The Noble Lie: A Rejoinder

Author(s): Ian Harden and Norman Lewis

Source: The Modern Law Review, Vol. 51, No. 6 (Nov., 1988), pp. 812-816
Published by: Wiley on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1096063
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812 THE MODERN LAW REVIEW [Vol. 51

THE NOBLE LIE: A REJOINDER

WE (and by implication the naivete extends to Sir Douglas Wass, former

joint head of the Home Civil Service) seem to have got everything wrong.
Suggestions that our work might have any value are as rare as home
grown peaches in Martin Loughlin's review of The Noble Lie. Our shirking
of "the central question of modern politics" is matched by our silence on
such difficult issues as procedures for legitimate social policy analysis;
distinguishing factionalism from collective action; and the nature of
learning. But since our ignorance of the relevant literature seems to
Loughlin to know no bounds this is hardly surprising, and is perhaps just
as well. About other matters-the relationships between law, government
and modern society and between constitutional reform and governmental
effectiveness-we are said to be vague and to present no clear picture of
our views. We are even ticked off about our title, which may deceive
those anxious to discover the workings of a British nomenklatura into
buying the book! If Loughlin hears of any such aggrieved purchasers,
perhaps he will let us know. Our view is that most will understand pretty
clearly that the "noble lie" is the claim that Britain is a country in which
the processes of government are subject to the rule of law. Nor will most
readers, we suspect, have any difficulty in identifying persons in authority
who make such a claim.
It is generally unwise to reply to book reviews. Even if others respond,
it is usually better for authors themselves to remain silent-like John
Griffith a decade ago following Kenneth Minogue's review of The Politics
of the Judiciary. However, Loughlin has so spectacularly misrepresented
our arguments in The Noble Lie that a response is called for, especially
since the tone of his conclusion implies that the wise reader will trouble
with the book no further. Such a conclusion is, of course, perfectly
legitimate, but only if the reviewer has first made the effort to understand
what the book is about.
Some of Loughlin's criticisms are plainly false. He asserts, for example,
that "[t]he issue they do not directly confront is that secrecy in British
government is not simply a convenience but is a necessary consequence of
the traditional constitutional structure." In fact, chapter five of The Noble
Lie contains a section entitled "secrecy: the cement of the constitution"
(p.143). Loughlin is perfectly entitled to claim that the arguments in that
section are inadequate or fallacious, but why should he deny that they
exist? More generally, all the issues which Loughlin raises are addressed in
The Noble Lie. It is said that we tend "simply to assume that the
transformation through law of the administrative process into a surrogate
political process will resolve the issue of constitutional accountability.
Apathy ... is never raised as a potential problem. Nor is the related
problem that the interest group 'heavenly chorus sings within a strong
upper-class accent."' More generally, our proposals are said to "make
light of the problems of policy-making in the modern state. The constraints
on politics suggested by Weber's work on bureaucracy or Michel's 'iron
law of oligarchy' receives (sic) little attention" (pp.543-544, footnotes
omitted).
Has Loughlin actually read the book at all? The need for constitutional
lawyers to address themselves to the problems of policy-making in the

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Nov. 1988] REVIEWS 813

modern state is its central theme, and chapters five, six and eight, in
particular, focus on analysis of the policy process. The defects of pluralistic
analysis of interest groups are specifically mentioned on p.157 and
"unrepresented but affected publics" on p.291, where certain Weberian
themes, present throughout the book, are also set out explicitly. Michel's
"iron law of oligarchy" is referred to on p.25 in the context of the
discussion of the rule of law and democracy.
Loughlin's principal complaint on all these matters seems to be that we
bring him problems rather than solutions. Now it is common for reviewers
to say that authors should have written different books, but to complain
because we have not written at least 10 different books is a little much. As
well as fully developed accounts of the matters already mentioned we are
required to produce a comparative treatment of the American and British
constitutions; an historical exegesis of Dicey; an account of the
constitutional influence of British idealist political philosophy; and a history
of the idea of the rule of law. It seems that the reason why Loughlin
regards it as legitimate to be more imperious even than the Iron Lady on
a bad day is because he thinks we have set ourselves such a ludicrously
overblown project. His criticisms of the substantive content of The Noble
Lie rest on a fundamentally mistaken account of its aims and its method.
"Getting to grips with the precise argument of The Noble Lie is no easy
task," claims Loughlin. Easy or otherwise, it is not a task that he has
managed to perform. He entirely ignores the paragraphs on p.10 in which
we clearly state what we mean by "immanent critique." He also contrives
to ignore the fact that of the dozen or more subsequent specific references
to immanent critique in the book none is compatible with his understanding
of our method. Can Loughlin really have thought, for example, that we
interpreted Dworkin (on p.188) to mean that judges should be understood
as Hegelians or adherents of the Frankfurt School, or even that we
thought that Dworkin himself uses the words "immanent critique?"
Loughlin remarks, correctly, that "theories are not just commodities to be
picked at pleasure off supermarket shelves." His own view, however,
seems to be that they are a species of real property and that theoretical
debate consists of producing a satisfactory abstract of title. Loughlin would
have been perfectly entitled to claim that our method is incoherent, to
attack its theoretical and/or epistemological bases, or to claim that we do
not in fact use the method we have described. What he has done instead is
to assume that something called "immanent critique" is just "there" and
that we have misunderstood it.1
Let us set out once again what we actually said about our version of
immanent critique:
"An immanent critique is one which seeks to identify the major
claims or beliefs of a group or order and to subject them to different
degrees of scrutiny. The first stage is to examine the logical
interrelationships between the various claims to control for consistency
and internal 'fit'. If a broad degree of fit is established then one
problem is removed. If, however, some degree of dissonance appears
then any implications of the contradictions so exposed must be
addressed.

On the "pronounced intellectual habits" which tend to lead lawyers into this sort of
error see J. N. Shklar, Legalism (1964).

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814 THE MODERN LAW REVIEW [Vol. 51

Stage two is to examine the relationship betw

to set the exposed beliefs against the empirical
object of the exercise is to examine the degree of 'mesh' or
disjuncture."
Underlying this method is the assumption that the beliefs now held in
Britain about constitutionality have both an empirical and a normative
aspect. In The Noble Lie we discuss the logic of the normative component,
seeking the abstract propositions that underpin more specific ones. We
then examine how far the empirical aspect of beliefs about constitutionality
matches up to reality. Since, in many important respects, it does not, we
make suggestions-with greater confidence at an abstract level, more
tentatively in terms of concrete proposals-as to how to achieve the
aspiration to openness and accountability, which we take to be the essence
of the normative component of current beliefs about the rule of law. As
we remark at the very end of the book, we do not imagine that if these
suggestions were implemented they would achieve all their intended effects
and, even if they did, they would not usher in the Good Society. We
hope, however, that the effects of a new constitutional settlement would
be dialectical; that is, we hope that more open debate would bring us
nearer to the Good Society. There can be no guarantee that it will do so,
but assuredly nothing else will.
It is clear why this project meets with Loughlin's incomprehension and
disapproval. He claims that the phrase "the rule of law" has been rendered
meaningless as a result of ideological usage. Consequently, in order to
make any sense of it, we must try to ground it historically (p.538). Now
"rule of law" has certainly been debased, abused and hijacked, but
rendered meaningless? So that "rule of law" has no more meaning than
"jhwfeltq?" If that were really so, then Habermas's nightmare would have
come to pass.2 But has it? And if it had, what would be the practical (as
opposed to the purely theoretical) point of trying to "ground it historically?"
Loughlin has yet to produce his own account of "how to envisage a
rational critique of practices in a world in which the authority of practices
is the final cognitive authority." It would therefore be unfair to speculate
as to what he might regard as the practical implication of his belief that
the phrase "rule of law" is now meaningless.
The practical implication of our belief that it is not meaningless, is that
constitutional lawyers can and should seek to identify the constitutional
changes necessary to uphold the rule of law values in response to social,
economic and political developments; not as an optional "political"
commitment, but as an essential aspect of their job. The argument has
three stages. First, for anyone who does not espouse relativism, "the
constitution" cannot be just whatever one wants it to be. Second, in the
absence of any document labelled "Constitution," it is impossible to
identify "the constitution" in a theory free way. Third, for those who
regard the British constitution as having a degree of moral legitimacy, the
theory which identifies the constitution cannot logically be value-free.3

2 Habermas's view is that "[i]t is an open question whether in complex societies motive
formation is actually still tied to norms that require justification, or whether norm
systems have lost their relation to truth"; Legitimation Crisis (1976), p.117 (emphasis in
original).
3 Let us not be misunderstood on this point. We are not claiming that our own views
of what the constitution is are infallible, though, of course, we believe them to be
correct, otherwise they would not be our views. The point is that those who would argue
that the immanent expectations of British constitutionalism are something other than
openness and accountability are not exercising different whippets (Loughlin, p.540) they
are disagreeing with us about part of what the constitution is.

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 Nov. 1988] REVIEWS 815
These do not seem to us to be very d
very controversial. Nor is the argum
not seek to disprove relativism nor t
must be value-laden.4 Now, trying
hypotheticals one way or the other is
It is not, however, the task we set o
task for which we are philosophica
actually make seems to us importan
systematically denied in the practice
Britain. Most constitutional lawyers
constitution as having a degree of mo
not regard the identification of "the
laden theoretical enquiry. Rather,
Collingwood termed "intuitive rea
knowledge but the failure to recognise
theoretical debate involves exposing
light of day.
At this point we must remind ourselves of Loughlin's demand that we
provide guidance on our "vision of the epistemic and ethical foundations
of the good" (p.547). Having called for value-laden theory, where are we
to get it from? Well, once again we had thought our argument on this
point was at least clear, if not unproblematic; "there is a set of immanent
expectations or beliefs, roughly equatable with the concept of the rule of
law which lend colour to the ideas lying behind the notion of the British
constitution" (p.10, emphasis in original). Light can be shed on some of
these immanent expectations by examination of American constitutionalism.
This is because some of the British, disaffected by official lies, however
noble, took the immanent seeds of the rule of law and sowed them in the
New World. Other cultures require different immanent critiques and our
arguments about the rule of law in Britain have no force in, say, France or
Japan.6
A conventionalist or pragmatist account will not satisfy the philosophical
sophisticate for two reasons. First, even if the immanent beliefs are
correctly identified, it may be claimed that we have no warrant of their
ethical rightness. Second, it may be doubted whether it is methodologically
possible to identify conventional beliefs, except on the basis of assumptions
about categorical moral truth. These are fascinating and vital issues on
which much has been and will be written. We, however, did not seek to
explicate and then sit in epistemological judgement on rationalist and
pragmatist accounts of ethics, because we are not equipped, nor was it
necessary for our task in The Noble Lie, to do so. To repeat, what we
have tried to do is to make clear our own presuppositions about the
British constitution and to pursue their implications. That is not the end of

4 It is therefore what Alan Gewirth labels a "dialectically contingent method"; Reason

and Morality (1978), p.43. The more general question of whether the concepts of social
science should be value-free or value-laden appears in jurisprudence as the debate
between natural law and positivism; D. Beyleveld and R. Brownsword, Law as a Moral
Judgement (1986). Beyleveld and Brownsword seek to resolve the issue in favour of
natural law through rationalist arguments which include use of Gewirth's "dialectically
necessary method."
5 R. Collingwood, An Essay on Metaphysics (1940).
6 The version of immanent critique which Loughlin espouses (p.534), deriving from
Hegel, seems to us to confuse epistemological and ontological categories, or at the least
to make ontological claims that are epistemologically unsupportable.

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816 THE MODERN LAW REVIEW [Vol. 51

wisdom, but we think it to be an essential beginning. As f

aware, however, it is a beginning that Loughlin has yet to m
the fundamental presuppositions that he uses to identify "
constitution?"
The status to be accorded to such presuppositions-in particular whether
they can be proven or rationally tested-is a second-order question. For
what it is worth, we lay our bets as follows: a vision of the Good Society
is essential for social science, and such a vision can only be grounded in an
epistemologically satisfactory way through transcendental rationalism.7
Even if this is so, however, there are three reasons why the method that
we have called immanent critique remains essential. First, and again we
are laying bets, any account of the categorical moral basis of the concept
of a constitution seems to us likely to include openness and accountability
as fundamental requirements. This means that to discover the British
constitution we shall need to examine how far our processes of government
meet such requirements-which is exactly what we have tried to do in The
Noble Lie. Second, and again laying bets, any real definition of the
concept of a constitution seems to us likely to leave some room for
contingent collective choice about constitutional arrangements. Once again,
the identification of such choices requires our version of immanent critique.
For the third reason, we return to the question of political practice. If a
vision of the Good Society is an epistemic necessity for social science then
emancipatory political practice must be guided by such a vision-"to
create a Good Society where men can be themselves remains a task not
for tinkers but for tailors." We must also seek to expand our knowledge as
to how, starting from where we are, we might arrive at where we ought to
be; a practical problem which is not simply a matter of instrumental
reason, but which also requires that abstract moral propositions be given
concrete content. This, however, can only be understood as a collective
social task and a dialectical one, to which the contribution of any particular
individual-even one with the synoptic vision of a Loughlin-is likely to
be small. That does not mean that we must remain silent until the Owl of
Minerva spreads her wings. The only type of bird around is likely to be
cooked goose unless we try to make at least some progress by identifying,
through immanent critique, possibilities which in themselves amount to
less than "the transformation of politics"; even though these efforts may
well be derided as mere tinkering by those who would prefer to tinker
with theory instead.
IAN HARDEN*
NORMAN LEWIS*

7 Since Loughlin appreciated this perfectly well (p.547, n.55) we are at a loss as to why
he should have written the review that he did, since it is an elementary methodological
precept that a text cannot be understood unless one seeks to make sense of it rather than
nonsense.

* Centre for Criminological and Socio-Legal Studies, University of

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