be but a mirror
image
of
English
common law: 'if such be the law of
England,
then on what
ground
can it be
argued
not to be the law of Scotland?'.'
There is no record of
Hegel having
travelled to
England
and his
very
few
comments about the common law
were,
as Alan Brudner notes in his
marvellously
written and
admirably
ambitious
book, disparaging.5 Yet,
the relative
insularity
of
Hegel's experience,
combined with the determined
insularity
of the common
law,
do not deter Brudner from his
task,
which is to
explain
the form and content
of the common law in
Hegelian
terms.
So, although Hegel
made no
attempt
to
understand the common law of his
time,
and even
though
he
provided only
the
'structural
outlines of a
philosophy
of the civil law'
(9),
Brudner thinks this task
worthwhile.
Echoing
the
position
in relation to
Marx,
Brudner states
there is no fleshed-out
Hegelian jurisprudence
that one can
simply
and
directly expound.
There
is, however,
both an outline and a
philosophic
method
by
which one can
interpret
the common-law tradition as it has evolved to the
present
and with whose aid one can
develop
a coherent
position
toward the controversies and conundrums that beset the
current
thinking
about law
(ibid).
This outline and
philosophic
method hold out a
promise
for the common law:
to unearth its inner
descriptive
and normative
nature, thereby rescuing
it from
those who would
appropriate
it for the fulfillment of instrumental
goals.
'A
Hegelian understanding
of the common law seeks not
only
to disclose its
specific
coherence;
it seeks also to
justify
that coherence as
possessing
normative
validity.
It is
descriptive
and
justificatory
at once'
(ibid).
The
discussion that follows falls into two sections. The first and
longest
deals
with the
descriptive part
of Brudner's account of the common law and examines
in
particular
the
'philosophic
method'
upon
which it rests. The second
briefly
tackles the normative vision that this method
yields,
a vision
supposedly
immanent
within the common law. Of
course,
this division is artificial
and,
since Brudner's
account is
'descriptive
and
justificatory
at
once',
false to the nature of his
enterprise.
I
hope pressures
of time and
space
at least
partially justify
such
cavalier treatment.
Both sections offer some criticisms of Brudner's
argument but,
in so
doing,
avoid two
tempting, related, yet illegitimate paths.
The first is the critical
manoeuvre of
'bumping paradigms'
in which
Hegel's thought
would be measured
against
another
system and, presumably,
found
wanting.
This critical
strategy
is
never
particularly
fruitful unless the
competing paradigm
is in some sense
justified
rather than
asserted; and,
in the case of Brudner's
work,
is irrelevant since he
does not set himself the task of
defending
the
Hegelian corpus (18-19).
The
4
Barnonshill
Coal Co v Reid
(1858)
3
Macq 266, 285. I
am indebted to Ewan McKendrick for the reference
which
appears
in his
'English Contract Law;
A Rich
Past,
An Uncertain Future?' in
(1997) Cumnr
nt
Legal
Problems
(forthcoming).
5
The Unity of the Common Law, above, 8. Hereinafter all page references in brackets in the text are to this work;
page references in notes will be preceded by
'U'.
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WINTER
1997
The Common
Law
According
to
Hegel
687
only
defence he offers is
extremely
limited and reduces to
showing that,
if
Hegel's
thought
can make some sense of the common
law,
then it has some
presumptive
claim on our attention. To avoid this
misguided
line of
criticism,
most of the
arguments
that follow
highlight
interstitial
snags,
difficulties internal to the
system
of
argument
Brudner
develops.
The
second, illegitimate
critical
path taps
into a strain of intolerance within
Anglo-American linguistic philosophy
directed toward
'metaphysical' thinking.
Hegel's philosophy
was but one victim of this intolerance which manifested itself
in the view that his
thought
was
unnecessarily oblique. So,
the view that
Hegel
'systematically
confuses statements about
language
with statements about matters
of fact
...
[,] irretrievably
muddles
up logical
with
psychological
and
biological
arguments
...
[and]
uses a cumbersome and
high-sounding terminology
which
has a
mystifying effect'6
is not
unique.
But such views were
rarely
based on the
undoubtedly
onerous task of
grappling
with
Hegel's work; rather, they
often
seemed to be little more than deductions from the
supposed
'truths' of
linguistic
philosophy. Consequently, Hegel's philosophy
has an
illegitimately
bad
reputation
that still
hangs
on to this
day, despite
the fact that this strain of intolerance is
now-just
like
linguistic philosophy--on
the decline. It would be a
pity
were
jurists
to
repeat
it
simply by approaching Hegel's thought
on the initial
assumption
that it is somehow odd and
oblique.
Such an
assumption encourages premature
and somewhat facile criticism. The discussion that follows
aspires
to avoid that
and to
displace
the
assumption upon
which it is based. Rather than
assuming
that
Hegel's thought
is odd and
oblique,
what follows assumes
only that,
for
those schooled within the
Anglo-American legal philosophical
tradition of the
mid- to late-twentieth
century, Hegel's thought
is
undoubtedly
different and
challenging. Thankfully,
Brudner's
book,
albeit
complete
with occasional cum-
bersome
Hegelianisms,
can
open
our
eyes
to the fruitfulness of the
challenge
Hegel's thought
offers to
contemporary legal philosophy.
1.
The
Philosophic
Method
It is
useful,
in
attempting
to
clarify
the
advantages
and limits of the method that
underpins
Brudner's account of the common
law,
to understand the issue that
both his method and substantive account of the law address. The limits of the
method are two: it can neither
guarantee
a solution to the
problem
of the
type
Brudner
appears
to want nor can it remain
stable,
since it is an
unholy
alliance
of the verstehende method and the
Hegelian
notion of Geist. The notions of
verstehen and Geist will be
unpacked
in due course.
The most
pressing
issue in
contemporary legal scholarship,
for
Brudner,
is the
apparent impossibility
of a non-instrumental account of the common law. A
non-instrumental account of the common law
portrays
it as 'an
ordering
of
6
T. Weldon, The Vocabulary of Politics (Harmondsworth: Penguin, 1953) at 107. A useful introductory sketch
of the nature and concerns of linguistic philosophy is found in B. Magee (ed), Men of Ideas (Oxford: Oxford
University Press, 1978) ch 7.
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688
Oxford Journal of Legal
Studies VOL. 17
human interactions
independent
of the
political
order directed to common ends
...
[;]
[as]
a
system
of rules ordered not to a -common
good
but to individual
rights
... conceived as
existing prior
to
any
association for a common
purpose'
(2).
The
apparent impossibility
of such an account resides in the obvious
difficulty
of
legitimating
the common law so understood: 'the common law's
autonomy
is now under attack
by
a
political
order
increasingly
confident of the moral
authority
of its ends and
increasingly skeptical
of the distinctive moral concerns
of
lawyers' (3). By contrast,
an instrumental account of the common law holds
that the law serves ends outside
itself,
those ends
usually being
'the common
ends of human association ... external to the
prepolitical
ends
by
which a
distinctive
private
law is
self-consciously organized' (11).
If the common ends
of human association are
easily justifiable,
then so too is the common law
provided
it embodies those ends. Instrumental accounts of the common law
therefore seem to avoid the crisis of
legitimacy
that ensnares non-instrumental
accounts. Lest we have
any
doubts as to whether the distinction between
instrumental and non-instrumental accounts of the common law is
represented
in
practice,
Brudner
provides many
illustrations
throughout
the
book,
drawn
from
judicial
and academic
practice,
and
pitched
at both the
practical-doctrinal
and
purely
theoretical levels. He holds that the
present
state of common law
thought
and
practice
is one of
'fragmentation'
between instrumental and non-
instrumental 'doctrinal
paradigms' (7).
This conflict and
fragmentation
is
played
out,
as the main
body
of the book
(chs 2-5)
shows in a
commendably
detailed
way,
within
many
of the doctrines of
contract, land,
criminal and tort law.
Understood in these
terms,
the
cleavage
between instrumental and non-
instrumental accounts of the common law or
private
law
(let
us take these as
synonyms) appears
as a normative
problem,
a matter of moral or
political
justification.
The
key question
is how can a realm of
practice-the
common
law--be justified independently
of the
grounds
that
might
be taken to
justify
the
particular political
and social order of which that
practice
is
part.
Hence it is no
surprise
that Brudner often casts the divide as one between
practices justifiable
on some
conception
of the common
good
and those
justifiable,
if at
all,
on
individualistic considerations such
as,
inter
alia,
a
conception
of the self
(10).
(Strictly speaking,
these two
types
of
justification
are not
necessarily
in-
compatible-an
account of the common
good
need not set us
against
one another
if,
as
independent selves,
we all have the same
needs.)
Nor should we be
surprised
when he hints that the non-instrumental/instrumental
divide
maps
onto the
old-and,
one
might think,
useless-liberal distinction between the
right
and
the
good (8
and
17).
Now the fact that the instrumental/non-instrumental distinction
poses
a
prob-
lem of normative
justification
does not inhibit
Brudner,
in true
Hegelian style,
from
attempting
to solve it in a non-normative
way. (Remember
that we are
dealing
with an
approach
that is at once
descriptive
and normative.)
For
example,
he
attempts
to redress the balance of
contemporary
common law
thought
and
practice
in favour of non-instrumental accounts
by discrediting
instrumental
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WINTER 1997 The Common Law
According
to
Hegel
689
accounts on
methodological grounds.
Brudner sometimes does much more than
this,
since on a number of occasions he
maps
the normative
problem directly
onto a
methodological cleavage.
The latter he takes to be a divide between those
efforts at
explaining
and
understanding
human
action, practices
and institutions
that take as the fulcrum of their
explanation
the view of the authors of action
or the
participants
in
practices
and
institutions,
and those that do not. The claim
he often makes is that instrumental accounts of the common law
misrepresent
or
ignore,
while non-instrumental accounts
capture
and
reflect,
the views of the
participants
in that
practice.
He
says
that
justifying
the common law in-
strumentally, by
reference to the common ends of human
association,
'is to hold
that
private
law's true end is
something
other than the one
apparent
to those
who
interpret private
law
from
within the
practice
of
private
law itself'
(11-12;
emphasis mine). '[B]y understanding private
law in
light
of an external
end, ...
[an instrumental] theory appears
from
the
jurists,
internal
perspective
as an artificial
construction of
private
law rather than a true account of it'
(13; emphasis mine).
Hence,
a non-instrumental account of the common
law,
for
Brudner, might
not
be
just
an account that seeks to
justify
the
practice by
recourse to considerations
independent
of those rooted in the common
good.
Such an account
might
also
be one that takes a
particular approach
in its efforts at
understanding
and
explaining
social
action,
an
approach
we can label as the verstehende method or
as
taking up
the internal
point
of
view.7 However,
Brudner's
apparent
elision of
normative and
methodological issues,
this
mapping
of one
problem directly
onto
another,
is a mistake. This can be shown without
invoking
a dubious and
strong
distinction between normative and
methodological
considerations.
We can see the mistake
by looking again
at the issue Brudner is
addressing.
It
is the
fragmentation
of the common law
along
instrumental and non-instrumental
lines. This
generates
conflict between different doctrinal
paradigms
such
as,
for
example,
reliance-based and will-based accounts of contractual
obligations
or
fault and no-fault
regimes
of accident law.
Now,
Brudner
only
knows that there
is a conflict of this kind within the common law because he has
already put
the
verstehende method to work: it discloses that the
participants
in the
practice
divide
along
instrumental and non-instrumental lines. In their
judgments
and
articles,
in their
lectures,
seminars and
arguments, they give
instrumental and
non-instrumental accounts of either the whole of the common law or
segments
thereof. Brudner takes on board much of what the
participants say
about the
nature-or the
point, purpose
and value-of the
practice
of which
they
are
part.
Hence, utilizing
the vestehende method allows Brudner to see the
difficulty
he
hopes
to resolve. Can it also allow him to solve it? I do not think so. At
least,
the method cannot solve the
difficulty
if it has
generated
a correct
picture
of the
nature of
participants' thought
about the
practice
in the first
place. If,
on
taking
7See M.
WWeber,
G. Roth and C. Wittich
(eds), Economy
and
Society (New
York: Bedminster
Press, 1968) chl;
J. Finnis, Natural
Lawz
and Natural
Rights
(Oxford:
Clarendon
Press, 1980) chl;
S.
Toddington, Rationality,
Social
lAction
and Moral
Judgtnunt
(Edinburgh: Edinburgh University Press, 1993) chs 3-6;
W. Lucy, 'Criticizing and
Constructing Accounts of Legal Reasoning' (1994) 14
OJLS
303, 315-33.
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690
Oxford Journal of Legal
Studies VOL. 17
up
the
viewpoint
of
participants
in the
practice
'common
law',
we come to the
conclusion,
as Brudner does
(2-5),
that
they
are divided
along
instrumental and
non-instrumental lines as to how that
practice
is best understood and
justified,
then we cannot
subsequently say,
as Brudner
does,
that instrumental accounts
of the common law conflict with the views of 'those within the
practice
of
private
law itself
(12). Rather,
some instrumental accounts must
actually represent
the
views of some
participants
for there to be a
meaningful
and
challenging dispute
along
instrumental/non-instrumental
lines. If all instrumental accounts of the
common law conflicted with
every participants'
view of the
point, purpose
and
value of that
practice,
then there would be no
problem
for Brudner to address.
He would
then,
and
only then,
be able to
say,
without fear of
contradiction,
that
instrumental accounts of the common law
'appear[
... ]
from the internal
jurists
perspective
as ... artificial constructs'
(13).
The verstehen
aspect
of Brudner's
method cannot
guarantee
the success of a non-instrumental account of the
common law.
The instrumental/non-instrumental divide cannot therefore be
mapped
onto
the
cleavage
between verstehende and non-verstehende methods. Nor can the
former method rule out or discredit one kind of account of the common law
and commend another if both are instantiated in the
language
and
practice
of
participants.
Moreover,
it is not
really
in Brudner's interest
completely
to discredit
one or other account of the common law because that would reduce the
apparent
power
of another
component
of his
philosophic
method, namely, Hegel's
notion
of Geist. This notion
is,
for the mature
Hegel,
the foundation of law and allows
us, despite
the fact that it is
apparently
riven
by fragmentation
and
conflict,
to
'interpret
the common law as a unified whole'
(8).
The essence of Geist or
dialogic community,
as Brudner renames
it,
is reconciliation. The notion allows
us to reconcile the
apparent
conflicts within the
thought
and
practice
of the
common law that
operate
at the normative level of conflict between instrumental
and
non-instrumental, good
based and
right
based
theories;
at the
methodological
level of conflict between verstehende and non-verstehende
methods;
and at the
doctrinal level. As if this were not
enough,
Brudner also maintains that
dialogic
community
allows us to offer a
description
of the common law that reflects the
views of the
participants
as to the
point, purpose
and value of that
practice
while
demonstrating
its normative value
by
reference to criteria
independent
of the
practice. '[A] Hegelian understanding
of the common law claims to unite ... a
cognitive
surrender to the law's internal
standpoint
as
complete
as
any
ethical
positivism
with a critical
perspective
on that
standpoint
as radical as
any utopian
idealism'
(10).
The
general
structure of the
argument
from
dialogic community is,
thanks
to Brudner's abstract and
specific illustrations, easily
stated. It consists of a
demonstration that the two
poles
of a conflict are
not, despite appearances,
actually incompatible. Rather, they
are
at
some deeper
level dependent upon
one
another.
Applied
to the normative conflict
represented by
the non-instrumental]
instrumental or
right/good divide, dialogic community generates
'the fundamental
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WINTER 1997 The Common Law
According
to
Hegel
691
insight
... that the common
good requires
a
private
law wherein the
good's
primacy
is surrendered in order that it
might
be confirmed as the
good through
the free
recognition
of
radically independent
selves'
(17). Hence,
'the mutual
recognition
of
community
and individual selfhood is for
Hegel
the
underlying
principle
of law'
(18).
The main
body
of
the
book shows how this
underlying
principle plays
itself out in
many
of areas of the common law. In
ignorance
of
the notion of
dialogic community
we would be led to
assume,
as
many do,
that
doctrines about the unlimited nature of
rights
and the unconscionable assertion
of
rights
in land
law,
or the notions of consideration and
promissory estoppel
in
contract,
are
obviously incompatible. But, according
to
Brudner, they
are not.
The
apparent
conflict between doctrines such as these is but a manifestation of
dialogic community,
a manifestation of a
deeper
connectedness. Each doctrine
actually requires
the other so as not to
displace
or subvert the value it tracks.
Put
crudely,
the idea is
simply
that one can have too much of a
good thing.
Let
us
suppose
that the doctrine of
consideration,
like
many
other doctrines of the
law of
contract,
embodies a notion of formal freedom. While that notion is
undoubtedly
a valuable
good
it is not the
only good
we value.
The
relentless
pursuit
of that
good
can
quite easily
thwart the achievement of other valuable
goods, goods
that correlate around notions like
interpersonal equity
or welfare.
Moreover,
the achievement of
nothing
but the
optimal
amount of formal freedom
could well turn out to be an almost worthless
goal
since it is
only
of value when
realised in
conjunction
with other values: 'How
many things by
season season'd
are'.8 Hence it can come as no
surprise
that the doctrine of consideration
ought
not to be
pursued single-mindedly,
that it should
quite properly
be
supplemented
with other doctrines. These doctrines rest
upon
other bases of
liability
and track
either
other, complementary,
distributive values or
simply
act as a brake
upon
the relentless and destructive
pursuit
of formal freedom. Of the two
supposedly
incompatible
doctrinal
paradigms
that inform the law of
contract,
one
being
founded
upon
formal
freedom,
the other
upon
distributive and
paternalist values,
Brudner
says
that 'each
paradigm
contradicts itself when
pursued
to the exclusion
of the other
[and this]
shows that each
requires
the other for its own coherence'
(148).
Where once we saw
conflict,
we now see
unity.
The
second
part
of Brudner's
philosophic
method-the notion of
dialogic
community-therefore
solves the
problem
he has become aware of thanks to the
deployment
of
verstehen,
the first
component
of his
philosophic
method. In
light
of the notion of
dialogic community
we know that a non-instrumental account
of the common law is not
impossible
but that such an account cannot
ultimately
stand
independently
of an instrumental account. Brudner also holds that the
other
multiple
conflicts in the common
law-between
good-based
and
right-
based
justifications
and between the various doctrinal
paradigms
in
contract,
tort, criminal and land
law--are
dissolved
by dialogic community.
While it
may
be
felt, in a
non-Hegelian spirit,
that this
process
of
reconciling
a
variety
of
8 W. Shakespeare, Merchant of Venice, Act V, sc, I. Brudner reports Portia's lament in the wonderful introduction
to his discussion of contract law
(U, 88) but it could easily be the emblem of the whole book.
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692
Oxford Journal of Legal
Studies
VOL.
17
ostensibly
different conflicts on the
grounds
of
dialogic community
is somewhat
reductive,'
this is not the most
pressing problein
Brudner's
argument
faces. For
it seems evident that the two
parts
of his method can and
actually
do
pull
in
opposite directions,
the one
highlighting
conflict and
incoherence,
the other
unity
and coherence. This
snag
is acute because Brudner holds that both
components
of his method are
very closely connected, perhaps
even entailed. A
successful
account of the common law must not
only
see its
underlying unity
but must also
portray
that
unity
as
participants
in the
practice
would.
For
Hegel,
an
understanding
of a
legal system
is validated when its
interpretative
principle-the principle
of
right underlying
the
variety
of rules-is
produced by
the
immanent
logic
of the norms
by
which the
legal system
is
self-consciously organised by
jurists.
Stated
otherwise,
the
justification
of
Hegel's
thematic
concept
consists in
depicting
the
logical
movement of
principles by
which the
theorists of
a
practice interpret
it
from
within
(20; emphasis mine).
The
snag
becomes obvious when two
questions
are considered.
A. Do
Participants
in the Practice
Speak Hegelian?
We
know,
because we have taken
up
the internal
point
of
view,
that
participants
in the
practice
view it in a number of
incompatible ways.
It seems
clear, however,
that
few,
if
any, participants
view the
practice
as a manifestation of
dialogic
community. So,
for
example,
we
rarely
if ever find
participants
in the
practice
'contract
law'
maintaining
that the 'innermost
significance [of
the doctrine of
consideration]
is that it embodies the
reciprocity
condition for the
objectified
end-status of the
person
that we call a contractual
right' (123).
And it is
equally
rare for
participants
to
regard any particular
doctrine or even the whole
body
of
property
law as 'a
dialogic
bond between
persons,
each of whose
personhood
needs and confirms the free and
equal personhood
of the other'
(58).
Somewhat
strangely,
Brudner
occasionally accepts
that the
participants
in the common law
do not characterize it as a manifestation of
dialogic community-'by
our own
admission this
postulate
is unknown to the
participants
in the common law
process' (288)-but
rather as an arena of irreconcilable conflict
(ibid
and
289).
However,
this concession is
extremely costly
since it
surely
undermines Brudner's
most distinctive and
challenging claim,
a claim that lies at the core of the book.
The claim is to have offered a
description
and
justification
of the common law
that:
(i)
accords both with the
language
and
understanding
of the
participants
in that
practice;
and
(ii) places dialogic community
at the core of that
description
and
justification. Doing
both would seem to demand that
participants
in the
practice
understand the
practice
as a manifestation of
dialogic community.
It is
this
point
that Brudner seems to have sacrificed. How can he do this while
insisting upon
the fusion of verstehen and Geist?
Brudner's answer is not
particularly convincing. Having accepted
that the
9
See J. Gardner, 'The Purity and Priority of Private Law' (1996) 46 Univrsiry of Toronto
L J 459, 481-3.
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WINTER
1997 The Common Law
According
to
Hegel
693
participants
in the
practice
do not
speak Hegelian,
he
goes
on to
argue
that this
is not a
problem.
An
interpretation
of law in terms of
dialogic community
is confirmed in its
fidelity
if
and when the law has
developed
to the
point
where the idea of
dialogic community
is
already implicit
in the oscillation and stalemate between communitarian and individualist
[and
instrumental and
non-instrumental] paradigms
of law....
Accordingly,
the idea
of
dialogic community
does not
oppose
the
viewpoint
of the
ordinary lawyer, insofar
as this
lawyer speaks of
a tension between individualism and
community,
he or she has
already
understood the bond between these
principles
and so has
already
understood
that neither is
separately
an absolute end
(289; emphasis mine).
So,
for
Brudner,
an account of the common law from the
viewpoint
of the
participants
of the
practice
need not
replicate
the
language
and
concepts
of
participants.
Rather,
it is sufficient to unearth what is
implicit
in the
practice,
regardless,
it
seems,
of the views of the
participants
as to what is
implicit
in the
practice.
Furthermore,
Brudner feels able to claim that his account of the
common law in terms of
dialogic community captures
the internal
point
of view
provided participants accept
that the
practice
is riven
by
conflict. For it seems
that
by
virtue of
this, participants
are
committed
to
accepting
that the
poles
of
the conflict are
complementary.
There are a number of reasons to
suggest
that
this
argument
is
richly problematic.
Consider
just
two.
First,
note that Brudner's
argument
is now that an account of a
practice
captures
the internal
point
of
view--represents
the
practice
as
participants
understand it-if it
captures
what is latent in the
practice.
Note also that what
we are told is latent in the
practice
need not accord with what the
participants
take to be latent in the
practice.
The
problem
this
presents
is that there is now
no
qualitative
distinction between the structure of this account of the common
law,
on the one
hand,
and the account offered
by proponents
of economic
analysis
of law
(EAL)
such as Richard
Posner,
on the other. The
early
Posner
claimed to have discovered
'[t]he [iJmplicit [e]conomic [l]ogic
of the
[c]ommon
[l]aw'.'0
He also believed that 'the true
grounds
of
legal
decision are concealed
rather than illuminated
by
the characteristic rhetoric of
opinions [including
his
own?]. Indeed, legal
education consists
primarily
of
learning
to
dig
beneath the
rhetorical
surface
of those
grounds'.
"
Now what is this
process
of
'digging beneath',
of
articulating
the
'implicit',
if not a
process
of
unearthing
what is latent?
And,
if that is
so,
is not the structure of Brudner's account of the common
law,
the
structure of his
explanation
and
understanding, exactly analogous
to Posner's?
True,
Posner and Brudner differ
radically
on what
they
think is latent within
the
practice-a
matter of wealth maximization
against dialogic community-but
their accounts have the same structure. This is
obviously
a
problem
for Brudner
because EAL is an
instrumental,
non-verstehen account of the common law if
ever there was one and, as is obvious from the
passages quoted
from Brudner
'o
R.
Posner, Economic Analysis of
Laoaw
(Boston: Little, Brown and
Co,
4th edn, 1992) at 251 (emphasis mine).
"
Ibid, at 23 (emphasis mine).
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694
Oxford Journal of Legal
Studies VOL. 17
above and from the tenor of his other comments on EAL
(see,
for
example, 8),
he sets his face
against
such accounts.
Second,
Brudner's
argument
that
dialogic community
is the
implicit unity
of
the common law can
only
clinch his case in
one, probably rare, situation, namely,
where
participants
in the
practice
embrace
dialogic community.
Brudner
says
that 'insofar as the
lawyer speaks'
of a tension within the common
law,
then he
or she is committed to
accepting
that the
poles
of this tension are not
ultimately
in
conflict.
Now,
there are at least two
grounds upon
which the conflict could
be denied.
First,
it could be
denied,
as Brudner
suggests, by embracing dialogic
community. Second,
it could be denied
by taking up
value
monism,
a
position
neither
particularly
uncommon nor
prima
facie
implausible.'2
Value monists
would
accept
a
putative tension,
or set of
conflicts,
within the common
law,
but
deny
that the tension is
genuine. They
could
suggest
that the tension is more
apparent
than real
first,
because it is
merely
the manifestation of conflict between
different instances of the
same, all-embracing value; and, second,
because that
value dominates
any
other value. The trouble with the first
ground
of the denial
is
that,
as we have
seen, dialogic community
is not
espoused by participants
in
the
practice.
If it
was,
then Brudner's
argument
would be
unproblematic. Clearly,
however,
some
participants
in the
practice
do
accept
that the common law is
riven
by
conflict and do not embrace
dialogic community.
How can such
participants
be said to be committed to
(i) denying
the conflict because
of (ii)
the truth of
dialogic community?
That
(ii)
in no
way necessarily
follows from
(i)
is clear from the
plausibility
of a value monist
response
to the existence of
conflict.
Moreover, (ii)
could
only
entail
(i)
in the situation in which the
participants
in the
practice
did not
espouse dialogic community
were another
premise interposed.
That
premise,
which can be labelled
(ii)"
must hold that
there are
independent
reasons to think that
dialogic community
is a true account
of the nature of the common law.
By 'independent
reasons' I mean reasons that
establish the truth of
dialogic community regardless
of the beliefs and
thoughts
of those involved in the
practice.
And this is indeed the rub. For if the notion
of
dialogic community
is the core of the common
law,
then Brudner seems
committed, by
virtue of his
ultimately quite
dismissive attitude to the views of
the
participants,
to
holding
that the notion
truly
describes the
practice
whatever
the
participants happen
to
say
or think."
Here, again,
the verstehende method
and
dialogic community pull
in
opposite
directions.
Brudner
might respond
to this
argument by denying
the
plausibility
of a value
monist
response
to conflict and
thereby suggest
that
dialogic community
was
the
only option
in the face of such conflict.
However,
his denial of the
plausibility
12 The position is usually associated with Benthamite accounts of utilitarianism but it has some role to
play
in
more
sophisticated
versions of that doctrine: see J. Griffin, lVel-Bcing (Oxford:
Clarendon Press, 1986)
ch
II.
13
'If law's true nature lies in its conformity with an idea ... then an
interpretation
of a
legal
tradition in
light
of this idea will be faithful to the true nature of law. More generally,
if the nature of a practice
is given by its ideal
development, then cognition in light of the ideal yields a true understanding and valuation of the
practice'
(U,
263; emphasis mine). It seems that here, at least, what Brudner means by 'true' is 'true regardless of the views of
participants in the practice "law"'.
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WINTER 1997 The Common Law
According
to
Hegel
695
of value monism would not
help
his case
if,
as one has
every right
to
expect,
the
denial were
premised upon dialogic community.
For
example,
Brudner
might
use an
argument
he
employs often, namely,
that the relentless
pursuit
of a
single
value thwarts that value. He
might
then draw the
implication
that other,
supplementary
values must also be
pursued.
But this attack
upon
value monism
only
seems to
get going
if it is assumed that
dialogic community
has some
claim
upon
us at the
outset,
that there are
independent
reasons
establishing
its
truth.
Alternatively,
Brudner
might attempt
to show that
(ii),
the truth of
dialogic
community,
does entail
(i),
the denial of conflict within the common law.
And,
there is indeed an obvious
way
of
doing
this
since, given
the
meaning
Brudner
attributes to
dialogic community,
it does entail a denial of
pervasive,
unavoidable
conflict. But this does not
help
Brudner's case since he wants to establish not
just
a
logical
connection between
(i)
and
(ii)
but between
(i), (ii)
and the views
of
participants
in the
practice
about the nature of the
practice.
If
participants
in
the
practice
do not
speak Hegelian,
I do not see how this can be done.
B. Does
Every
Detail Matter?
The second
question
which shows how the
component parts
of Brudner's
philosophic
method
pull
in different directions is this: must an account of social
actions,
institutions and
practices
that seeks to
capture
the internal
point
of
view, incorporate every
detail of those
actions,
institutions and
practices
as the
participants
understand them? An affirmative answer to this
question
would
seem to reduce
attempts
at
explanation
and
understanding
of social
practices
and actions to mere
reportage,
a
detailing-in principle incapable
of
completion
if the number of
descriptions
of an action or
practice
is infinite-of the views of
every participant."
While problematic
in this
sense,
an affirmative answer to the
question
nevertheless ensures that one's
attempts
at
explanation
and under-
standing always capture
the views of the
participants.
However,
like
many
who
employ
the verstehende
method,
Brudner offers a
negative
answer to this
question.
He does not think that an account of law is
open
to falsification if it fails to fit
every
detail of the
practice
it
purports
to describe
(265). And,
he describes the
work of the theorist of a
practice
as
being
akin to that of the self-aware
participant
in a
practice.
It entails
'processes
wherein those
engaged
in a
practice try
to
intuit its
point,
to
purify
it
of
inessential
elements,
and to
develop
the
practice
further'
(264; emphasis mine).
For this sketch of his method to be
plausible,
Brudner must
provide
an account of the
way
in which it is
possible
to
'purify
a
practice
of its inessential elements' and still
capture
the internal
point
of view.
Against
what criteria is this
process
of
purifying
the
practice
conducted? That
is,
what factors
guide
the
process
of
picking
out that which is central and that
which is
peripheral,
of
identifying
what is of maximum value and what of
minimum
value,
within the
practice?
I For
a
social theory that does not seem to go beyond reportage see H. Garfinkel, Studies in Ethnomethodology
(New Jersey: Prentice-Hall, 1967) vii-ix and chs 1-2.
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696
Oxford Journal of Legal
Studies
VOL.
17
There are at least two answers: either
appeal
to the criteria the
participants
use
or,
insofar as there is a
difference, appeal
to the criteria theorists'
employ.
Initially,
we
might
be
tempted
to think that because of the
apparent importance
he attaches to
capturing
the internal
point
of
view,
Brudner would hold that
the two answers must be the same.
But,
since we now know that he
accepts
that 'the
principle
of
right by
which ...
[he] interpret[s]
the common law is
not the
principle
that
self-consciously
animates it'
(288),
he must hold instead
that the two answers are different. In which
case,
we need to know the
criteria Brudner
qua
theorist
employs
and from whence
they
come. The
answer, unsurprisingly,
seems to be that the criteria Brudner
employs
are
rooted
in,
and
designed
to instantiate in the common
law,
the notion of
dialogic community.
Brudner holds that
dialogic community
is not
just
the
inner unity
of the common law. The
notion,
understood now as the
relationship
between mind and
other-than-mind,
also allows the
possibility
of
interpretative
fidelity
and therefore avoids
interpretative scepticism (277-85).'5
Brudner
thinks this
Hegelian
division of the world into mind and other-than-mind is
necessary
to
escape
difficulties that beset standard
social-philosophical
accounts
of
interpretation.
These accounts run into two
snags. First, they
either
ontologise
a realm of 'brute facts' that
any interpretation
of social action or
practice
must
'fit',
but in so
doing usually: (i)
fail to state how we are
gain
knowledge
of brute facts in an
epistemologically plausible way;
and
(ii)
fail
to
acknowledge
that 'brute facts' are
humanly
created and can therefore be
recreated via action and
interpretation. Or, second,
accounts of
interpretation
accept
that there is no
theory-independent
realm of brute facts
against
which
one can assess the
fidelity
of an
interpretation,
but in so
doing they
eschew
the
possibility
of
being
able to
judge interpretations
as better or
worse, right
or
wrong.
Whereas the first account makes
interpretation impossible
because
that
against
which
interpretations
are
judged
is either unavailable to us or
already
the result of
interpretation,
the second account ensures that
fidelity
in
interpretation
is
impossible
because
everything
is
interpretation.
Brudner's
way
out of this bind consists of an
analysis
of what is common to
both accounts of
interpretation.
He thinks that the two accounts are united in
invoking
some notion of an
interpreting
mind but even this does not ensure the
possibility
of
fidelity
in
interpretation. For, although interpretation presupposes
an
interpreting mind,
there must also be
something
for mind to
interpret.
It is
at this
point
that Brudner unveils another
argument
from
dialogic community,
similar in structure to other versions of the notion
employed
in the
book,
since
it shows that
putative opposites-in
this case mind and
other-than-mind-require
one another.
However,
this
argument
is also
significantly
different from
many
"
Hence, '[t]he ground of interpretation
and the
theme
of interpretation
are one and the same': U, at 286.
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WINTER
1997 The Common Law
According
to
Hegel
697
of Brudner's
arguments
from
dialogic community
because it
operates
not at the
level of
analysis
of social
practices,
but at the level of the
possibility
of in-
terpretation
of such
practices.
The
argument
is that mind-which 'is here not
this or that individual mind but the universal mind of a human
community'
(280)-is
incoherent unless there is
something
other than mind
against
which
it is contrasted and which mind can
grasp.
And the other-than-mind takes on
significance only
if mind exists so as to
apprehend
it:
Each
pole
now submits to the other as to that
through
whose
recognition
each is
confirmed as an end. Thus the other... defers to mind as to that
through
whose need
it first
acquires
an essential
value;
and mind
reciprocally
defers to the
independence
of the
other,
which confirms
mind's
dialogic
structure as the other's own
structure,
in
which
mind sees itself reflected. We
arrive, then,
at the bedrock
reality
that
guarantees
the
fidelity
of
interpretation
in terms of
dialogic community:
the
dialogic community
that characterizes mind also characterizes the
relationship
between mind and its
other;
hence,
this structure is
indwelling
in the
independent object
itself
(283).
Now this is a dense and difficult
passage
and I am
doing
Brudner an
injustice
quoting
it out of context. For
present purposes
we need not
unpack
its
every
nuance to see two
points. First,
it shows the means
by
which Brudner
hopes
to
avoid
interpretative scepticism:
the
fidelity
of
interpretations-which
are the
work of mind-can be
judged against
that which is other-than-mind. This
argument supposedly
avoids the
problems
that beset standard accounts of
interpretation. Second,
an
interpretation-of actions, practices
and
institutions-
succeeds
only
insofar as it
displays
the immanence of
dialogic community
within
those
actions, practices
and institutions and
only
insofar as it is itself an instance
of
dialogic community,
of the
interplay
between mind and other-than-mind.
This second
point
is crucial for
present purposes:
it seems to show
beyond
doubt
that
interpretation
in
light
of
dialogic community ultimately
makes no
appeal
to
the views of the authors of actions or the
participants
in
practices
and institutions.
Hence,
for
Brudner,
the
important aspects
of an institution or
practice-its
crucial
rather than inessential elements-are those
upon
which
dialogic community,
as both emblem of the common law and
precondition
for the
possibility
of
interpretation,
confers
significance. And,
as is
obvious,
there is no
strong
con-
nection between the edicts of
dialogic community
and the views of
participants.
Yet
again,
it seems that the connection Brudner
hopes
to
forge
between Geist
and the method of verstehende comes undone.
Finally,
note two
points. First,
this second
question-must
the theorist who
takes
up
the internal
point
of view
capture every
detail of the
practice?-has
ensnared
many proponents
of the verstehende method. Brudner is not
unique
because he has difficulties here.
However,
within
contemporary legal-philo-
sophical circles,
his
Hegelian answer, problems
and
all,
is
unique.
It would be
useful to
compare
the
problems
his answer faces with the
problems generated
by non-Hegelian accounts that aim to show how far the theorist committed to
capturing
the internal
point
of view can
depart from, or discriminate
among,
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698
Oxford Journal of Legal
Studies VOL
17
the views of
participants." Unfortunately,
neither
space
nor the
promised
avoidance of
'paradigm bumping' permit
me to tackle this
question
here.
Second,
the
points
made
against
Brudner's method in this section do
nothing
to undermine
the value of his
analysis
of the common
law,
to weaken the
power
of his
finely-
worked,
detailed articulation of common law doctrines as the embodiment of
Geist. At
least, nothing
said undermines this
part
of Brudner's
project
once it is
divorced from one of his claims for
it, namely,
that it somehow
captures
the
internal
point
of view.
Setting
that claim
aside,
and
judging
Brudner's account
in a
way
he
attempts
to
resist,
as
just
one more 'external' theoretical
perspective
on the common
law,
it is
immensely suggestive
and rich. If Brudner takes this
conclusion as a
rejection
of the central
aspiration
of his account of the common
law, namely,
the combination of Geist and
verstehen,
then so be it. Either the
judgment
that Brudner's account is
just
one more 'external
perspective'
must
stand until such time as Brudner can show that he is able to
stop
the
component
parts
of his method
pulling
in
opposite
direction-and until such time as it is
clear that he has not
actively encouraged
this
process. Or,
Brudner must
accept
that the combination of Geist and verstehen is nowhere near as
important
as he
sometimes
suggests.
2. The Normative Vision
Brudner's normative vision of the common law is
dialogic community. What,
exactly,
does this mean? On the basis of Brudner's discussion of the
law,
the
answer
appears uninspiring. Dialogic community
is the
unity
of subunities within
the common
law,
the realization that
alleged
doctrinal
opposites
are in fact
connected. If
dialogic community
does not
go beyond saying,
for
example,
that
the doctrines of consideration and
estoppel
are
ultimately complementary,
then
it is indeed mundane. Yet it is a mistake not to set our
sights higher
than
doctrine. Brudner holds that doctrinal
developments
are but manifestations of
a broader
vision,
a vision that combines formal liberal values with the
insights
of communitarian
political philosophy.
On the normative
level,
the
overarching
truth of
dialogic community
is that we are both
formally free, self-interested
rights-bearers
and
agents
whose identities are constituted
by
our
membership
in
communities, groups
and traditions.'" Furthermore,
the notion of
dialogic
community
not
only
affirms the
poles
of this
opposition
but maintains that
16
See, for example, Finnis, above n7, 11-18. Some of the
problems with
Finnis's
argument
have
been
noted
by Toddington
and
myself
in the sources
cited,
above n7.
17
Brudner's normative vision-and the normative vision of the common law-is therefore an ambitious
combination of
possessive
individualism as sketched
by
C. B. MacPherson in
The
Political
Theoiy
of
Posscsszzst
Individualism (Oxford:
Clarendon Press, 1962)
on the one
hand,
and the
political
and
metaphysical
claims
of
contemporary philosophical communitarians
such as M.
Sandel,
Liberalism
and the Limits
of
Justice (Cambridge:
Cambridge University Press, 1982); C. Taylor, Sources of
the
Self (Cambridge: Cambridge University
Press, 1980)
and those who hold that 'human individuals have a common good that is attained only within a political
community'
(U, at 4, n). An indication of the ambitious nature of Brudner's claim is that it would be quite an achievement to
establish that proponents
of the latter position were
consistent one with another, never mind to establish that their
positions
were also consistent with the assumptions
of possessive
individualism.
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WINTER 1997 The Common Law
According
to
Hegel
699
neither
pole
can be
fully
realised without the other. This
unity
of individualism
and communitarianism means that
dialogic community
is
a relation formed
by
the mutual surrender of free and
equal selves,
...
[it]
is the
structure of all
non-violent, non-domineering
realizations of final
ends,
however these
ends
may
be conceived
(whether individually
or
communally);
hence it is the structure
of all valid claims to
respect
and concern as well as of their
corresponding obligations
(287).
This looks
altogether
more
inspiring. However,
this vision raises two connected
questions.
First,
the nature of the
relationship
between the normative vision of the
common law and the
practice
of the common law needs to be established. Since
Brudner's account of the common law is both
descriptive
and
justificatory,
we
might expect
that the common law's normative vision is found
by examining
what the
participants
in the
practice
take it to be.
However,
our discussion in
the
previous
section shows this to be a mistake. At the
strongest,
Brudner holds
that the normative vision of the common law is
only
latent within
it, occasionally
hinted
at,
or
imperfectly grasped, by participants.
At the
weakest,
he comes close
to
saying
that the normative vision of the common law is
simply
external to it:
'the normative standard
by
which reflection
interprets
the common law is different
from that which
manifestly
informs it'
(288).
Brudner
clearly requires
some
considerable distance between the
practice
and the normative vision of the
common law in order to avoid the rebuke
that,
in
accepting
the
participants
view of the normative
import
of the common
law,
he is
simply accepting
conventional or dominant 'wisdom' rather than
taking up
an
independently
justifiable
moral or
political position (267). But,
as we have
already seen,
achieving
such distance
imperils
his
attempt
to remain
faithful
to the
participants'
point
of view.
If the normative vision of the common law is to some
degree
external to the
practice,
then it must be
possible
to formulate it
independently
of the
practice.
And,
as is
plain
from Brudner's statement at the
beginning
of this
section,
that
is indeed the case. This raises a second
question:
what
power
does this vision
have over us? This
question
is rather
vague
but it can be subdivided and made
more
manageable
thus.
First,
does Brudner's vision of the common law
generate
any
reasons for action
and,
if
so,
what kind?
Second,
is there
any
room for
individual action within this normative vision and the historicist
philosophy
of
which it is
part? Third,
is the content of the vision such that it can
actually
inform individuals' actions? These
questions
are
obviously pertinent
to
any
account that
purports
not
only
to describe but also to show the normative value
of a
practice. Hence,
it cannot be a mistake to ask them of Brudner's
Hegelian
account of the common law even
though
some of the
questions
look
distinctly
odd within the context of
Hegel's philosophy.
Part of the oddness, as Allen
Wood notes, results from the fact that
'Hegel
treats "the will" not from the
perspective
of the volitional
agent engaging
in
practical deliberation, but from
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700
Oxford
Journal of Legal
Studies
VOL.
17
the
perspective
of the
speculative philosopher contemplating
the will and its
mode of actualization'.'8
I treat these
questions
in the order
asked, taking up
the
perspective
of an
agent engaged in practical
deliberation.
An answer sometimes
given
to the first
question by Hegel
scholars is this:
whatever reasons for action
Hegel's philosophy may generate,
it
certainly
does
not
supply
moral reasons for
action."9
This claim has
nothing
to do with the
nature or lack of
any relationship
between
morality
and
rationality.
It is based
neither
upon
a claim about the
impossibility
of
having knowledge
of moral truths
nor about the
inability
of such moral truths to
generate
action.
Rather,
this view
is
simply
based
upon
the claim that
Hegel
eschews the kind of moral
arguments
supposedly
found in much moral
philosophy
from Kant onwards. It is said that
he
simply
does not deal in such
currency.
His
antipathy
to such
arguments
is
based
upon
the fact that
they
are
quite deliberately
not
historically situated,
that
they
seek to abstract from
particularities
of time and
place,
that
they
invoke a
conception
of the
person
divorced from
any
constitutive ties to
community
and
place,
and that
they
seek to
generate
transcendent moral standards. It is said
that
Hegel scrupulously
avoids such
arguments
in all of his work and some
supposedly representative
statements-such as those contained in the
Philosophy
of Right
and the
Phenomenology of
Spinrt-are
invoked in
support.20 Now,
from
the tenor of Brudner's
text,
it seems
fairly
clear that he would not want to offer
this
response
to the
question.
That much is obvious from his claim to have
discovered the normative vision of the common law. The weakness of his
position,
however,
is that he
provides
no
argument
on this issue. Brudner
might
think the
claim that
Hegel
does not
peddle
moral
arguments unworthy
of a
response
but
it would be
helpful
to hear his
reasons.2'
After
all, many
have
seriously
held this
view. Nor is it a
good
excuse for Brudner to claim that he cannot do
everything.
For while that is indeed
true,
his claim to have unearthed the normative vision
of the common law is
hardly
a
peripheral part
of his
argument.
It is therefore
incumbent
upon
him to offer some account of the reasons for action-moral or
otherwise-that vision
might generate.
It
might
be
thought
that this
point gains
whatever
power
it has from
ignoring
one
argument
that both
Hegel
and Brudner could
easily
make for the normative
vision of the common law. The
argument, put brutally,
is that Brudner and
Hegel
have shown the rational
necessity
of
dialogic community.
This kind of
18 A.
Wood, Hegel's Ethical Thought (Cambridge: Cambridge University Press, 1990),
at
8.
19
There
is a
large
literature on what such reasons
may
look like and the nature of their
relationship
with other
reasons for action. Two useful starting points
are:
part
V of S.
Korner
(ed),
Practical Rcason
(Oxford:
Baiil
Blackwell, 1974);
S.
Darwall, Impartial
Reason
(Ithaca:
Cornell
University Press, 1983)
ch
14;
E. Bond, Rason
and Value
(Cambridge: Cambridge University Pres, 1983)
ch 2.
2)
Accessible statements of the
objection
are
Wood,
above
n18,
8-14 and
part Ill;
A.
Pottage, 'Property:
Re-
appropriating Hegel' (1990)
53 Modern
LR
259,
260-4. However,
the latter is a little
glib
and over-reliant
upon
A.
Kojeve's
sometimes
idiosyncratic
Innvduction a la
Lecture
de
Heged
(Paris:
Editions Gallimard, 1947),
an
English
version of which is A. Bloom
(ed),
Introduction
to the Reading of Hegel (New
York: Basic Books, 1969).
Some of
Hegel's gripes
about moral
philosophy
are found in the introduction to the
Philosophy of Right, supra, nl
and the
Phenomenology of Spirit, supra, nl, para.
434.
21
Readers should not assume that I have done any better in dealing with this issue: see
W.
Lucy and
F.
Barker,
'Justifyring
Property and Justifying Access' (1993) 6 Canadian
Journal
of Law and Jurisprudence 287, at 308.
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WINTER 1997 The Common Law
According
to
Hegel
701
claim
is,
after
all,
a central
trope
of
Hegel's thought
and lies behind the view
that his
philosophy
is
'a
rational
theodicy
of modem social
life'.22
It is
repeated,
or hinted
at,
in Brudner's numerous claims to have
'render[ed] perspicuous
the
internal
rationality
of the common
law',
to have
'express[ed]
its inner
necessity'
(9; emphasis mine).
It
might
be
maintained,
since Brudner has shown the rational
necessity
of
dialogic community,
that he has
thereby provided
individual
agents
with reasons to act so as to
uphold
or
pursue
that vision. This
argument
takes
us nowhere
except
back to the initial
question.
For the
problem
faced
by
the
claim to have shown the rational
necessity
of
dialogic community
is this: how
and
why
is that a moral
argument
or how and
why
does it
generate
reasons for
action?
Demonstrating
the rational
necessity
of a conclusion or
position
such
as,
for
example,
that 2 + 2 =
4, certainly gives
reasons for belief but does
not,
without
more, give
reasons for action
(moral
or
otherwise).
While this is one of
the main
arguments
used
against
those accounts of the nature of
morality,
such
as some versions of moral
realism,
that insist
upon
a
strong similarity
between
the
nature of moral and other
'truths',
it seems
just
as
problematic
for
Brudner.23
He
desperately
needs an
argument
he does not
provide, namely,
an
argument
showing why
the rational
necessity
of
dialogic community generates
reasons for
action rather than
just
reasons for
belief.
In the absence of such an
argument,
the conclusion that
Hegel
has no
practical arguments
at
all,
while it does not
follow, might
seem
appealing. Judith Shklar,
for
one, thought
so:
'Hegel
offers
no
argument
for or
against any
of his
selections, choices,
and
imputations.
We
can take or leave his account of the
experiences
of
consciousness'.24
Such a
conclusion robs the notion of
dialogic community
of all normative
power.
A
negative
answer to the second
question
arises from the
suspicion
that
Hegel's
philosophy
is driven
by
the desire to unmask the role of reason in
history
independently
of the actions of
particular, historically
situated
agents.
While it
might
be the
case,
from
Hegel's viewpoint,
that traditional moral
philosophizing
deals with
abstract,
non-situated
beings
and transcendent moral
principles,
this
objection
turns a version of the
argument
from abstraction
against Hegel.
It can
be maintained
that, despite Hegel's
concern to root
particular beliefs, practices
and bodies of
thought
within
history,
he nevertheless
provides
us with an abstract
historicist
philosophy. By calling Hegel's philosophy
abstract and historicist I
mean that it
generates
a
history
either without individual
agents-so
that the
engine
of
history
is the evolution of some combination of
supra-individual
concepts-or
within which individual
agents
lack
significant power
to influence
the historical
process. So,
for
example, Hegel's
account of notions such as
private
property
or the nature of the common law is a historical and
developmental
one.
Put
crudely,
his account tells us what
goals,
values and ideas are immanent in
history,
and are
played out,
albeit
dialectically,
within
concepts
like
property
and
22
Wood, above
n18.
23 The general point is well put by J. Waldron
in R.
George (ed), Natural
Law
Theory (Oxford: Clarendon
Press,
1992) 164-71.
24
J. Shklar, Freedom and Independence:
A
Study of the Political Ideas of Hegdel's 'Phenomenology of Mind' (Cambridge:
Cambridge University Press, 1976) at 14.
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702
Oxford Journal of Legal
Studies
VOL.
17
rights.
Individual
agents play
no obvious role in this
process-this
seems
vividly
apparent
in Brudner's
Hegelian
account of mind where mind is
understood,
remember,
as the universal mind of a human
community. Furthermore,
since
individual
agents play
no obvious role in the
unfolding
of
history,
it seems
unlikely
that
Hegel
can
give
such
agents
reasons for
action,
reasons to
promote
the historical
process.
Since
they
cannot influence the
unfolding
of
history,
it is
also otiose to
provide agents
with moral reason for action. Hence this
point
about the
redundancy
of individual action in
history
can be combined with the
argument
that there are no moral
arguments
in
Hegel.
It does
not, however,
depend upon
that
argument. For,
whether or not there are reasons
why agents
should care about the
way
in which
history
is
unfolding
does
nothing
to solve
the
problem
of the role of individual action in the historical
process.
If
Hegel
does indeed
provide
a
history
and
philosophy
without
agents,
does indeed
provide
an account of the
unfolding
of
history
such that the vision it embodies and is
evolving
toward comes about whatever individual
agents
do or refrain from
doing,
then both he and Brudner face an acute
problem.
The
problem
also
besets deterministic accounts of Marx's
thought
and has been
described,
in that
context,
with
customary elegance by
G. A. Cohen.
'[I]f
the advent of socialism
is
inevitable,
then
why
should Marx and
Engels,
and those whom
they hoped
to
activate,
strive to achieve socialism? How can their
activity
be
rational,
if
they
think socialism is bound to
come?'2s Analogously,
Brudner and
Hegel
can be
asked: if
dialogic community
is
inevitable,
then
why
act so as to
promote
or
maintain it?
The
third
and final
question
to ask of Brudner's account of the normative
vision of the common law is: when we know what
dialogic community
looks
like,
do we know what it
requires
in
particular
situations?
Suppose,
for
example,
a Lord of
Appeal
in
Ordinary,
familiar with
Hegel
and
Brudner,
is called
upon
to decide Re
Selectmove.26
Would what he learns of
dialogic community
in The
Unity of
the common
law
allow him to decide this case in the
way dialogic
community requires?
This
hypothetical
is not so fanciful as to be an unfair test
of Brudner's
argument
since he often
operates
at this level of detail. His
discussion of contract law as the
working
out of
dialogic community,
as a
story
of reconciliation between
putatively opposed doctrines,
is often like the best
case-notes one reads and includes much
fine-grained
assessment of doctrinal
and factual minutiae. Yet for
all
this concern with the intimate
workings
of
doctrine,
I am left uncertain that Brudner can
help
our
imaginary judge.
There
are a number of reasons for this.
First,
the
story
he tells of the manifestation of
dialogic community
within the
common law does not
easily
translate from the
past
to the future tense. The
problem
here is that mentioned above: the
spectre
of
history unfolding
without
agents
and the related
impression
that it unfolds whatever individual
agents
do.
In such a
picture,
the individual
judge
seems
insignificant. Second, uncertainty
25
G. A. Cohen,
History,
Labour and Freedom (Oxford: Clarendon Press, 1988) at 51 (emphasis in original).
26
[1995] 2 All ER 531.
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WINTER
1997
The
Common
Law
According
to
Hegel
703
arises because of the
apparently huge gap
between the abstract statement of
what
dialogic community
is-it
is,
inter
alia,
the structure of all
non-domineering,
non-violent realizations of final ends-and what it
might require
when
particular
doctrinal choices must be made
(does
it
require
the extension of Williams v
Roffey"~
to
partial payment cases?). Third, uncertainty
as to what
dialogic
community might require
in
particular
cases is also exacerbated
by
the fact that
the notion seems to take different forms in different contexts. At the level of
doctrine,
what
dialogic community
means within the law of contract is
quite
different from its
meaning
within the law of tort.
Moreover,
it seems that what
dialogic community
means-and hence what it
might require-may change
even
within the same area of
law-say
tort-when
manifesting
itself within different
doctrines. If there is such a
degree
of
uncertainty
as to what the normative
vision of the common law
requires-and, admittedly,
I have not come close to
establishing
that
here,
the
argument being impressionistic-then
that must be
considered a
problem. For,
if we
require
of such a vision some
response
to the
question
'What shall we do and how shall we
live?',
we
will
be dissatisfied with
a reply that begins 'It is not
clear...'.28
The
questions
raised in this section concern
only
Brudner's account of the
normative vision of the common law. The
underlying objection
is
simply
that
the vision
qua
normative vision is not
yet fully developed.
In the
previous
section some
complaints
were made about Brudner's
attempt
to
marry dialogic
community
or Geist to the verstehen method or the internal
point
of view.
Again,
the
underlying
refrain was that this
part
of Brudner's
argument
is not as
yet
completely developed.
What must be noted is that neither set of
objections
need
detract from what is the true value of the
book, namely,
the detailed consideration
and reconciliation of
various, supposedly contradictory, legal
doctrines. Dis-
charging
that task is in itself commendable.
Attempting,
while
doing that,
to
marry
two
apparently
different methods for
understanding
and
explaining
human
action,
as well as
generating
a viable and coherent normative
vision,
shows the
main weakness of Brudner's book: it is over-ambitious.
That,
of
course,
in
matters intellectual and
scholarly,
is far from
being
the worst kind of
failing.
Furthermore,
it is a
weakness, judging
from the
quality
of The
Unity of
the
conmmon
law,
that Brudner is more than able to
remedy
in
subsequent
work.
27
[1991] 1 All ER 512.
28 The question is attributed to Tolstoi by Weber: M. Weber, 'Science as a Vocation' in H. H. Gerth and C.
Wright Mills (eds),
From
Max Weber (New York: Oxford University Press, 1958) at 143.
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