Law As Practical Reason

Cambridge Law Journal, 48(3), November 1989, pp.
436-471
Printed in Great Britain
LAW AS PRACTICAL REASON

M. J. DETMOLD*
LAW is practical. Legal reasoning is practical reasoning. We could

make nothing of a judge who having listened to counsel's arguments
and reflected about the law governing his case thought that the state
of knowledge that he had achieved was the natural termination of
his enterprise and submitted his conclusions to the editors of
Halsbury's Laws of England rather than performed the action of
giving judgment. The parties would be outraged, and rightly. And if
the judge continued to do such a thing he would be dismissed. Legal
reasoning is practical in the sense that its natural conclusion is an
action (in the judge's case the action of giving judgment) rather than
a state of knowledge. This is taking "practical" in a strong sense. By
this definition thought is practical whose natural conclusion is an
action (or decision against action): its strongest contrast is with
theoretical thought whose natural conclusion is knowledge. But it
also contrasts with hypothetical thought about action (say, my
thinking it would be good to play cricket again). I do not call this
practical because it does not conclude in an action or decision against
action (others do; for example John Finnis in Fundamentals of Ethics1;
my reasons for differing in this matter will emerge). A judge's
practical reasoning towards the action of giving judgment has priority
for our understanding of law over that vast range of practically idle
things that lawyers do, from the construction of digests like Halsbury
to casual reflection about the rule in Shelley's case (of course there
is one sort of doing involved in both these, but not legal doing). It is
important here to be clear about this priority. It is a priority of
practicality, not a priority of judges or lawyers.
Joseph Raz has pointed out that:
there is something inherently implausible in adopting the lawyers'
perspective as one's fundamental methodological stance. There
is no doubting the importance of the legal profession and of the
judicial system in society. It is entirely appropriate to make them
the object of a separate study and to regard legal theory as that
study. It is, however, unreasonable to study such institutions
exclusively from the lawyers' perspective. Their importance in
* Reader-in-Law, University of Adelaide.
1
Oxford, 1983.
436
https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

C.L.J. Law as Practical Reason 437
society results from their interaction with other social institutions

and their centrality in the wider context of society. The law is of
interest to students of society generally, and legal philosophy,
especially when it inquires into the nature of law, must stand
back from the lawyers' perspective, not in order to disregard it,
but in order to examine lawyers and courts in their location
in the wider perspective of social organisation and political
institutions generally.2
But an analytical priority given to what judges (and attendant lawyers)
do is justifiable not as the priority of judges in the philosophical
analysis of law but as the priority of practicality. Sociology is theory
not practice (except in the Marxist way that what we think about
the world changes the world); that is, sociology is reasoning that
contemplates no particular action (except an occasional rather distant
one such as joining a political party to change a theoretically revealed
evil). It is obvious that sociology itself as theory must accord priority
to practice: if those humans it studies are not doing what it says they
are doing it fails in its own terms. And if it is a difficult and
philosophically contestable thing to say what humans are doing (even
to say what humans think they are doing) then so much the worse
for sociology.3 But Raz is right to see something wrong in a court-
centred legal theory. Law is for citizens before judges (judges are
for citizens, not citizens for judges) and there is something very
wrong in a theory which overlooks this. One of my purposes in this
essay is to show how the practicality of judging (by judges) connects
necessarily to the practical judgment4 of the particular citizens
concerned. With this connexion the practicality of legal reasoning
becomes the whole practicality of law in society. In the first part I
examine the place of reason in law; in the second the essential
particularity of practical reasoning; in the third, I draw both together
to offer a theory of the practicality of law.
I REASON AND LAW
Law is a certain sort of practical reason. Coke's exceedingly controver-

sial words in Dr Bonham's case5 propose a relation between reason
and law:
The common law will control acts of parliament, and sometimes
adjudge them to be utterly void: for when an act of parliament
is against common right and reason, or repugnant, or impossible
2
"The Problem about the Nature of Law" (1983) 31 U. of Western Ontario L.R. 202 at 211-
212.
3
See my The Unity of Law and Morality (London, 1984) pp. 37-38.
' This connexion makes it difficult (I think impossible) to accommodate the conventional spelling
distinction between judgment (of judges) and judgement; so I abandon it.
5
8 Co. Rep. 107a at 117b-118b.

438 The Cambridge Law Journal [1989]
to be performed, the common law will control it, and adjudge

such act to be void.
But between reason and law there is a very complex relation. When
a judge determines the law to be such-and-such he does so by reason;
but the reason is different in different cases. In order to begin to
understand the relation between reason and law it is necessary to
identify and distinguish four types of law-determining process:
1. The decision of particular cases according to law or right. Such
decisions are never just the automatic application of a pre-existing
norm to the particular case. They have an element of creativity in
them which justifies us in regarding them as a type of law-determining
process. We shall call this first type the adjudicatory process.
2. The giving of an advisory statement as to some general
proposition of law or right. This may be for purposes of confirmation,
exhortation, warning, or simple advice. It may be substantive, as
when a penalty is increased, the better to exhort and warn. It may
simply be informative advice. Or it may be to forestall some of
the inconveniences of necessarily retrospective adjudication. The
Supreme Court of Canada has this latter power in relation to
constitutional law; and it has been mooted as a power for the High
Court of Australia, where it has been held to be a non-judicial power.6
It should be noted that the declaratory judgment of administrative law
is not usually a case of this sort of law-determination, since it is
usually the adjudication of a particular case and clearly judicial. We
call this quasi-legislative type of law-determination the advisory
process.
3. The explanation, exposition, particularisation, interpretation
or amplification of some pre-existing law or right. This process spells
out the detail of or enlarges upon the meaning of pre-existing law or
right. It is a more creative process than simple advice which might
just reproduce undisputed law; and is really a sub-legislative function.
It must also be distinguished from adjudicative "interpretation". It is
common to say that modern courts exercise an interpretative function
in respect of Acts of Parliament. But what they do is really adjudi-
cation. Adjudication is the decision of particular cases. This is not
the same thing at all as the sub-legislative interpretation of a term in
a law. Suppose there is a law referring to motor vehicles. This covers
the class of motor vehicles. An interpretation of the term, say, to
include motor cycles preserves the same logical character. What we
can now say is that the law covers, inter alia, the class of motorcycles.
There is as yet no adjudication; just sub-legislative interpretation.
No matter how highly we define the term (say: vehicles with
6
In re the Judiciary and Navigation Acts, (1921) 29 C.L.R. 257.

characteristics a, b, c, . . . n) we still have a class, the class of vehicles

with characteristics, a, b, c . . . n, and not yet a case of adjudication.
Adjudication is the application of the class of the law (however finely
defined) to a particular case; to pursue our example, the decision
that a particular contraption is or is not close enough to the central
case to be called "vehicle with characteristics a, b, c . . . n". We may
suppose that a b c . . . n is the ultimate refinement of definition (of
course no single human life would be long enough to construct this
refinement); there still remains the question of the application of the
defined class to the particular (later in this essay we call this question
the particularity void). It is common to call the process of refining a
definition particularisation; but actually this is a corruption of the
term, for the most highly refined definition is still universal (a, b, c
. . . n are all universal properties and relations): there is a radical
logical difference between the most highly defined set of universals
and a particular case; a radical difference between interpretation and
the crossing of the particularity void (as we shall put it). Adjudication
is the decision of the particular case, and it contrasts radically with
the (sub-legislative) progressive definition of a term in a law. In the
modern common-law legal systems there are no strong examples of
the sub-legislative interpretative process, but it is occasionally to be
found in what the courts do, and perhaps in certain types of delegated
legislation. It is not common for the courts to interpret in this sub-
legislative way, though it perhaps appears to be so. Meaning is use,
not some mental entity established prior to use; so that when a court
applies, say, the statutory term of our example, "motor vehicle", to
a particular contraption the meaning of "motor vehicle" is found only
in its application or use.7 Occasionally a court might make a sub-
legislative interpretation of a term (say that "motor vehicle" means
inter alia "motor cycle"). In which case the term it applies in its
adjudication (the term it uses) would be "motor cycle" or "motor-
vehicle-including-motor-cycle". Such a thing is not as common as it
seems; and is obiter dicta anyway, since all that was necessary for
the decision was the application of the word "motor vehicle" to the
particular contraption. If this last point is thought strange, think what
the case would be like if it concerned the first motor cycle ever
constructed, when no word for the contraption was yet in the
language. There is now no possibility of sub-legislative interpretation,
but the case is no different: it is now as always the case of the
application (by adjudication) of "motor vehicle" to the particular
contraption. Despite the current thoroughly glib use of the word
7
This Wittgensteinian idea I have developed in Courts and Administrators (London, 1989). See
particularly pp. 69-73.

"interpretation" to describe the courts' adjudicative application of

Acts of Parliament, there is no better word for the true sub-legislative
type, and so we shall call this sub-legislative type the interpretative
process.
4. The making of novel law. The first three processes are creative
processes. But they determine the law essentially from some sort of
pre-existing base in law or right. Where there is no such base, or
where the base is irrelevant to the process, we have what we shall
call the legislative process. Something very fundamental occurs when
a legal system admits legislation in this sense. To apply, advise about,
or interpret pre-existing law or right is justified simply in reason: the
fact that pre-existing law or right is not self-executing is sufficient
rationally to require these processes. But legislation is strictly novel
with no necessary rational relationship to prior law at all. The King
coming under law in English constitutional history was a denial of
his legislative power (the assertion of common, that is pre-existing,
law); but the English Revolution was two revolutions, and this very
denial of the King's power brought the establishment in the Parliament
of legislative power in the fullest sense. What is the justification for
so revolutionary a thing? This is the fundamental question of political
philosophy, and we shall offer no answer to it except to say that in a
democracy part of the answer is that legislation is justified as an
expression of the will of the people. Certainly, the contrast between
legislation and our first three types of law-determination is the
fundamental contrast in political philosophy between will and reason.
But even with the strongest example of the legislative process, the
modern Act of Parliament, there is a tendency to its corruption. For
example, some Australian Parliaments have repealed the common
law doctrine that courts searching for the meaning of a statute (i.e.,
how to apply it) should not look to Hansard or parliamentary papers.8
The common law doctrine is of course precisely consistent with the
idea that legislation is a pure act of will. On the new conception
whereby we look at Hansard, what do we say is the legislation,
statute or Hansard? Some may think that the Members' speeches
and attached papers are interpretations of Parliament's legislation.
Perhaps occasionally they are that; but most often the statute is the
expression of the reasons that led to it; that is, it would be truer to
say that the statute is an interpretation of those reasons. So which is
legislation and which interpretation? We only have the legislation of
Parliament (as opposed to the hopelessly vague idea of the informal
legislation of occasional ministers and of the bureaucrats who write
their papers) if the statute is the base point, i.e. absolute in itself
8
For example, the (Victorian) Interpretation of Legislation Act 1984, s.35.

(though subject to subsequent processes including judicial ones).

Now, we should not underrate the extent to which the Westminster
constitutional systems have been corrupted to the position that the
lawmakers are actually the departments of state. But I suppose the
more palatable account of the idea behind the Australian repeals is
to say that Hansard and the papers are to be aids to judicial law
application. This is confused. For the question is, which law is it that
is to be applied? The tendency of the Australian repeals is to degrade
the purely legislative process of Parliament to the third of our law-
determining processes, whereby an Act becomes in part a sub-
legislative interpretation of a prior base, namely ministers' speeches
and attached papers.
Now, the first three of these types of law-determining process are
processes of reason in the sense that reason is intrinsic to them; and
they contrast with the fourth legislative type which is a process of
will having no reason intrinsic to it. This point is best explained by
looking at the fourth type first.
The point is not that the legislative process has no relationship to
reason. We may, of course, presume that legislators make their
legislation for reasons. And secondly, their act of will is to be accepted
or recognised only in so far as it is (legally) reasonable to do so
(constitutional law is this process of legal reason). But this double
relationship to reason is extrinsic to the act of will. When we look at
a modern Act of Parliament we see nothing but a set of absolute
norms (this is the sense in which the Australian repeals of the
Hansard-excluding rule are a corruption of legislation). The thing
itself is a pure act of will: there is no reason intrinsic to it. By contrast
when we look at modern precedent decisions of courts we may see
what can at first glance look like a similar set of absolute norms. But
by the common law theory of precedent the norm of a precedent is
tied rationally to the facts of its case. Thus if a new set of facts arises
which is rationally distinguishable from the precedent facts the norm
of the precedent is not applied, notwithstanding that by its (normative)
terms it is applicable. A simple illustration of this is the following:
suppose that the norm that we find in Donoghue v. Stevenson is
"persons are liable for their negligence to their neighbours". When
the case of a barrister arises the norm is not simply applied, though
as a norm it is applicable (a barrister is a person, his client a
neighbour). Since the case of a barrister is rationally distinguishable
from the case of a manufacturer, Donoghue v. Stevenson is dis-
tinguished. Its norm is taken with reason intrinsic. A statutory norm
on the other hand is tied to no particular set of facts. Thus there
would be no question of distinguishing the case of the barrister if the
above-stated norm had been enacted in a statute. If the norm is in

its terms applicable it must be applied unless there is a question as

to its validity. And though the judgment of validity is a matter of
reason, it is extrinsic to the norm. This distinction between extrinsic
and intrinsic reason is fundamental to any conception of law as
practical reason.
Reason is not so obviously intrinsic to the advisory and interpreta-
tive processes as it is to the adjudicative. One problem is that the
result of an advice or an interpretation may look like simple
legislation. Suppose there is legislation:
A: No motor vehicle shall be taken into a park,
and the following interpretation is given of it:
B: No motor car or motor cycle shall be taken into a park.
Or suppose that norm A is for some reason obscure, controversial,
or not well-known, and that the following is offered as an advisory
opinion:
C. No motor vehicle shall be taken into a park.
The trouble with both B and C is that they take the same form as A
(and C looks identical). They might have been enacted in the first
place by Parliament as A was. Instead of enacting A, Parliament
might simply have enacted B. But these looks are deceptive. This
enacted B is logically a quite different thing from B as an act of
interpretation. The difference is simply that the latter is only explic-
able as an act of interpretation by virtue of a rational (interpretative)
relationship to A. And its derivative and rationally dependent
constitutional status would follow. If A were later discovered to be
not what was thought, the necessity in reason to amend B immediately
follows: this is the sense in which reason is intrinsic to B, the process
of interpretation. And it will be obvious that a similar analysis applies
to the advisory process. If an advice is given (C) as to A and A is
subsequently found to be different from what was thought the reason
intrinsic in C requires its amendment.
To revert now to Coke's theory, which as a theory of the relation
between reason and law is a theory of intrinsic reason. But first a
word of explanation about our four categories of law-determination.
Perhaps there is a temptation to say that only adjudication and
legislation are of fundamental importance in the modern common-
law legal systems (the courts, we have seen, generally do not advise
or sub-legislatively interpret). But to say such a thing would be a
strong example of a distorting court-centred jurisprudence; excluding
from primary concern the extraordinarily important case of a solici-
tor's advice to his client. Anyway, all four law-determining processes

are necessary to provide a complete conceptual basis for the analysis

of Coke's theory. Now, Coke's theory. There is proposed by him a
relation between reason and law (law being something that has been
determined by one or more of the law-determining processes). It is
obvious that the relation of reason to something intrinsically reasonful
(we cannot say "reasonable", because that implies a favourable
recommendation) is different from its relation to something which is
not. The law-determining process with which Coke's reflections are
concerned is that of Parliament. So, the first question must concern
the nature of Parliament's law-determining in Coke's time. If it is
intrinsically reasonful there will be much care needed in translating
Cokes' theories about the relation between reason and law to the
modern Act of Parliament. For that, we have seen, is not an
intrinsically reasonful thing.
In The High Court of Parliament and its Supremacy,9 C. H.
Mcllwain proposed the following theses:
(a) England after the Norman Conquest was a feudal state, i.e.,
its political character is better expressed by the word feudal than
by the word national, (b) As a consequence, her central assembly
was a feudal assembly, with the general characteristics of feudal
assemblies, (c) One of those characteristics was the absence of
law-making. The law was declared rather than made, (d) The
law which existed and was thus declared was a body of custom
which in time grew to be looked upon as a law fundamental.
Rules inconsistent with this fundamental law were void. Such a
law was recognised in England down to modern times, (e)
Another characteristic of the times was the absence of a division
of labour between different "departments" of government and
the lack of any clear corresponding distinctions in governmental
activity, as "legislative", "judicial", or "administrative", (f)
Parliament, the highest "court" of the Realm, in common with
the lower courts, participated in these general functions of
government. It both "legislated" and "adjudicated", but until
modern times no clear distinction was perceived between these
two kinds of activity, and the former being for long relatively
the less important, we may say roughly that Parliament was more
a court than a legislature, while the ordinary courts had functions
now properly called legislative as well as judicial, (g) "Acts" of
Parliament were thus analogous to judgements in the inferior
court, and such acts were naturally not treated by the judges in
these courts as inviolable rules made by an external omnipotent
legislative assembly, but rather as judgements of another court,
which might be, and were at times, treated as no modern statute
would ever be treated by the courts to-day.
Declared law is law determined in one or more of our first three

types of process (Mcllwain's book is full of examples of all three).
' Yale, 1910, pp. vii-viii.

The idea of declaration implies logically some pre-existing source,

which is the distinguishing-mark of our first three types: Mcllwain's
contrast between declared law and made law (our fourth type) is
clear enough (though we must be careful with it: our first three types
of law-determination make law, too—they make it with a relation of
reason to some pre-existing source). Its function of declaring law
rather than making it in a completely novel way makes the medieval
parliament, Mcllwain argued, more like a court than a modern
legislature. In particular, we can say, all its determinations are to be
taken as intrinsically reasonful.
The argument is clearly established. Indeed it was anticipated by
a number of scholars including Jenks, as J. W. Gough shows.10 There
is scholarly contest at the edges of the argument. For instance,
Mcllwain maintained that it was at the time of the civil war that
Parliament first clearly undertook a law-making role; but Jenks
disagreed, holding that the critical first steps towards that role were
taken by the Reformation Parliament in the time of Henry VIII, a
view which Mcllwain later accepted.11 And there is contest as to
when it can be said that Parliament's modern exclusively legislative
(fourth type) role was established. On this matter Maitland argued
that it was not until the 19th century that Parliament gave up
governing particularly (adjudication) in favour of the (legislative)
laying down of general rules.12 And Gough replied that Maitland had
forgotten that the 19th century Parliament was very much concerned
with saying what (particular) railways should be built.13 But the
evidence for Mcllwain's central thesis is beyond doubt. Our question
is what is the implication of this for Coke's conception of the relation
between reason and law?
A crude interpretation of Coke's theory is to see it as a forerunner
of the modern American doctrine of judicial review. Gough, quite
rightly, refutes this interpretation;14 and also refutes the implication
of the same in Mcllwain's The High Court of Parliament (an
implication not easily attributable to Mcllwain himself). "Ameri-
cans", Gough writes:
approach the English seventeenth century with a different bias.
They are familiar with the principle of a limited legislature, and
disposed to regard the idea of fundamental law, embodied in the
American Constitution, as one of the most precious safeguards of
political history. Hence, so far from belittling or seeking to
explain away the references to fundamental law with which they
10
Fundamental Law in English Constitutional History (Oxford, 1955) p. 5.
11
Constitutionalism Ancient and Modern, 2nd edn (Cornell, 1947) p. 170-178.
12
Constitutional History of England (Cambridge, 1908) p. 382ff.
13
Op. at., note 10 at p. 24.
14
Ibid., chapters 1-3.

meet in studying the seventeenth century, they are apt to greet

them with enthusiasm, sometimes 15misplaced, as forerunners of
their own constitutional principles.
The reason that Coke is no forerunner of Marshall is simply that
there is a radical difference between the questions that each had to
face. When Coke thought of an Act of Parliament he thought of it
as something to which reason was intrinsic, that is as an example of
one or all of our first three processes, but not the fourth (we should
say thought of it primarily as that: for it had begun the process of
transformation into a legislature of our pure fourth type). That was
its logical status, and to the extent that it failed to be reasonable
relative to its prior base it failed to be what it purported to be (void
or null for what it purported to be; just as a judicial precedent in
modern times is liable to be overruled or not followed (void or null)
by virtue of its lack of reason). For Marshall on the other hand an
Act of Congress was purely legislative, and when it failed (as when
it was unconstitutional) it failed in extrinsic constitutional reason: it
did not fail in what it purported to be, namely, a pure act of will.
The difference between the two things is substantive as well as logical,
and may be represented by the following pair of norms:
A. Accept what is reasonable.
B. Accept what it is reasonable to accept.
Since it is obvious that it is often reasonable to accept something
unreasonable (reasonable to say that an unreasonable statute is
nevertheless constitutional) it is obvious that there is a quite funda-
mental difference between Coke's doctrine (A) and judicial review
(B); between intrinsic and extrinsic reason.
Gough does not appear clearly to understand this difference. He
writes:
How, then, does Professor Mcllwain's theory stand in the light
of what we have seen? I think we must, in the first place, dismiss
the notion that law was only declared and not made. This may
have been true of the early Middle Ages, but in the later Middle
Ages, or in Tudor times, it was certainly no longer so. It remains
true that parliament often, perhaps generally, continued to be
thought of as primarily a court, and this may have impeded the
recognition or the fact that it was at the same time becoming
more and more of a legislature,16
and he is here thinking in terms of our fourth (legislative) type of
law-determination, where the question of reason is extrinsic. But the
distinction between declaring and making is too stark: our first three
" Ibid., p 3.
16
Ibid., p . 27.

types of law-determination are cases of making as well as declaring

(making reasonably if intrinsic reason holds a place, as it does in
Coke's doctrine). Gough's failure to see his way right through the
problem emerges in what he says about one of his principal examples
of early law making, the Statute of Uses (1536). Of the analysis of
that statute which Montague CJ offered in Wimbish v. Taillebois11
Gough writes:
Yet strained and unnatural though Montague's interpretation
seems to us, there was obviously no question of the court trying
to set aside the Statute of Uses, or18 pronounce it void for
contradicting common 'law' or reason.
The implication here is that there is a fundamental opposition between
what Montague did and Coke's idea of voidness. But they are
complementary parts of the same doctrine of intrinsic reason. Monta-
gue's interpretation of the statute is actually a strong example of the
approach to something intrinsically reasonful. It would have been
flatly contrary to the reason of the middle ages for an act of parliament
to expropriate property (property was sacrosanct in reason). So the
statute could not have been seen as that. Montague sees it in this
way:
When the statute of 27 H.8 was made, it gave the land to them
that had the use. And, sir, the Parliament (which is nothing but
a court) may not be adjudged the donor. For what the Parliament
did was only a conveyance of the land from one to another, and
a conveyance by Parliament does not make the Parliament
donor; but it seems to me that the feoffees to uses shall be the
donors, for when a gift is made by Parliament, every person in
the realm is privy to it, and assents to it, but yet the thing shall
pass from him that has the most right and authority to give it.
. . . So here it shall be said the gift of the feoffees by Parliament,
and the assent and confirmation of all others. For if it should be
adjudged the gift of any other, then the Parliament would do a
wrong to the feoffees in taking a thing away from them, and
making another the donor of it. . . . And here the land is by act
of Parliament removed from the owners, that is to say the
feoffees, to the cestuy que use, and the statute would do wrong
if it should not adjudge them the donors, for they have the
greatest authority to give it, and the Parliament is only a
conveyance, and therefore 19it shall be adjudged the gift of the
feoffees by Parliament. . . ,
Prior law for Montague and for all English judges up to his time was
not just the common law but it included natural reason (right) and
17
I Plowden, 38.
18
Op. tit., note 10 at p. 27.
" Op. tit., note 17 at p. 59.

the law of God. In Partridge v. Strange & Croker,™ we find him

saying the following (of another statute, 32 H8 C9):
This statute was made in affirmance of the common law, and
not in alteration of it, and all that the statute hath done is, it
has added a greater penalty to that which was contrary to the
common law before. . . . For to construe the statute that he,
who is in possession, shall not make a lease . . . except he had
been in possession . . . for a year before, would be a hard law,
and contrary to all reason and equity: and such an exposition of
the statute was never intended by the makers of it. . . . And
that which law and reason allows shall be taken to be in force
against the words of statutes.
Natural reason and the law of God ordained the sanctity of property.
Thus it was necessary to see the Statute of Uses (and 32 H8 C9) as a
reasonable working out of that prior state. And this is what Montague
did when he said that the Statute of Uses was a conveyance. Now
this (the conveyance process) is not quite like any one of our first
three law-determining processes (perhaps we should see it as a fourth
type), but it clearly shares with them the same logical character: it is
an expression or working out of some prior right or law, and that
character is intrinsic to it. Had Montague not been able to see it as
that, then it would have failed to achieve the status it sought and
Coke's idea of voidness would have come into play.
One of Coke's own examples is instructive here: he cited various
precedents in Dr Bonham's case, one of which was Thomas Tregor's
case from the eighth year of Edward III:
And therefore in 8E. 3.30 a.b. Thomas Tregor's case on the
Statute of W.2.C.38 & artic. super chartas, c.9. Herle saith, some
statutes are made against law and right, which those21who made
them perceiving, would not put them into execution.
It is a strange thing in our constitutional history that there should be
so many trivial interpretations (both conceptual and political) of such
as Coke, a jurist both profound and courageous. One of them is
Pollock's interpretation of the passage on Tregor's case:
plenty of modern statutes have been inoperative in practice, not
because the common22 law controlled them, but because they were
in fact unworkable.
Now, it is true that Coke interpolated in his quotation from Herle
the words "against law and right"; but it is also clear, as Mcllwain
shows,23 that he did not regard this as changing their sense. So what
is the sense of the words? Mcllwain gets close:
20
I Plowden, 77 at p. 88.
21
Supra note 5 at p. 118a.
22
First Book of Jurisprudence, 5th ed (London 1923) p. 266n.
23

One very striking thing about the whole case is the fact that
Coke is apparently citing these words of Herle—"There are
some Statutes made which he himself who made them does not
will to put into effect"—as proof of the power of the judges to
disregard the statute concerning the college of physicians which
was under discussion in Bonham's Case. What possible relation
can there be between the opinions of the judges and the opinions
and desires that the makers of the law begin to entertain
subsequent to the passage of the Act? . . . When Herle says that
the makers of the statutes often will not to enforce them, is it
certain, as is usually assumed, that he means the "legislature"
exclusively? Is it not possible that Coke was as nearly right when
he cited the statement to prove the right of the courts to review
"legislation"? But would it not be still nearer to the truth to say,
in view of the close relations of judges and Parliament, of the
fusion of functions judicial and legislative which we have found
in both the High Court of Parliament and the inferior courts,
and above all in view of the manifest absence of any clear
distinction between a judgement and a law, between judicature
and legislation, in the time of Edward III,—in view of all this,
would it not be better to say that Herle would probably have
considered an alteration of a statute by a subsequent statute,
and a modification of it, or even a refusal to enforce it, by the
courts; as actions not essentially different in character?24
The judicial process is a process of intrinsic reason. And so, at the

time, in the way we have been arguing, was the process of Parliament.
Hence the identity between court and Parliament that Mcllwain finds.
Coke's words ("those who made them perceiving, would not put into
execution") actually express the point more perspicuously than
Mcllwain's. A person does not will the conclusion of a process of
reason about prior right except in so far as it is reasonable. When its
lack of reason appears the will supporting the conclusion slips away
and the prior right reasserts itself. And it is thus with the old
parliaments. Their statutes obtain to the extent of their intrinsically
reasonful relation to prior law and right. Perhaps we who are familiar
with the wholesale legislative overturning of old ideas, find it hard to
understand this. But this is because we are familiar with Parliament
the legislator. The nearest that we have to the old idea in the law
these days is when a judge talks of an earlier judge as "going too
far" or "speaking incautiously" or "per incuriam". The point is not
to say that the judge has willed something which later reason holds
void; it is that the perceived unreasonableness limits what is willed.
The most common trivial interpretation of Coke's words in Dr
Bonham's case is that he was merely expressing ordinary principles
24
Ibid., pp. 289-291.

of statutory interpretation. So held C. K. Allen25 and Gough26; and

Holdsworth wrote of the cases relied on by Coke that they were:
decisions that the courts will . . . interpret statutes stricti juris
. . . that is, so as to give them a meaning in accordance with
established principle . . . These are principles of interpretation
which would be accepted at the present day.27
But it is literally possible for a proposition with meaning to be null
as an expression of reason (as an expression of something to which
reason is intrinsic). For example, the law "all judges shall give
judgment standing on their heads" is meaningful but null in point of
intrinsic reason. Whereas in the modern matter of the interpretation
of purely legislative acts (adjudicative interpretation: as we have
seen, the word "interpretation" is used loosely in that context), if a
statutory proposition is meaningful there is a quite early point beyond
which interpretation cannot go and remain interpretation. How far
could the judges strike by interpretation at the just-stated law? And
for another example, if Dicey's famous statute requiring the execution
of blue-eyed babies were held to apply only to babies whose whole
eyes were blue (that is, to none), though it might be pretended that
that was interpretation, it would not be. In truth, it would be a simple
case of extrinsic reason (judicial review) refusing to recognise the
statute; that is, holding it to be invalid; and concealing the fact. And
that also is quite different from the nullity of an intrinsically reasonful
act. The difference we shall express again.
A. Refuse to accept what is unreasonable (Coke).

B. Refuse to accept what it is unreasonable to accept (judicial
review).
It is well-known that Coke also said of the power and jurisdiction
of Parliament that it was:
so transcendent and absolute 28
as it cannot be confined for cause
or persons within any bounds.
There are trivial political explanations for what is conceived to be an
inconsistency between this passage and the other doctrines of Coke
that we have been discussing in this section (for example,
Holdsworth29). But there is no such inconsistency. There is no
inconsistency between the absolute finality of a court's settlement of
the particular case it adjudicates and the non-final, non-absolute
25
Law in the Making, 4th edn (Oxford 1946) p. 369.
26
27
Holdsworth, History of English Law, ii, p. 443.
28
4Inst, cap 1,36.
29
History of English Law, iv, pp. 186-187.

intrinsic reasonfulness of the general pronouncements it makes in the

course of that settlement. Nor is there any suggestion that the
absoluteness of a particular adjudicative settlement has any connexion
to the absoluteness of a modern Act of Parliament (true legislation).
Mcllwain30 and Gough31 are subtler. The jurisdiction of Parliament
was absolute for Coke (they held) in the indisputable fact that it was
the highest and final court: it could not be "confined" by any further
proceeding. Such a doctrine only applies to Parliament's adjudication,
its settlement of single cases. Obviously when the Parliamentary
process in question is interpretative or advisory (our second and third
types) there is possible any number of further proceedings; but when
a single case is settled by the adjudication of the highest court there
is nothing further in the legal system. Gough gives an apt example.
Coke writes of the attainder of Thomas Cromwell:
And albeit I find an attainder by parliament of a subject of high
treason being committed to the tower, and forth-coming to be
heard, and yet never called to answer in any of the Houses of
Parliament, although I question not the power of the Parliament,
for without question the attainder standeth of force in law: yet
this I say of the manner of the proceeding, Auferat oblivio, si
potest; si non, utcunque silentium tegat: for the more high and
absolute the jurisdiction of the Court is, the more just and
honourable it ought to be in 32the proceeding, and to give example
of justice to inferior Courts.
Now, this takes us to the fundamental point of constitutional law.
The jurisdiction of the highest court is necessarily self-validating. If
an administrator claims jurisdiction over me I can argue in a court
that he does not have it: his decision is not self-validating. However,
if the highest court makes a decision over me there is no place for
me to argue that that decision is beyond jurisdiction. That is the
meaning of the common law proposition that the superior courts
have a self-validating jurisdictional power.33 And it is this ultimate
jurisdictional power in the old parliaments that Coke is talking about
in this matter of absolute and transcendent jurisdiction. The attainder
of Thomas Cromwell settled his case finally. But general utterances
in the course of that settlement, perhaps interpretations of prior law
and right, would be, like the general utterances of the modern
superior courts, and the other general (universal) things that the old
parliaments laid down, intrinsically reasonful in their relation to pre-
existing law and right, not final and absolute. This is the sense in
30
31
Op. tit., note 10 at pp. 42-^*3.
32
4 Inst, cap 1, 37.
33
Scott v. Bennet (1871) L.R. 5 H.L. 234. This remarkable case and its doctrine of the ultimacy
of adjudication is discussed extensively in op. tit., note 7.

which the true successors of the old parliaments are the superior
courts. But we have to be careful in this comparison: the superior
courts are not, as the old parliaments were, in the process of becoming
legislatures in the true sense (or are they? but with what democratic
justification?).
Parliament was a court. Parliament is now a legislature. The
(Diceyan) doctrine of the omnipotence of Parliament is based upon
a fundamental failure to understand history. It is a simple non sequitur
to reason from the ultimacy of an intrinsically reasonful process (with
all the qualifications that that particular nature implies) to the ultimacy
of a purely legislative process. That latter ultimacy denies reason
altogether: reason is neither intrinsic nor allowed to hold extrinsically.
When history transformed Parliament from an intrinsically reasonful
court to a legislature that point was overlooked; that is to say, the
(rational) necessity to replace the lost intrinsic reason with extrinsic
reason was overlooked. These points could hardly be clearer than
they are in Willes J's well-known words in Lee v. Bude & Torrington
Railway:3*
Acts of Parliament . . . are the law of this land; and we do not
sit here as a court of appeal from Parliament.
Of course not! We must distinguish again:
A. Accept (from Parliament) what is reasonable.
B. Accept (from Parliament) what it is reasonable to accept.
Only if the courts acted on the intrinsically reasonful A would they
presume to be a court of appeal from Parliament. Appeal is concerned
with rightness or reasonableness (in administrative law it is contrasted
with review on this very point). Only A raises the rightness or
reasonableness of Parliament's Acts. The extrinsically reasonful B
is a different matter entirely: it is obviously often reasonable to accept
unreasonable legislation. The fact that Willes J. found it necessary
to deny A but not necessary to deny B shows that the idea of extrinsic
reason (what it is reasonable to accept) entirely eluded him. The
(Diceyan) doctrine that whatever Parliament enacts is the law is
nothing; neither history (for it has not caught up with the history
that transformed Parliament from a case of intrinsic reason to
extrinsic) nor reason (for intrinsic reason has been lost and no
extrinsic reason has replaced it).
Many philosophers of law overlook the difference between A
and B. One of them is Joseph Raz. In "The Problem About the
Nature of Law", Raz argues that the "inclination to identify the
34
(1871) L.R. 6 C.P. 576 at p. 582.

theory of law with a theory of adjudication and legal considerations

with all those appropriate for courts is based on a short-sighted
doctrine overlooking the connection of law with the distinction
between executive and deliberative considerations."35 He accepts that
courts make their decisions on the basis of both moral and legal
considerations. But that very fact, he says, shows that it is wrong to
take a theory of adjudication to be a theory of law; a theory of law
must at least distinguish between these legal and moral considerations.
The distinction for Raz turns upon the concept of an "authoritative
positivist consideration". The need for this concept in a theory of
law:
is clearly seen by contemplating its negation. There are forms of
arbitration in which the arbitrator is instructed merely to -------
the merits of the case and to issue a just judgment, without being
bound to follow any authoritative positivist standard. We can
imagine a purely moral adjudication taking the same form.
Positivist considerations are those the existence and content of
which can be ascertained without resort to moral argument.
Statutes and precedents are positivist considerations whereas the
moral principles of justice are not. A moral adjudicator will rely
in his deliberation on the existence of positivist standards but he
is not bound to regard them as authoritative. But one does not
have a court of law unless it is bound to take as authoritative some
positivist standards such as custom, legislation or precedent.36
It is true that if there were no considerations that judges were
bound to take as authoritative without moral test they would not be
judges in law but simply moral adjudicators. And Raz is surely also
right to hold that the point of having, say, a legislature in the first
place is to settle something. If legislation did not in some way settle
the question it addressed, the community would in truth have no
legislation, for it would in its institutions still be deliberating the
legislative question (the community would be just like a person who
could never make up his mind: Raz draws heavily upon analogy
with personal decision). The point is presented by Raz as one of
"paramount importance to social organisation,"37 and it is, but it is
perhaps even stronger than that. It may be logical. Just as in the case
of a man who never made up his mind we would be logicaUy precluded
from saying he had made a decision, so for a community which
redeliberated legislative questions we would be logically precluded
from saying any legislation (any law) existed (and does not this logical
point prove the case for legal positivism?).
But Raz mistakes the question that legislation settles. Suppose a
35
Supra note 2 at p. 217.
36
Ibid., at pp. 213-214.
37
Ibid., at p . 216.

statute is passed: Where A, B and C, persons shall do X. By moral

deliberation this statute settles the question implicit in what it says,
should all persons do X where A, B and C? Raz says:
Since law belongs to the executive [i.e. non-deliberative] stage
it can be identified without resort to moral38arguments, which by
definition belong to the deliberative stage.
This does not follow at all. The legislature has decided that all persons
shall do X. And this must be accepted without resort to further moral
argument. But the only court that would fail here would be a court
that acted on:
A: Apply only what is reasonable.
The true principle of judicial action in relation to true legislation (our
fourth type of law-determination) is, we have seen,
B: Apply only what it is reasonable to apply.
And this second principle preserves the sense of legislation in a
community. There is, consistent with it, a legislative question which
has been settled, namely, what is reasonable. There is no question
of redeliberating that question. But what it is reasonable to apply
has not been decided by the legislature and cannot be decided. This
is so even if our legislation is taken to contain a second norm:
All persons shall do X and all courts shall apply this first norm.
We may accept that the legislature has now deliberated upon and
decided: first, that the first norm is reasonable, and, second, that it
is reasonable to apply the first norm. But not a third thing, that it is
reasonable to apply the second norm. The question that remains is
whether it is reasonable to apply the second norm. And so on. Nor
is the issue avoided if the second or any subsequent norm is self-
referring. There would remain the question whether the now self-
referring whole entity is to be accepted. This is just as the question
whether the Cretan is a liar remains unresolved—no matter how
much we believe him—by the Cretan's statement "I am a liar." No
matter how much we believe him: no matter how much respect we
give to Parliament. The point is a logical one: no respect can be given
to a decision that has not been made.
The distinction between what it is reasonable to legislate and what
legislation it is reasonable to apply obtains even in a legal system in
which the courts judge it reasonable (right, required, the law) to
apply any legislation at all (as Dicey believed was the case with the
legal system of the United Kingdom). The question of application is,
38
Ibid, at p. 217.

even in such legal systems, a distinct, logically required, question

which the courts and not the legislature answer (affirmatively, so it
is said, every time).
If we think again of Raz's comparison with personal decision the
importance of the difference between A and B will become apparent.
I make a decision to go to Nottingham, Raz supposes (this is one of
his examples of personal decision). For that decision to subsist it
must be the case that I do not reconsider it (though I may actively
consider subsidiary questions such as where to stay and so on). This
analogy is very misleading for there is out of account in the sphere
of personal decision just what it is that makes it important in law to
distinguish A and B, legislation and adjudication. I decide to go to
Nottingham and I can immediately set about executing that decision
because there is no question but that it is my decision. What if it
were your decision to go to Nottingham. Of course / wouldn't go!
Nor even if it were your decision that it is reasonable that everyone
go to Nottingham. And even if it were your decision that / go to
Nottingham I wouldn't go unless there were some mediation connec-
ting your decision to me: I am not your slave. There are various
things in the personal sphere (a contract, for example) which might
provide that mediation. In law the mediation is adjudicated upon
and completed by the courts. Our contract under which you claim I
must go to Nottingham if you direct me would be adjudicated upon
by a court, and if against me I must go to Nottingham. The whole
law of contract bears witness to the distinction between A and B:
the court decides upon the application of contracts (B: Apply what
contracts it is reasonable to apply); not whether what they stipulate
is reasonable (A: Apply what contracts are reasonable) (though there
are obviously some minor qualifications to this). The application of
statutes is similar. The statute of our example has (reasonably)
decided: where A B C , persons shall do X. This might just be your
decision (yours and certain other citizens), just like your decision to
send me to Nottingham. It might be a reasonable statute, and even
if not it can be accepted as having decided what is reasonable (total
respect for what it does decide). But for me to do X requires some
particular connexion of me to the statute (some mediation as in the
contract case). Thus B rather than A. Reasonable application to me
rather than reasonableness. A and B can be distinguished on the
ground that they are simply different questions governed by different
reasons.39 But the fundamental distinction now seems to be that a
particular connexion to me is necessary before any norm can justly
39
Op. cit. note 3 at pp. 251-259.

be applied to me. The reasonableness of the norm (A) is no warrant

for B. The distinction between A and B is fundamental to freedom.
It is also fundamental in the practicality of law. Where law is seen
as essentially theoretical, i. e. as something to be known, the distinction
between A and B gets no hold. Something known is the law regardless
of whether it might be assessed in point of reasonableness or in point
of whether it should be applied to a particular person. When law is
seen as practical there is raised a question of practical reason. A
particular action is contemplated and the question is one of reason
about that action (B . . . reasonable to apply). By contrast, A, though
it mentions the action ("apply what is reasonable"), raises no question
of practical reason about it. It is this action and the accurate focusing
of reason upon it that raises the distinction between A and B. A
theoretical view of law (some versions of legal positivism) has seemed
attractive in the interests of freedom; for one's freedom appears to
be the greater when the law is something to be known prior to action
(thus, it is thought, we can calculate clearly and act the more freely).
This always has been the most plausible argument for any legal
positivism. But the great destructions of freedom (all the fascisms) are
built upon a denial of the distinction between A and B: humans are
conscripted or obliterated in the service of what is reasonable (what
glory or destiny the tyrant or state holds reasonable); whereas it is
states that are conscripted in the case of what it is reasonable to apply
to citizens (for then they are accountable to their citizens' rights).40
II THE PARTICULARITY OF ADJUDICATION

My deciding to go to Nottingham is one thing. Your deciding it in
respect of me is another. And yet another is whether it is reasonable
for anyone (or all) to go there. This last is not practical until the
determination of the will of at least one person is effected or at least
contemplated. It is universal and not practical; whereas the first two
are particular and practical (the first connecting to my action in going
to Nottingham; the second to yours in, say, forcing me to go). What
is the connexion between these things? How does a universal decision
become practical?
Suppose I am seeking to acquire judicial office by exam. I am
given a problem to solve consisting of facts A B and C. I work it out
and conclude, the defendant must pay damages. My conclusion is
universal: a defendant in circumstances A B and C must pay damages.
" Op. tit., note 7, where the argument is that the proper function of the courts in administrative
law is to preserve citizens' rights against the state, because individuals' rights (which determine
particular applications of law) are absolute against the state.

But am I right? I check my reasoning and conclude I am right. I

finish the exam, content. But being rather introspective, I go to my
books after the exam to make sure. Yes, the defendant must pay
damages. I am sure. I am now sure that I have an answer to the
(universal) question: where A B C must the defendant pay damages?
But it is not a practical answer. My will is not determined to any
action, for there is no particular A B or C, nor any (particular)
defendant to act against. Some would say that my conclusion was
theoretical. This is not strictly true because it is a practical sort of
question that I have considered (it is not a question of mere
knowledge): it is better to say my conclusion is hypothetical. My
answer will become practical when it becomes particular. But is this
just a matter of waiting until a particular comes along which fits my
universal judgment?
I was right. I pass the exam, am appointed, and my first case
turns out to be exactly the case of my exam: A B and C are proved
and the plaintiff seeks damages. Let us in this (philosophical) analysis
hurry over all the pleading, proof and argument to the point where I
sit alone in my chambers and commence to contemplate judgment.
Where A B C the defendant must pay damages. I know this is right.
I have done that reasoning. What more is there? Is not my will coiled
appropriately, ready to be unleashed? Yes. But what is required to
unleash it? Why does it not just unleash itself? The six weeks or so
between my exam and the case are nothing (in another case, D E F,
suppose I work out my judgment and it is six weeks before I give it;
bewigged and berobed, I sit myself in the place of judgment and
notwithstanding the six weeks delay my will does just unleash itself).
But not here. What is it that gives me pause in the A B C case? It is
not that I doubt my conclusion. I remember my reasoning very
clearly. It is not that I wish to go off to Halsbury to see if there is
something I've overlooked (though I might do that, stalling for time).
I know I've overlooked nothing. It is just that I now have a radically
different problem. A particular, practical problem, which universal
hypothetical (theoretical) reasoning does not solve. And the whole
problem is that no reasoning can solve it. It is particular, about which
nothing can be said (anything I say will be universal). I am strictly at
a loss, and if I keep on thinking I will give no judgment at all. This
moment of indecision (a whole realm) is a recurring theme in
literature. Think of Hamlet, whose inaction was tragic (true to an
unconsoling, unanswering world) not a simple flaw in character.
Think of the confrontation between Pierre and Davout in War and
Peace. The moment of indecision is what saved Pierre from being
shot as a Russian spy on Davout's orders (Russian spy=A B C; so
the relevant rule of action, for Davout is, execute where A B C ) :

Davout looked up and gazed intently at him. For some seconds

they looked at one another, and that look saved Pierre. Apart
from conditions of war and law [A B C] that look established
human relations between the two men. At that moment an
immense number of things passed dimly through both their
minds, and they realized they were both children of humanity
and were brothers.
War and Peace Book XII, Ch X
I, the judge, and Davout, at the moment of practicality entered the
unanswering void of particularity, the realm of love, about which
only mystical, poetic things can be said (children of humanity, and
such like); or nothing (Hamlet: "the rest is silence"). Judges enter
this realm every day (if they only knew).
Before proceeding I wish to recall the question of Finnis's wider
definition of practicality in Fundamentals of Ethics. Finnis includes
hypothetical practical thought (terminating in practical knowledge)
in his conception of practical as well as thought terminating in action
(or a decision against action). With this definition he excludes the
particularity void. Thus he says:
[A certain] argument would work in just the same way if the
question were not hypothetical but required of you a choice here
and now . . .; thus its being hypothetical does not remove its
radically practical character.
Of course the matter is not just a definitional one: Finnis has deep
reasons for this, which we shall later discuss. In part I we identified
two problems of particularity: the adjudication of particular cases
(the crossing of the particularity void, as we now call it) and the
greater refinement in definition of a certain class. Hart said:
Different legal systems, or the same system at different times,
may either ignore or acknowledge more or less explicitly such a
need for the further exercise of choice in the application of
general rules to particular cases. The vice known to legal theory
as formalism or conceptualism consists in an attitude to verbally
formulated rules which both seeks to disguise and to minimize
the need for such choice, once the general rule has been laid
down. One way of doing this is to freeze the meaning of the rule
so that its general terms must have the same meaning in every
case where its application is in question. To secure this we may
fasten on certain features present in the plain case and insist that
these are both necessary and sufficient to bring anything which
has them within the scope of the rule, whatever other features it
may have or lack, and whatever may be the social consequences
of applying the rule in this way. To do this is to secure a measure
of certainty or predictability at the cost of blindly prejudging
what is to be done in a range of future cases, about whose
41
Op. tit., note 1 at p. 17. My emphasis.

composition we are ignorant. We shall thus indeed succeed in

settling in advance, but also in the dark, issues which can only
reasonably be settled when they arise and are identified.42
And so we have, according to Hart's argument, institutions to settle
these issues by greater refinement of definition. This is like Raz's
idea of adjudication, being (when it is not mere execution) sub-
legislation: the progressive refinement of the categories of law
according to experience. But this is not true particularisation. Sub-
legislative interpretation is really (as we saw in part I) just specifica-
tion. It doesn't matter for the problem of the particularity void how
highly-defined A B and C are. We might have set out a very large
number of very detailed facts and our problem would be exactly the
same (though somewhat disguised). How to act in respect of a
particular? How to cross the void? This is one important thing that
we learn from example. Sometimes example is thought of as greater,
though somewhat indeterminate, specification. Many things cannot
be stated definitively; for example, how to dance the eightsome reel.
But they can be taught by example. And it is often thought that the
example is just greater, unarticulated, specification. It is this, but not
just this. The first thing that its particularity teaches, and what it
constantly teaches, is the overcoming of the particularity void.
The particularity void is simply respect for the particular. Respect
for the particular is not respect for any (universal) quality or relation
attaching to the particular, not respect for A B or C or any further
refinement of them. It is respect for the particular itself. Respect for
any particular is respect for the mystery of the existence of the world:
the world might be simpler, i.e. any particular might be the whole
world, and the mystery of existence would be the same.43 But there
is a certain bleakness in this conclusion. A judgment in respect of A
B and C cannot be a practical judgment because it cannot cross
the void. Of course it can justify a judgment in the matter: a
theoretical/hypothetical, whatever you call it, judgment right up to
the void. But the final rationality of practical judgment seems in
doubt here. Neil MacCormick has attempted to reassert that rational-
ity against certain theories of particularity44 by reconsidering the idea
of justification. He sees that the act of justification is incapable of
solving the problem for it immediately raises the question, why
justify?; and the answer, like that to the original question, will be
ultimately particular, not universal; so it will have its own particularity
42
Concept of Law (Oxford, 1961) at p. 126.
43
44
In "Universalisation and Induction in Law", in Proceedings of Conference on Reason in Law
(Bologna, 1984), where h e considers three theories of particularity: A d a m Smith, Theory of
Moral Sentiments (1759), R . S. Summers, "Two Types of Substantive Reasons" 63 Cornell LR
707 (1978), and my The Unity of Law and Morality (London, 1984).

void. MacCormick seeks to derive the desired universality by the

postulation (following Adam Smith) of the ideal impartial spectator:
By abstracting from one's particular involvement and confronting
an issue either in universalised terms or as it would appear to an
ideal impartial spectator, we objectify the issue. One poses it as
anyone's question, open to anyone's answer. Exactly what made
Smith the most persuasive of the particularists turns out to be in
truth a surrogate for universalisation in his theory.45
But anyone's question is anyone's void. What MacCormick and Smith
have not shown is how the impartial spectator's judgment is not also
incorrigibly particular; why he does not also confront the particularity
void. There are two questions of universalisation in practical judg-
ment. If I judge p the two questions of universalisation concern I,
the self, and p. The first question is whether I am to be universalised
to all moral agents judging p. That is one question of universalisation
and objectivity, and that one Smith's theory approaches. But the
other, which it does not deal with, is whether p is universal or
incorrigibly particular. Wittgenstein thought of two god-heads: "the
World and my Independent I".46Being god-heads both are particular,
resisting universalisation. But I don't make any judgment about I:
the self is not in the world, as Wittgenstein showed.47 Thus it is p
which opens the particularity void and casts doubt on the truth of all
practical judgments, subjective or objective.
In this essay I want to pursue the idea that the negotiation of the
particularity void depends upon the particular in respect of which my
action is contemplated speaking for himself. Suppose again that I am
a judge and I am contemplating judgment against a particular citizen.
If my respect is such that I allow him to speak for himself then I
respect him as an end in self. And is that not precisely respect for
his particularity? Is not his being particular his being an end in self?
Not quite. I have used the word "particular" so far (rather than,
say, "individual") to indicate my view that ultimately other humans
are just particular arrangements of the matter of the universe (other
humans: it is meaningless for me (I) to say it of myself). This austere
ontology is Wittgensteinian: "My attitude towards him is an attitude
towards a soul. I am not of the opinion that he has a soul."48 This in
my view is the state of nature that political philosophers have searched
for. There are no souls in nature awaiting discovery under some
super microscope. But the bleak loneliness of such a world is an
inducement to love (Wittgenstein's "attitude"), and in love the soul
45
Ibid., up. 14.
** Notebooks 1914-1916 (Oxford, 1961) 74e.
47
Tractates, 5.632-5.633.
" Philosophical Investigations (Oxford, 1953) 178e.

of the other is attributed. Thus from the state of nature by love

emerges politics in which humans are souls or, as we are putting it,
ends in selves.49 Particular arrangements of the matter of the universe
become particular ends in selves50 capable of speaking for themselves.
Now, I am a judge contemplating action against a particular
citizen. My contemplated action is connected to his action (what he
did to warrant judgment). And it is by our hypothesis connected to
his being an end in self. What is the connection between these two
things, that is between his action and his being an end in self (between
practicality and particularity)?
Action is purposeful. If I knock a glass from a table in the course
of a muscular spasm I perform no action. And, similarly, if you by
overriding strength force my hand the action of knocking the glass
from the table is not mine. But if there is a purpose in my movement
(attract attention, demonstrate the law of gravity . . .) there is an
action I have performed. And, of course, there are many intermediate
cases; for example, when I knock the glass in great anger, or
drunkenness. Any philosophy of action must be a philosophy of
purposes (ends). Now, law being a practical enterprise, it is concerned
to guide, influence or control the actions of citizens. This is not the
only way to achieve peace. We might cut off the hands of potential
pickpockets, whose subsequent omissions in the matter are not then
actions of obedience to the law. Or we might double the strength of
bank-vaults (or their defensive soft-ware); and we would not say that
a decrease in the number of bank robberies has been achieved by
law. Or we might achieve our ends by the force of war. We have in
these cases simply modified the world; not influenced, guided or
controlled the actions of citizens. More borderline cases occur when
citizens are tranquillised; or put in great terror to the point where
the law's sanction, so-called, is not just a reason for rational action
but, rather, an overwhelming domination of the person. Is compliance
in these circumstances a case of the action of citizens? Or is it, rather,
a modification of the world (a modification of certain brain-states in
citizens)? These cases are borderline, but the point is still clear: law
concerns not peace as such, nor the bringing-about of a certain peace,
but the actions of citizens in peace.
Action is necessarily particular. And this in two senses. First, an
action must be in relation to a particular or set of particulars. Thus I
might generate the purpose, intention or end to drink burgundy; but
until a particular bottle comes my way there is no question of my
49
This whole process I have examined in more depth in op. dt., note 7.
50
Note that the particularity void pre-exists the other soul; as can be seen if you really think hard
about (say) chopping down a tree.

performing the relevant action. This sense is, of course, quite obvious;
the second, perhaps, not quite so. For there to be an action there
must be a particular purpose or end of a particular agent. It may in
some vague way be a purpose or end of humankind to drink wine;
but unless it is particularly the purpose of a particular person it will
not feature in any description of anyone's actions. Thus in the matter
of obedience to the law, the law must be a particular end or purpose
of a particular citizen if he is to act in obedience to it. A statute for
example, must in some sense be his statute (taken into his ends).
Suppose it is a statute which provides the law for my case as a
judge (where A B and C judgment against the defendant). Now, if
we are able to say that the statute is the defendant's own statute has
not the crossing of the particularity void been authorised in the only
way possible; that is, by the authority of the particular himself? Of
course the statute does not have to be his statute in any immediate
way. He may not even know about it. But if the statute is authorised
by his community or constitution (the community or constitution
taken into his ends) that may be enough.
Usually these questions are not explicitly raised, for the simple
reason that, generally speaking, only citizens are brought to answer
charges before courts, and citizens are precisely those of whom it can
be said: the laws, including the statutes, are their laws. The point
should not be misunderstood. Because someone breaks a law it does
not follow that he disowns the law. Most convicted criminals do not
do this, but, rather, maintain their basic allegiance to their legal
system notwithstanding even an inclination to offend again when the
opportunity arises. What charges them is their community, and since
it is their community its laws are their laws in the fundamental sense.
Of course some law-breakers do disown the whole legal system that
charges them. And thus the laws are not their laws: they are external
to the law and strictly speaking at war with the community in the
Hobbesian sense (there are many problems with the analysis of
particular reasoning in war which we shall not here consider). But
occasionally the accused's particular connexion to the statute can be
raised. Consider this well-known case from Jennings:
Parliamentary supremacy means, secondly, that Parliament can
legislate for all persons and all places. If it enacts that smoking
in the streets of Paris is an offence, then it is an offence.
Naturally, it is an offence by English law and not by French law,
and therefore it would be regarded as an offence only by those
who paid attention to English law. The Paris police would not
at once begin arresting all smokers, nor would French criminal
courts begin inflicting punishments upon them. But if any
Frenchman came into any place where attention was paid to
English law, proceedings might be taken against him. If, for

instance, a Frenchman who had smoked in the streets of Paris

spent a few hours in Folkestone, he might be brought before a
court of summary jurisdiction for having committed an offence
against English law.51
Now, what will the Frenchman say, hauled up from Folkestone
to the magistrates? Quite simply: "It is not my law. You may punish
me if you like but it is not for an offence against law. I have broken
no law. You don't even pretend that I should in Paris have looked
to your law rather than my own." Were the trial to proceed it would
not be the trial of the Frenchman; it would be an argument (you may
call it a trial) between Englishmen as to what to do with this
Frenchman, who necessarily is thought of not as an end in self, but
as a means to (English) ends. The status of this (French) means to
an end in such a proceeding is no greater than that of, say, an
(English) dog the impounding of which Englishmen are arguing about
in court (it is of course an abuse of words to talk of an impounding
case as the trial of a dog). Now, this point must be insisted upon: if
the Frenchman is treated as human rather than dog then he is an
end in self, and if he is an end in self the fact that the laws are not
his laws {his end) is critical. There is no authority to cross the
particularity void. Only if the laws are his laws may they justly
(respectfully) be applied to him.
It is highly possible that English courts would follow Jennings and
apply the statute. This would not be to apply the laws to the
Frenchman. It would be to apply them in respect of him (as with the
dog) to others: we may take it that our statute authorising the arrest
of the Frenchman at Folkestone and his imprisonment applies to the
English officials involved). This would be to achieve peace (in relation
to the Frenchman) by force rather than the guidance of action. It
would not treat the Frenchman as an end in self. It would cross the
particularity void in respect of him by force. It would be a simple act
of war not law.
Jennings thought that his case was an illustration of the omni-
potence of Parliament. And it may be, even if it is admitted that the
statute cannot be applied to the Frenchman. There is nothing in this
part of our argument which suggests any limit at all to what Parliament
may enact for its citizens. Who are citizens is a question limiting the
application of the statute (B, what it is reasonable to apply) not a
limit on A, what it is reasonable to enact. Thus Raz's requirement
that the reasons for legislation not be reconsidered is absolutely
satisfied. But accepting that, its application is not the simple execution
of it. Nor would it be if the statute contained a section stating that it
51
The Law and the Constitution, 3rd edn (London, 1943) p. 149.

C.L. J. Law as Practical Reason 463
only applied to citizens (in our example adding a fourth universal to

A B and C); for the question would still be: who can that provision
be applied to? This last reflection shows that citizenship is always a
matter for the courts not the legislature; and citizenship is always a
matter of the determination of particular connexion (the connexion
which enables one to say: this is my statute) not the application of a
universal quality.
Jennings's case is a very good example of the difference between
A. Accept (apply) what is reasonable,
and
B. Accept (apply) what it is reasonable to accept (apply).
It might be highly unreasonable to ban smoking. Thus if the question
before the courts were the intrinsically reasonful A the legislation
would in the case even of a citizen be invalid (null in intrinsic reason,
as we put it earlier). But the question is B, and for citizens it is
reasonable (in a democracy) to accept the legislation notwithstanding
its unreasonableness. So it is reasonable to apply the unreasonable
ban on smoking. On the other hand the legislation might be highly
reasonable, and if its reasonableness were the judicial test it would
be applied to the Frenchman without further question. But the
question is B not A. And it is unreasonable (unreasonable if the
particularity void is respected) to apply this reasonable statute to one
to whom it is foreign: the reasonableness of A B C gives no authority
to cross the particularity void. In extreme cases the two questions, A
and B, merge. Dicey's statute requiring the execution of blue-eyed
babies may be said to be so wicked (so unreasonable) that it is foreign
to any human enterprise, and therefore the statute of no-one.
Likewise the case of Jews at Auschwitz. It is important to see here
that the argument does not turn upon killing, or wholly upon even
wickedness. Socrates before his execution was invited to escape. But
he said no. He had no law but Athenian law (where else might he go
at his age?). Thus the law that authorised his death was his law. It
was reasonable, Socrates judged, to accept his lawful execution.
Socrates himself authorised the law and the crossing of the particu-
larity void to his own death.52
Ill THE FULLNESS OF PRACTICAL REASON
Wittgenstein's two god-heads were "the World and my independent

I."53 A god-head is a point of mystery, a point where there is a void
52
Having one's law as a deep end in this way is a very complex thing. In op. tit., note 7 I have
argued (particularly in chapter 7) that law becomes the law of particular citizens not by original
contract but by a much more complex particular consensual connexion.
53
Loc. tit., note 46.

of reason. The god-head, world, is simply the world's particularity.

Reason led Davout to the acceptance of the norm: execute all Russian
spies. But the void of reason (the particularity void as we called it
in part II) stood between this norm and the particular Pierre.
Wittgenstein's second god-head is I, or the self: Davout might also
have said to himself, "it is reasonable to execute the enemies of
France, but why should / d o it?:"
'man disobeying
Disloyal, breaks his fealty, and sins,
Against the high supremacy of Heaven,
Affecting godhead'
Paradise Lost, Bk III
There is thus a second particularity void: one for the god-head I, as
well as the god-head, world; one for subject as well as object.
It is this subject void which defines the modernist predicament;
which activates, amongst other things, Critical Legal Studies. The
crisis of modernism, the very idea of modernism is of a self without
transcendent connexion:54 Without God, I am god-head and tragic
hero. For non-modernists (those who have God as their friend) the
fullness of practical reason comes from its connexion to God. John
Finnis's last chapter in Natural Law and Natural Right55 is an argument
towards that fullness. First the idea of God:
the originators of natural law theorizing, who did not suppose
that God has revealed himself by any such act of informative
communication, believed none the less that through philosophical
meditation one can gain access to the transcendent source of
being, goodness, and knowledge. Nor is this belief of Plato and
Aristotle irrelevant to their development of a teaching about
practical reasonableness, ethics, or natural right, in opposition
to the sceptics, relativists, and positivists of their day. For at the
foundation of such teachings is their faith in the power and
objectivity of reason, intelligence, nous. And there is much
reason to believe that their confidence in human nous is itself
founded upon their belief that the activity of human understand-
ing, at its most intense, is a kind of sharing in the activity of the
divine nous.56
If human practical reason leads to a certain conclusion about action
then its participation in divine reason would seem authority enough
•to cross both particularity voids: on the simple precept that my reason
is God's reason, I may do it (whatever it is). Of course I may get it
wrong. But that is an ordinary human possibility: it is no category
54
R. M. Unger, "The Critical Legal Studies Movement" (1983) % H.L.R. 563 at p. 561. See also
op. cit. note 7, Postscript 3.
55
Oxford, 1980.
56
Ibid., at pp. 392-393.

mistake. Yet still particularity holds out. Why I? Why this it? There
is required here a category leap: the particularity void cannot be
crossed by reason. In the end, according to this reasoning, it is only
God as particular (as my particular friend), rather than God as the
(ideal) conclusion of a philosophical meditation, who can make
the whole fullness of practical reasoning. Finnis notices the deep
uncertainty of Plato and Aristotle in their knowledge of God's nature
and relation to the world;57 and holds that only a revealed and
particular (therefore loving) God can cover that void (that void which
we can see as a particularity void).
Without some revelation more revealing than any that Plato or
Aristotle may have experienced, it is impossible to have sufficient
assurance that the uncaused cause of all the good things of this
world (including our ability to understand them) is itself a good
that one could love, personal in a way that one might imitate, a
guide that one should follow, or a guarantor of anyone's practical
reasonableness.58
It is friendship with the particular God which overcomes the subject
void: my rebellion to god-head is quelled. And it overcomes the
object void too in a way that is not merely definitional. Finnis's broad
definition of practicality (we earlier saw) is one which ignores the
object void. I set out more fully a passage I quoted briefly earlier:
But as the argument unfolds, we can see that it works, i.e.
induces understanding and knowledge of what is a full and
proper human existence, precisely by getting you to "imagine
yourself in a situation where you would be . . .", and asking
"Would you settle for this?"
True, the argument gets you to acknowledge something which
can indeed be expressed in a proposition about human nature.
But it does this by getting you to consider a question which,
though hypothetical, is none the less practical. (For the argument
would work in just the same way if the question were not
hypothetical but required of you a choice here and now between
the alternative lives (forms of life); thus its being hypothetical
does not remove its radically practical character.)*
A "full and proper human existence" conceived in friendship with a
particular God is particularity enough. The wonderfully incisive
definition of practicality that Finnis offers (the proposition "I think
X" is practical if the "I think" is not transparent to X)60 focuses
practical thought in the subject, which is not god-head when it is the
friend of the particular God. The object void is then not noticed. I,
57
Ibid., at p . 397.
58
Ibid., p . J3?9O8. .
1UIU. , JJ.
w
Supra, note 41.
60
Ibid., at p. 3.

466' The Cambridge Law Journal [1989]
the friend of the particular God, see no object void. God is

particularity enough.
For modernists the two particularity voids remain, and the main
problem in the philosophy of (modernist) practical reason is to give
an account of their crossing which can stand in their reasoning as
Finnis's account of the particular God does in his. Only then comes
the fullness of practical reason.
The common law is the ordinary law in two main senses. The term
came into our law from canon law:
The term common law (ius commune, lex communis, commun
dreit, commune lei) is not as yet a term frequent in the mouths
of our temporal lawyers. On the other hand, ius commune is a
phrase well known to the canonists. They use it to distinguish
the general and ordinary law of the universal church both from
any rules peculiar to this or that provincial church, and from
those papal privilegia which are always giving rise to ecclesiastical
litigation.61
These two senses of ordinary, not a local peculiarity and not a
privilege, passed into the secular law of England to give it its name:
From the ecclesiastical it would easily pass into the secular
courts. A bishop of Salisbury in 1252 tells the pope how, acting
as a papal delegate, he has decided that the common law makes
in favour of the rector of one church and against the vicar of
another. The common law of which he speaks is the common
law of the catholic church; but this bishop is no other than
William of York, who owes his see to the good service that he
has done as a royal justice. In connexion with English temporal
affairs we may indeed find the term ius commune in the Dialogue
on the Exchequer; the forest laws which are the outcome of the
king's mere will and pleasure are contrasted with the common
law of the realm. A century later, in Edward I's day, we
frequently find it, though lex communis (commune lei) has by
this time become the more usual phrase. The common law can
then be contrasted with statute law; still more often it is
contrasted with royal prerogative; it can also be contrasted with
local custom: in short it may be contrasted with whatever
is particular, extraordinary,
62
special, with "speciality" (aliquid
speciale, especialte).
The king's mere will: something not intrinsically reasonful in the

sense used in part I of this essay, that is, something which as mere
will has no intrinsically reasonful relation to prior law or right.
Modern statutes, we have seen, are mere will, too, in this way. They
61
Pollock and Maitland, The History of English Law, 2nd ed (Cambridge, 1898) p. 176.
62
Ibid., p . 177.

are not intrinsically reasonful and (which is the same thing) they are
not common. Of course, the law of the recognition of statutes (or of
the King's will) is common law: "apply what it is reasonable to apply"
is common law (or to be more precise the elaboration of what it is
reasonable to apply is common law). This is B, distinguished from A
"apply what is reasonable" in which (latter) reasonableness qualifies
the thing applied (legislation) not the act of application (common
law). Legislation was the fourth of our law-determining processes.
The other three processes (adjudication, advice and interpretation)
have creative elements as well; so some care is needed in identifying
the sense in which they are common. A special response to a legal
problem, an advice or a clarification, is not itself common, but the
reason of the common law being intrinsic to these processes (in the
way stated in part I) they are quickly submerged in the commonality
("The assizes of Henry II had worked themselves into the mass of
unenacted law, and their text seems already to be forgotten:" Pollock
& Maitland).63 Adjudications, too, are made and therefore special.
No one has ever pretended that adjudications were simply found (as
though judges consulting their books were consulting a speaking
oracle); but the common law, that which governed the adjudication,
was found not made. It had to be: if it were made it would be special
not common. It would be the law of judges not the law of commons
(a term we might now translate as people). The common law is quite
clear here. It is the modern jurisprudence with its ideas of prospective
overruling and judicial law-making which are confused.64 To say in
this way that law is found not made is no licence for conservatism in
the common law. Quite the opposite, really. Judges tend to be
conservative in temperament. If they make the law they will therefore
tend to make it conservatively. If, on the other hand, they find the
law in the people, and the people change, the law changes.65
A common law judge finds the law in the people. Our judge faced,
like Davout, with the object particularity void found in the consent
of the object citizen an authority to cross that void. But why judge-
subject and citizen-object? It is as though we are thinking of law as
something that exists for judges as subjects (the extreme of the judge-
centredness in jurisprudence that Raz rejected). Law (and judges)
exist for citizens, not vice-versa. Thus the citizen-object void is more
truly the citizen-subject void. And the fullness of law as practical
a
Ibid., p . 176.
64
Op. tit., note 3 at pp. 201-204.
65
A way in which this might translate into a programme of judicial reform in administrative law I
have offered in op. at. note 7.

reason is achieved when the law that judges apply is law that has
crossed the citizen subject void; when law is in a true sense the
citizen's law; when law is common law.
What is it, then, for law to be citizen's law? One answer is to
state the conditions under which law is taken into citizens' ends.66
Another is to ask whether there is law other than as citizen's law?
Hart distinguished internal attitudes to law from external,67 and this
provided the central element in his concept of law; but there was a
curious ambivalence here. What was internal to what? Was citizen
internal to rule; or rule internal to citizen? Most of what Hart says
suggests the former. For example:
It is important to distinguish the external statement of fact
asserting that members of society accept a given rule from the
internal statements of the rule made by one who himself accepts
it.68
It is as though the rule is constituted by those internal to it. But for
our present purposes the more interesting idea of internality is not
that when citizen is internal to law, but that when the rule or the law
is something that the citizen has taken as his own end, as Socrates
did the law of Athens. Then the law is internal to the citizen. It is
this second idea of internality which is needed to complete our
account of the practicality of law.
Let us compare a citizen who has law internal to him with one
who treats law externally. Suppose a judge applies law to an external
person (let us say he committed a criminal offence the penalty for
which was gaol). The first thing to notice is that since the criminal is
external he cannot be punished. But as I don't want here to get into
the intricacies of the theory of punishment, I had better say the
second thing. The judge is given no authority to cross the object
particularity void. The law is not the external person's end (it has
not crossed his subject void); so if he is to be treated as a particular
end in self the law cannot be applied to him. To treat him as end in
self is to treat him as subject. Treating him as subject, this law to be
applied to him is no common law because it is not his law. The
judge's practical reason is incomplete. If he thinks about it he is
brought to a halt as Davoiit was. He might cross the particularity
void by force (or habit, or uncaring brutishness) but not by law. In
one sense by law. The judge may think himself bound by law (as
Davout was by French law before he saw Pierre as particular). But
that is a special law, a law for the judge. It is not common law. On
66
Op. tit. note 7, which is concerned to state those conditions. See particularly chapter 7.
67
Op. tit. note 42.
68
Ibid, at p . 244.

the other hand, for the judge to apply law to an internal citizen (one
for whom the law is an end) the matter is quite different. There is
then (as we suggested in part II) authority to cross the particularity
void. As we have seen, the fact that a citizen has broken the law
does not mean law is not his end (internal to him). Some criminals
do abandon the law and their community entirely (or they have never
had it in them). Others do not, recognising that the law and their
community is deeply theirs, and therefore something wronged by
their crime (the sense here is of their having wronged themselves by
breaking their law). Only these may be punished, because only those
who have wronged themselves may be punished (though hardly by
the bestial institutions which we run today in the name of punishment).
The difference between internal and external citizens in practical
theorising about law has been noticed by John Finnis, who asks of
Hart's conception of the internal attitude:
But is there any reason not to apply to the philosophical concept
of the "internal viewpoint" those philosophical techniques
applied by Hart in his philosophical analysis of "law"—viz the
identification of a central or standard instance among other
recognizable but secondary instances?69
And answers:
we are led to adopt the position Hart was concerned to reject
when he advanced his list of possible sufficient motivations for
allegiance to law: the position that law can only be fully
understood as it is understood by those who accept it in the way
that gives it its most specific mode of operation as a type of
reason for acting, viz those who accept it as a specific type of
moral reason for acting. Once one abandons, with Hart, the bad
man's concerns as the criterion of relevance in legal philosophy,
there proves to be little reason for stopping short of accepting
the morally concerned man's concerns as that criterion . . .
Analytical jurisprudence rejoins the programme of philosophi-
zing about human affairs, the programme whose conditions have
been identified by Aristotle: We hold that in all such cases the
thing really
70
is what it appears to be to the mature man [the
spoudaios].
The internal citizen's concerns are the criterion of relevance in legal

philosophy, but we must be careful here to see that "internal" does
not mean the simple opposite of bad (it is the bad man's concerns
that are rejected). To the extent that we respect humans as ends in
selves the question is not one of their having or not having a good in
the sense of ideally true human attitude: it is true particular choice
" "Revolutions and Continuity of Law" in Oxford Essays in Jurisprudence (2ndseries) ed. Simpson
(Oxford 1973) p. 74.
™ Ibid., at 74-75.

not ideal truth which is fundamental in that sort of respect. Of any

particular human the question of his internal attitude to law is: is the
law in fact deeply his (an end chosen by someone who is true to
himself, rather than a fickle day-to-day convenience)? Spoudaios,
Aristotle's word, has an ambivalence here, which it is essential to
clarify. The normal translation of the passage in Aristotle71 is that
things are what they seem to the good man.72 This thoroughly subverts
Aristotle's purpose; and is anyway highly implausible, for a couple
of lines further on Aristotle resumes with the more conventional
words for good, arete and agathos. He is able to resume with these
words because he has avoided (at least sought to avoid) the obviously
question-begging form—good is what appears so to the good man—
by saying good is what appears to the spoudaios. Good is one meaning
of spoudaios, but its basic meaning is serious, as contrasted with
childish or fickle; hence Finnis's "mature". What Aristotle is seeking
to do with this word is apparent from his argument a few lines earlier:
"the same things do not seem sweet to a man in the grip of fever."
Thus sweet is what appears so to the healthy man, rather than the
question-begging, sweet is what appears so to the sweet-perceiver.
And maturity, seriousness of purpose, provides independent criteria
for the perception of good just as general health does for the
perception of sweetness. But only in practical, particular, perception.
If the mature man was an ideal of goodness, the circularity that
Aristotle sought to avoid would reassert itself, though it would be
obscured. Suppose good is A. How do we know? Because the mature
man tells us so. Who is the (ideal) mature man? The one mature
enough to perceive A! And the same for B, C, etc. But the mature
man is not an ideal. Aristotle's argument is not of the form: truth is
what appears to the truth-perceiver. In the matter of law the mature
man is every particular citizen who takes law as a deep and particular
end of his. Such a person is mature (serious) by virtue of his taking
some long-term thing as an end. He is mature in law by virtue of his
taking law as a long-term end. Law for such a person is common law
in the fullest sense. The immature (childish) person takes no long-
term thing as an end. The immature (childish) person in law takes
no law as a long-term end. There is no question here of our saying
that a mature person ought to take law as an end (imposing an ideal
on him). A long-term end of one sort of mature person might be the
accumulation of pleasure. He might treat law as a day-to-day means
to that end (use it when it aids the accumulation; avoid it when it
doesn't). He would be external in law, but mature in another way
71
Nic. Eth. 1176a 17.
72
JAK Thomson, Penguin, p. 298; John Warrington, Everyman, p. 224.

(immature in law, but mature in hedonism). And the long-term end

of another might be revolution. The point is to say that the fullness
of practical reason in law, and its central case, is achieved only in so
far as a legal system has (and recognises that it has) serious citizens
(those mature in the matter of law; those who have law as common
law). And that a legal system disposed to take the judicial maxim as:
A. Apply to citizens what is reasonable,
rather than one disposed so to respect the particularity void that it
regards its citizens as subjects within the judicial maxim:
B. Apply to citizens what it is reasonable to apply to them as
ends in self,
is a legal system of crippled practicality; of peripheral theoretical
concern; and not one of common law.

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Law As Practical Reason

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Cambridge Law Journal, 48(3), November 1989, pp.

LAW AS PRACTICAL REASON

LAW is practical. Legal reasoning is practical reasoning. We could

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

society results from their interaction with other social institutions

I REASON AND LAW

Law is a certain sort of practical reason. Coke's exceedingly controver-

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

to be performed, the common law will control it, and adjudge

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

characteristics a, b, c, . . . n) we still have a class, the class of vehicles

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

"interpretation" to describe the courts' adjudicative application of

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

(though subject to subsequent processes including judicial ones).

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

its terms applicable it must be applied unless there is a question as

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

are necessary to provide a complete conceptual basis for the analysis

Declared law is law determined in one or more of our first three

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

The idea of declaration implies logically some pre-existing source,

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

meet in studying the seventeenth century, they are apt to greet

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

types of law-determination are cases of making as well as declaring

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

the law of God. In Partridge v. Strange & Croker,™ we find him

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

The judicial process is a process of intrinsic reason. And so, at the

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

of statutory interpretation. So held C. K. Allen25 and Gough26; and

A. Refuse to accept what is unreasonable (Coke).

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

intrinsic reasonfulness of the general pronouncements it makes in the

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

theory of law with a theory of adjudication and legal considerations

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

statute is passed: Where A, B and C, persons shall do X. By moral

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

even in such legal systems, a distinct, logically required, question

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

be applied to me. The reasonableness of the norm (A) is no warrant

II THE PARTICULARITY OF ADJUDICATION

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

But am I right? I check my reasoning and conclude I am right. I

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

Davout looked up and gazed intently at him. For some seconds

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

composition we are ignorant. We shall thus indeed succeed in

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

void. MacCormick seeks to derive the desired universality by the

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

of the other is attributed. Thus from the state of nature by love

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press

instance, a Frenchman who had smoked in the streets of Paris

https://doi.org/10.1017/S0008197300109730 Published online by Cambridge University Press