Oakeshott on Law

The last essay in the collection.

To write about law in relationship to Michael Oakeshott’s ideas generally, or his thoughts on politics in particular, presents a complicated task, not because law is an obscure concept in Oakeshott and not because it is a topic about which he has written little. In fact, Oakeshott wrote about law and jurisprudence at the beginning of his life as a publishing scholar and was still writing essays on law more than half a century later. Rather, it is a challenge to write about Oakeshott and law because his ideas about law are so closely nested with related and interlocking concepts that it is very easy to start by thinking about law and find oneself considering authority or politics or his distinction between civil association and enterprise association. These concepts are woven together so tightly for Oakeshott that to pull one out and consider it on its own without attention to the others would badly misconstrue the idea. To express this idea in the terms that Oakeshott employs regarding Hegel and Hobbes, these ideas are related as in a system, and to attempt to understand any element of the system in isolation can generate only a limited and incomplete view, that is, a misunderstanding.

Yet this view of Oakeshott can itself lead to a misunderstanding, a mistaken belief that all he wrote about law over his life of analysis and commentary perfectly coheres. Instead, his thinking about law, as his thinking about politics, philosophy, and much else, changes over time, as we would expect from any complex and interesting thinker. His earliest published writing on law and jurisprudence comes before World War II, a period marked by the publication of Oakeshott’s first book, Experience and Its Modes, and like much of his writing of that time, “The Concept of a Philosophical Jurisprudence” bears the stamp of British idealism. In that work Oakeshott is less concerned with law itself than with what it would take to develop a philosophical explanation of law; he states there that he is not interested in the usage of “‘jurisprudence’ that refers to ‘case-law’ or ‘judge-made law,’ or the practice of a court” (CPJ, 154). Instead, he reviews various schools of the philosophical explanation of law and, much as he did regarding history or science in Experience and Its Modes, finds them wanting. These all fail to achieve a true philosophical jurisprudence, because they cannot attain what a philosophical explanation must. Oakeshott states, “a philosophical explanation is one which, in principle, is the relation of its subject to what I have called the totality of experience” (175).

What Oakeshott himself has to offer as a philosophical jurisprudence at this time is less clear, as he is more involved with the critical review of the claims of others and theorizing what a true philosophical explanation must be like than with offering a theoretical explanation of law. He even suggests, “it is unnecessary for me to apply in detail my view of the nature of philosophy to the study of the nature of law; I have given the principle and the reader, if he cares, can easily apply it himself” (CPJ, 175). Oakeshott’s early attention to law then is less about law than the nature of philosophical explanation and, like his writing on history or politics, in the period after the war, he would leave behind much of the attention to philosophical explanation according to the strictures of idealism and focus more on the actual consideration of law, history, and politics, among other matters.

Of course, differing judgments about how much and how significantly Oakeshott does change his views on various topics are a source of ongoing debates among various scholars who have interpreted his work. Yet it is not my intention here to rehearse those debates; rather, it is to suggest that discussing Oakeshott on law means encountering a dilemma that reflects one feature of those debates. Put simply and directly, two emphases can be found in Oakeshott’s writing about government and politics, and seeing how these are reflected in his ideas about law reveals some conflicts between those emphases.

On the one hand, there is an Oakeshott, famous to many, who highlights the significance of practical knowledge over technical knowledge, who focuses attention on the traditional elements of a community, and who is suspicious of attempts to create de novo clear, simple ways of organizing community by means of universal principles, shorn of any local encumbrances; that is, this is the Oakeshott who cautions against what he calls rationalism, this we might call the traditionalist Oakeshott. On the other hand, there is an Oakeshott who reflects on human conduct, agency, and freedom in universal terms and who develops ideal understandings of human interaction and considers the terms of that engagement, most specifically law. The elements of that later view, which we might call the formalist Oakeshott, are exemplified in works such as On Human Conduct and “The Rule of Law”; I will suggest later that this formalist Oakeshott advocates a conception of law at odds with the views of the traditionalist Oakeshott, exhibited in works such as “Rationalism in Politics” and “Political Education.” These two conceptions of law, a traditionalist and a formalist view, set up a potential conflict in Oakeshott’s writings on law, a contradiction that he never acknowledges directly. Still, his manner of espousing these two approaches may offer a way to see them as complementary instead of contradictory and in doing so point to a way of thinking about law that escapes the confines of this common dilemma.

In the preceding pages I have highlighted a contrast. First, I reviewed an Oakeshott whose works advocate the importance of traditional practices and customs in politics; his approach there is wary of abstract approaches to politics, those disconnected from or dismissive of a community’s traditions and customs, approaches that see law as something that can be rationally developed on the engineer’s chalkboard or applied as if from an architect’s blueprint. From this view, recognizable to anyone familiar with some of Oakeshott’s most famous works, I suggested a related understanding of law that would reflect this traditional approach. This traditionalist view of law would be less concerned with rationally distinguishing the various functions or departments that inhere in the very idea of law and would rather be open to the sometimes ramshackle ways in which particular peoples and communities develop institutions and laws to provide some stability and regularity to their community’s life. These laws would possess authority only to the extent that they reflect customary beliefs and sentiments and only when those subject to the law experience it as reflecting those beliefs and sentiments. The constable, the judge, the magistrate, or the member of a county council or even Parliament or Congress, among many others, may each potentially play a role as custodian of law.

While some may have the formal duty of creating law, the action of each authoritative agent contributes to its ongoing re-creation. In a healthy polity, law could then be adjusted to new conditions and changing customs and beliefs based on knowledge of what has been achieved; in an unhealthy or unlucky polity, much law may fall into desuetude when it is not amended to reflect new conditions or when legislators reject custom and tradition and try to create law anew. While nothing here mandates a role for judges, it would be easy to see them as uniquely positioned on an almost daily basis to assess how well the law and its subjects relate, to gain knowledge of how a particular case reflects previous cases and how previous decisions did or did not reflect settled understandings of justice, and to be aware of how their ruling contributes to ongoing expectations of what the law is. This is a roundabout way to suggest that the Oakeshott of his famous essays of the 1950s seems especially amenable to an understanding of the law deeply sympathetic to the common law. And it should be clear how far away this vision is from his formal writings on law.

When Oakeshott takes up the discussion of law in an essay such as “The Rule of Law” or in On Human Conduct, he explicitly rejects most of what I suggested was implicit in the earlier works. What gives law its authority? Neither its age nor its reflection of custom or common belief grants it authority, only that it is created in a formal legislative procedure. What makes such a formal procedure authentic? It takes place exclusively in an office of legislation explicitly authorized to make law—and nothing else. A law might be seen as just if it coheres with sentiments and beliefs about what the law should be, but this does not increase its authority; nor would a negative assessment of a law’s justice undermine its claim to be authentic law. If the earlier, admittedly implicit, view of law reflects a common law view, then this explicit and formal view pronounced by Oakeshott may best be understood in the framework of positive law theory.

Might these two conflicting views be reconciled? Oakeshott seldom associates his views on any matter with a school of thought or intellectual forebears, although he is often willing to distance himself from such. Yet he does offer a clue to just such an association. In discussing the idea of a state organized according to his understanding of the rule of law, he suggests that such a “vision . . . was pioneered by Bodin and by Hobbes. In spite of some unnecessary nods in other directions, its character and presuppositions were fully explored by Hegel” (OH, 161).

While Oakeshott writes comparably little of Bodin, both Hobbes and Hegel share twin billing as the philosophers with the largest presence in his thought, and in some ways they represent the two sides of the contrast. Hobbes especially reflects the formal character of law emphasized in the discussions from On Human Conduct and “The Rule of Law.”