Abstract
David McIlroy seeks in his recently published The End of Law to unpack the connection between law and justice. It is an ambitious undertaking for a book of 200 pages, but McIlroy succeeds with clarity and insight.
The End of Law—a title evoking the teleological sense of the word ‘end’—charts a middle course between two vexing tendencies in legal theory: positivism and idealism. McIlroy’s book would be worth reading for its critique of legal positivism alone. It argues persuasively that positivism cannot banish the idea of justice, no matter how hard it tries. Any legal system must claim its rules are ‘morally justified’, and that claim is necessarily an appeal to the notion of justice (p. 61). Indeed, as McIlroy says, Nazi atrocities led to the need for a revival of an independent standard against which to judge laws as they stand. The standard that emerged in the 1940s and 1950s was that of human rights (pp. 65–66).
But The End of Law does not stop by dismantling legal positivism. It also criticizes the dangers of legal idealism. Horrors can result when a legal system identifies justice too closely with its own positive laws. Examples abound. Developing McIlroy’s thesis in this direction, we might argue that a thoroughgoing positivism paradoxically ends up resembling excessive optimism about law’s capacity to instantiate justice. The strength of Karl Marx’s critique, McIlroy writes, is Marx’s recognition that justice expresses at best the ruling class’s version of justice and at worst that class’s cynical self-interest. The ruling class may nevertheless prevail if it succeeds in creating a ‘false consciousness’ (p. 87).
To more pessimistic students of political theology (construed as broadly as possible)—among whose numbers I count myself—some of McIlroy’s assertions can seem to express unwarranted hopefulness. Insisting that justice in some sense of that most elusive term is the thing that legitimizes law and the regime to which it belongs, McIlroy argues that people can be deluded for a time into believing that unjust laws are just but ‘history shows that a regime that lacks legitimacy with its subjects has a limited shelf life’ (p. 51). Perhaps.
Trying to sail between the Scylla and Charybdis of positivism and idealism is not in itself remarkable. What is remarkable in McIlroy’s account is the clarity with which he supplies a taxonomy of categories and vocabulary for thinking intelligently about the connection between law and justice. The landscape that emerges with elegant simplicity in The End of Law is, at least in part, as follows:
The authority of human law depends on a ‘pretended orientation towards justice’ (p. 2).
A legal system can survive with even a false claim to ‘substantive justice’ so long as it provides protection from violence to the majority of its subjects (p. 54).
‘Justice’ means one of the three things in its relation to positive law: ‘shallow justice’—the kind of justice that happens when rulers govern in accordance with the rules which have been laid down (p. 23); ‘deep justice’—‘the conceptions of justice that underlie a legal system’, sometimes called ‘values’ (pp. 23, 81); ‘true justice’—the standard against which laws are measured (p. 23).
Philosophers are divided on whether true justice exists. Oliver O’Donovan, Robert George and John Finnis think it does; Bentham and Kant did not (p. 32).
But true justice must exist; otherwise, how are we to choose one conception of deep justice over another? Without an account of true justice, justice becomes nothing more than moral voluntarism or whatever seems fair to us in the moment (pp. 133, 144).
An understanding of law that refers to deep justice gives rise to a prima facie case for obedience to the law, but this does not mean that deep justice is free from danger. Even Nietzsche failed to move beyond good and evil; he simply redefined the terms (p. 130).
Because law occupies an ambiguous position vis-à-vis true justice, developed legal systems always preserve some link between law and substantive justice but resist trying to replicate true justice. They also contain a robust measure of procedural justice to enable their subjects to determine if laws are properly enacted and rulers are legitimately placed in office, since an ongoing project of drawing precise connections between those laws and the actions of those rulers to substantive justice is neither possible nor desirable (pp. 145–46).
Setting up the interplay between law and justice this way allows McIlroy to land in valuable space for any political theologian (defining that term, again, with reckless abandon). The space I mean is that occupied by Augustine. For those of us whose natural bent is to read Augustine through a Reinhold Niebuhrian lens, McIlroy’s nuanced account is one of those essential periodic correctives. Part of Augustine’s genius, McIlroy writes, lies in his recognition that something other than a concern for true justice holds societies together (p. 151). In a general sense of the term, therefore, Augustine was perhaps a realist. But a Niebuhrian-realist reading of Augustine is too pessimistic in McIlroy’s estimation because it leads to quietism or reactionary political tendencies. ‘Augustine was prepared to recognize the value of an imperfect peace, while being alert to critique such a peace when it is a cloak for injustice’, he writes (p. 153).
One of the great contributions of The End of Law is McIlroy’s embrace of the way in which Augustine used the term ‘justice’. In the final analysis, the term is not to be defined. Two-and-a-half millennia of Western history should be enough to expose the dubious nature of that enterprise. Justice is a matter of standpoint. True justice can only come from one with infinite knowledge, ‘free from the intrinsic constraints that affect all human judgments’. It would have to be delivered ‘from the God’s-eye view’ (p. 179). Human justice, as Augustine taught us, is always situated. It is not transcendent. McIlroy is correct—deeply so—to recognize that ‘“the struggle for justice needs to begin by listening to the voices of the victims”, to “start from the bottom up, from the perspective of the losers and the oppressed”, to respond “to the call of the victim”’ (p. 161, quoting C. Douzinas and A. Gearey, Critical Jurisprudence: The Political Philosophy of Justice, Hart, 2005, p. 25).
The legitimacy of legal systems is a paradoxical concept in McIlroy’s account. What distinguishes legal systems from other forms of social order ‘is that a legal system protects its subjects against lawless violence’. But legal systems can be—and often are—selective in whom they do in fact protect from lawless violence (p. 53). A legal system may fail in part; it seems that most do. A system that fails completely is a tyranny, but in a system that fails partially, subjects ‘of a particular race, class, social grouping or social standing are not treated as subjects but as objects’, McIlroy says (p. 54).
That is why The End of Law is so timely. The book is an important read for an American, as I am, living through the unfolding events of 2020. McIlroy shines a clear light on current confusions in the United States over law enforcement and violence. The dichotomous tendency in American political thinking struggles to understand how the protection from lawless violence afforded by a law enforcement system can be both just and unjust. McIlroy gives us the answer. Law enforcement seems crucial because it is. It lies near the heart of what distinguishes a legal system from other random forms of human association. But at the same time it may operate so selectively against some members of society and in favour of others that it instantiates injustice rather than justice. McIlroy gives us the categories and vocabulary for concluding that we have a partial or incomplete legal system, a system of law that makes a prima facie case for its subjects’ obedience but then reveals a grotesque chasm between true justice and the system’s own deep-justice commitments. I think McIlroy is right, although his answer poses a serious challenge to the way the connection between law and justice typically works in liberal democracies like the United States. I think he is right to say that sooner or later we will have to articulate some notion of the Good, that is, of substantive goods. Justice may lack an ultimate definition, but it has a working definition: giving the good to each person. As McIlroy observes, the notion of justice does not travel far before it requires an account of the common good.
One question lingers: where do we find true justice? If I declare, for example, that America’s deep-justice commitments are profoundly flawed because they are intertwined with white supremacy and an account of the common good that defaults to reliance on the market (see p. 107), how can I and everyone else be sure that I am measuring those commitments against an objective standard? How do I know that I have passed beyond deep justice to true justice, rather than merely offering up an alternate version of deep justice?
McIlroy is a natural-law thinker, although he is careful to expose the difficulties that beset natural-law theories. He says those theories claim there are principles of true morality or justice that human reason can discover (p. 112). Therein lies my lingering question. I am not convinced that Augustine considered true justice widely accessible to human reason. Natural law would be an infinitely more appealing concept if it were universally available, that is, if all members of a society just tried a bit harder to use their rational faculties.
The End of Law has both a deconstructive and a constructive quality to it. That is why it is a good book. I am drawn to the deconstructive side. I am indebted to McIlroy for demonstrating how law’s unstable relationship to justice means that law’s efforts to justify itself are never wholly successful. They always ‘“suggest alternative schemes of human association”’ (p. 147, quoting R. Unger, ‘The Critical Legal Studies Movement’, Harvard Law Review 96 (1983): 578–79). I remain sceptical, however, that any society pushes very far into deep justice. A nod to substantive justice and a commitment to procedural justice may be the most we can hope for.
That is a minor quibble, assuming McIlroy would even disagree with it at all. For anyone interested in the link between law and justice (and what could be a more important link in our world?), McIlroy poses an ultimate question. If the equivocal relationship of law to justice continually suggests alternative arrangements, is that not because judgement ultimately requires a marriage of transcendence and immanence? That marriage, as McIlroy suggests, does not so much require a new or refined legal theory as it requires someone who is both transcendent and immanent.