Dirtying One’s Hands by Sharing a Polity with Others

Dirtying One’s Hands by Sharing a Polity with Others Abstract There are all sorts of ways in which one can dirty one’s hands in politics.  The classic problem is that of the political leader who finds he has to act immorally for the sake of the greater good. But some dirty-hands problems are more mundane. They arise out of the fact that one acts in politics alongside others, particularly in a democracy, and so one is not always in control of the values and principles that are being put into play. This happens sometimes because of the need for compromise; or through procedures like majority decision. Some of these cases have an interesting historical dimension. They reflect the fact that politicians have to act against the background of decisions made by their predecessors. Laws routinely remain in force, for example, despite the demise of the political factions that enacted them: so a politician may have to keep faith with and faithfully administer a legal decision he condemns. I argue that this is best understood not as the balancing of disparate personal convictions, but of his having to act in the name of the whole society (understood as an entity existing over time). The sense of “dirty hands” arises from the juxtaposition of the politician’s own convictions with the requirements of his particular role as speaking for an entity larger than himself. There are all sorts of ways in which one can dirty one’s hand in politics. Some of them arise out of the fact that one acts in politics alongside others, particularly in a democracy. Dennis Thompson has given more attention than anyone else to the democratic dimensions of the classic problem of “dirty hands.”1 But there is a version of that problem—or something that may reasonably be regarded as a version of that problem—that I think deserves more attention than he has given it. It may give us a new way of looking at cases of this kind. I. Clay Cross I shall begin with a story to illustrate the kind of “dirty hands” that interest me. The events that I shall describe happened in the United Kingdom between 1970 and 1975. They involved relations between government at the national level—first a Conservative administration, then a Labour one—and the local councilmen of a Derbyshire town called Clay Cross.2 Clay Cross was a Labour town. It had been a mining area, but as coal pits closed in the 1960s it became a center of unemployment and deprivation in the region. When the Labour Party gained control of the municipal council in 1963, it embarked on a program of slum clearance and public housing. This, combined with a deliberate decision to keep council house rents low, placed considerable pressure on the city’s finances. The city’s deficit grew to twice the Derbyshire average, and a number of residents complained that services like road maintenance were suffering so that local taxes could be devoted to the subsidization of council rents. In 1970 complaints by taxpayers to the district auditor produced a slight increase in rents. But as the 1970s went on, Clay Cross, with 1,600 council houses in an electorate of 7,000, remained “a government of the council house tenants, for the council house tenants, and, since all but one of the councilors live there, by the council house tenants.”3 In 1972 the Conservative government of Edward Heath—i.e., the Conservative government of the U.K. as a whole—passed a Housing (Finance) Act through Parliament to bring the activities of local councils like Clay Cross under control. Section 49 of the new law said the following: 49 (1) … it shall be the duty of every local authority and of every new town corporation to charge for each of their Housing Revenue Account dwellings a fair rent determined on the principles set out in sections 50 and 57 below. Section 50 required the council to determine a fair rent for each house on the basis of, among other things, “the return that it would be reasonable to expect on it as an investment.” The council was required to charge an amount approaching the rents that would emerge in a free market. Each authority had to determine fair rents for its area and submit them to a national Rent Scrutiny Board for approval. If the Board decided that the proposed rents did not meet the statutory criteria, it could substitute proposals of its own. Once fair rents were determined, local councils were required to make increases over the following few years to bring what they actually charged into line with the figures that were specified. Needless to say, the eleven Labour members of the Clay Cross local council were not enthusiastic about the new legislation. In September 1972, in common with a number of other Labour city authorities, they resolved not to implement the Housing (Finance) Act. When the Rent Scrutiny Board determined that rents in the area should be raised by slightly more than £1 a week, the councilmen refused to comply. The stage was set for a confrontation with the national government. By defying the law, the councilmen were embarking on a perilous course. Section 228 of the Local Government Act 1933 provided that it shall be the duty of the district auditor at every audit held by him … to surcharge the amount of any loss or deficiency upon any person by whose negligence or misconduct the loss or deficiency has been incurred. In other words, the councilmen might be obliged to make up the difference between the old rents and the new “fair” rents out of their own pockets. At the beginning of 1973, the auditor held each of the Clay Cross councilmen personally liable to pay £635—his share of the extra revenue that would have been collected if they had implemented the new law. They were all ordinary working men and this was enough to bankrupt most of them. The councilmen challenged the auditor’s decision in the courts, all the way up to the Court of Appeal, but all they got for their trouble was a legal bill for £2,000 to divide among them. In addition, they were barred from holding public office for five years under legislation (passed after similar crises in the 1920s) providing automatic disqualification for anyone surcharged £500 or more. As the dispute continued through 1973 and 1974, the deficit from uncollected rents continued to grow, and the councilmen faced the threat that a fresh audit might bring an additional surcharge of £100,000 or more. The Labour Party had always opposed the 1972 Act. When it was first enacted, Anthony Crosland, who was the Shadow Secretary of State for the Environment (i.e., the official Opposition spokesman on these matters), had warned Parliament that to legislate in this way—without bipartisan consent, without real consultation, and with no willingness to compromise—would invite members of local authorities to defy the law. Now with the Clay Cross councilmen—“the Clay Cross Eleven,” as they came to be called—facing huge financial penalties, the Labour Party came under pressure to do something. Quite apart from the unpopularity of the Housing (Finance) Act, many felt that the Conservative government had deliberately allowed the rent deficit to accumulate in order to ensure penalties high enough to make the councilmen an example to others.4 In October 1973, the Labour party’s national convention, with the support of the Ted Short, the Deputy Leader, pledged that if elected it would retrospectively remove all penalties from Clay Cross councilmen “who have courageously refused to implement the Housing (Finance) Act.” The resolution sparked a public controversy about the politics of law-breaking. The New Law Journal commented in an editorial that Mr. Short should resign since he had “publicly and with bravura encouraged a nationwide attack on the rule of law.” Within the Labour party the controversy was even more fierce. Many on the right of the party were appalled at what amounted to a proposal to pass a retrospective act of indemnity for the Clay Cross Eleven; they were appalled by the party’s commitment to use taxpayers’ money to exonerate partisan law-breakers. Sam Silkin, the shadow Attorney General, advised that the proposal would “contravene all constitutional practice and would set a dangerous precedent.” But a Labour Government was elected in 1974 and the problem had to be faced. Embarrassed by the party’s commitment in its convention platform, the new government announced its intention to repeal the Housing (Finance) Act, to remove the disqualifications from Clay Cross eleven, to prevent any further surcharges on councilors resulting from rent deficits, but to see that their existing penalties were settled privately rather than out of public funds. The announcement was widely regarded as an unsatisfactory compromise. The Clay Cross Eleven thought it was illogical that the disqualification should be removed but not the surcharges that had led to it. And the government’s critics inside and outside the Labour party charged that the removal of the disqualification amounted to the very act of indemnity that some had condemned as “unconstitutional” in 1973. Nevertheless, what The Times of London referred to as “a grubby little Bill”—the Housing Finance (Special Provisions) Bill—was introduced into the House of Commons in March 1975. The debate was fierce. Anthony Crosland, who sponsored the Bill (admittedly in some discomfort—“I have not,” he said, “in my political life faced a problem as difficult as this”), called it an act of “clemency” and “magnanimity” to heal “the sores opened up by the Housing (Finance) Act.” Crosland referred in private to the party’s undertaking to the Clay Cross Eleven as “this miserable promise.”5 The conservative Daily Telegraph lamented the spectacle of “the finest intellect and what was the finest sensibility in the Labour Party, reduced to mouthing things which others may believe to be true, but he must know to be false.” Others argued, however, that “the sovereignty of parliament surely meant that parliament could change its mind about any law.” That, they claimed, was the whole point of regular elections to the legislature—so that the representatives of the people could get rid of every last vestige of policies they now detested. Still, the opposition in the House was vehement. Some asked, “Why should Mr. Skinner of Clay Cross be let off while the motorist who over-parks suffers the full penalty of the law?” The conservative spokesman on legal issues said that Crosland’s Bill “undermines the rule of law for selective political reasons.” The next step, he said, would be for parliament to “decide that an action was innocent when committed but in retrospect was an offence for which people could be punished.” To “condone, encourage and finally indemnify” law breaking, he said, was the beginning of the end of the rule of law and of Parliament government. The affair finally fizzled out messily, as these things do. The Labour government was defeated on the issue in the House of Commons in August 1975 and forced to accept an amendment which prevented the removal of the councilmen’s disqualifications. But by then it was largely an academic question. In the meantime the Clay Cross Eleven had been surcharged once again, for financing irregularities unrelated to the Housing (Finance) Act. The Clay Cross council was abolished and swallowed up in a new regional authority for northwest Derbyshire. The 1972 Act was swept away by a new Labour housing law, and other councilmen around the country who had also resisted the Tory measure did not face any further penalties.6 II. Dirty Hands in Clay Cross One does not need to look far to find dirty hands or a sense of dirty hands in the story of Clay Cross. They are all over the place. (a) Starting from the end of the story, one can observe the palpable sense of moral and political distaste expressed in March 1975 by Labour minister Anthony Crosland who had the unenviable task of introducing legislation to retroactively change the legal position of Labour Party councilmen who had defied the law (as it then was) in the early 1970s and suffered the penalty. Crosland was committed by a vote of a majority within his party to pursue this policy of retroactive indemnification, which he regarded, perhaps rightly, as contrary to the rule of law. He was required, by his deference to a policy decision made by his party, with which he disagreed, to dirty his hands by acting (as he thought) in violation of a party-transcending principle—the principle that commanded respect for the rule of law, irrespective of the political provenance of any particular legal measure. (b) However, had the decision of the Labour Party convention in 1973 gone the other way, there would have been a different dirty-hands problem. Suppose the party convention had followed Tony Crosland’s and Sam Silkin’s line; suppose it had refused to commit itself to indemnifying the Clay Cross Eleven. (After all, the councilmen had broken the law.) Then after it was elected to power in 1974, the Party would have had to acquiesce both in the continuing political disqualification of some of its fiercest and most vulnerable loyalists and in the collection of massively disabling financial penalties from them—disqualifications and penalties that had been imposed under the auspices of Conservative legislation which all members of the Labour party (including Crosland) regarded as wrong-headed and unjust. In fact it might have been worse than that. The Clay Cross Eleven had been penalized and disqualified before the Conservative government fell. But some councilmen from municipalities other than Clay Cross had also defied the Conservative legislation, and it is possible that the question of their penalization and disqualification might have come up early in the Labour government’s new term, before it had had a chance to repeal the Housing (Finance) Act. So there is a question of dirty hands in the new government—hands that would be besmirched, from a Labour point of view, by their having to administer extant Conservative legislation. These were the dirty hands that the Labour majority recoiled from, in its insistence that Crosland must sponsor what was in effect an indemnification bill. (c) We can slip back even further to an earlier prospect of manual soiling. The Clay Cross Eleven were themselves faced with a problem of dirty hands when they were given the terms of the Housing (Finance) Bill to administer in their municipality. They knew the predicament of their tenants—poor, vulnerable, and unemployed, barely able to pay the existing rents for council housing for themselves and their families, let alone the “fair rents” required by the Rent Scrutiny Board under the auspices of unjust national legislation. Their duty as councilmen was clear—it was to administer the law, whether they agreed with it or not. But to carry out this duty would have been to soil their hands with the injustice of a Tory measure and to have acted against the very people they were sworn politically, if not legally, to protect, throwing out into the street poverty-stricken tenants who could not look after themselves. It was to avoid these dirty hands that the Clay Cross Eleven refused to raise the rents as the administration of the Housing (Finance) Act of 1972 required them to do. I think all three of these real or potential “dirty-hands” problems are worth our attention. In what follows, I shall have quite a lot to say about (b), a little less about (a) and (c). But I think all three of them require an analysis that is somewhat different from the problem of dirty hands in politics as it is usually conceived. III. The Classic Problem If I may use Dennis Thompson’s formulation, the classic problem of dirty hands involves “the political leader who for the sake of public purposes violates moral principles.”7 He may judge that he has to order acts of killing, kidnapping, or torture to avert a terrible terrorist attack; he may betray a whole community or brave participants in an insurgency for the sake of lofty geopolitical values; he may “stand ready to order death and destruction in a nuclear exchange”8 to deter his enemies from attacking an ally. To cite Max Weber’s paraphrase of Machiavelli, the ethics of political responsibility sometimes requires the statesman to prefer the salvation of his city to the salvation of his soul.9 Not all cases are so apocalyptic, of course. There are routine dirty hands (understood in the classic terms) as well as atrociously dirty hands—cases where what seem to be required are morally distasteful or disagreeable actions rather than utterly wicked ones like murder or torture. Bernard Williams has talked about the dirty hands required for ordinary nonemergency kinds of political action.10 Williams says, for example, that things like “lying, or at least concealment and the making of misleading statements; breaking promises; … sacrifice of the interest of worthy persons to those of unworthy persons; and … coercion up to blackmail” may all be required of a participant in ordinary politics, certainly a participant with any power in his hands, in order to have any chance of successfully promoting policies that he or she judges good and just.11 Dirty actions of this kind distinguish themselves by being more or less endemic in politics. If one is lucky, one will not have to face a choice between the security of the nation and prohibitions on torture or murder. But no such luck can be expected in regard to the more routinely distasteful or disagreeable actions I have just mentioned. As Williams put it, “it is a predictable and probable hazard of public life that there will be these situations in which something morally disagreeable is clearly required. To refuse on moral grounds ever to do anything of that sort is more than likely to mean that one cannot seriously pursue even the moral ends of politics.”12 In a moment I shall suggest that the kinds of dirty hands that I described in section 2 are even more endemic in politics than Williams’s routine dirty hands. I shall argue that the expectation that one might with luck be able to avoid them is even less realistic, and less realistic for a very good reason. I’ll talk about this in section 6. Before that, however, I want to draw a different distinction between two kinds of dirty hands. It is a distinction that separates the classic cases of atrocity, on the one hand, from both Williams’s routine cases and the Clay Cross cases, on the other. IV. Machiavellian and Arendtian Politics According to Hannah Arendt, we should always be mindful of participating in politics in a way that pays tribute to the fact that not one man, but men inhabit the earth13—not person but people. It is not merely that in politics one takes on responsibility for other inhabitants of the earth—or this particular part of the earth—in their millions (though one does). In a more active sense, one shares the political world with others—thousands of others—who are also committed to taking on such responsibility, and one needs to respect the essential plurality of the juxtaposition of their actions and one’s own actions, their reasoning and one’s own reasoning—indeed the actions and reasons of all of those who seek to shoulder this responsibility. I believe that this plurality has a lot to do with our understanding of the problem of dirty hands both in the routine cases that Bernard Williams is talking about and in the Clay Cross cases that I have introduced. In all these cases, the problem of dirty hands arises directly or indirectly out of the fact that my moral sensibility is not the only moral sensibility involved in the politics that I am involved in. My moral judgments have to be brought into relation with others’ moral judgments, and the moral judgments of some of those others, which may be implicated necessarily in political action along with mine, may be distasteful from my point of view; the juxtaposition of their actions and reasons with my actions or reasons may call for choices on my part which are morally disagreeable to me. Now Niccolò Machiavelli was as aware as anyone of the facts about plurality that Arendt drew attention to. No one can read his Discourses on the First Ten Books of Livy without taking away that impression.14 But I am going to draw a contrast between him and Arendt nevertheless—an unfair distinction, no doubt, but rooted in the fact that Machiavelli’s conception of the classic problem of dirty hands is presented primarily in The Prince, which studies the singular position of an individual ruler, and is presented as a problem that arises for the prince as an individual agent in the singularity of his particular care for his city. The classic cases of atrociously dirty hands that I mentioned in the first paragraph of section 3 are cases that involve a single agent faced with a hard choice in the defense of his city and those who live in it. Either he does something wicked in regard to the city’s enemies or the outsiders that surround and perhaps threaten the city, or he allows, by his omission, something damaging to happen to the city. The classic scenario, with which we are all familiar, involves a ruler choosing between (i) torturing a terrorist suspect to reveal the whereabouts of a bomb that may go off killing hundreds of people and (ii) refraining from torture (because it is wrong) and accepting the casualties that result from the culmination of the uninterrupted ticking of the bomb. Torture is wicked; but it may seem even more wicked not to rescue the potential victims of the bomb from the carnage that will result if the bomb is not found and disarmed.15 Or one may order the killing of an innocent person or the incineration of thousands of civilians because the consequences for one’s city and for the subjects committed to one’s care are judged even worse that these atrocities. We are all familiar with these scenarios and with the way they have played out in recent decision making by our rulers, from Harry Truman to George W. Bush and beyond. Arendtian pluralism—the fact that an agent shares the world with others and has to act politically in the company of others—does not seem essential in these scenarios. True, there are the issues of complicity that Thompson talks about: Oppenheimer as well as Truman; John Yoo and Jay Bybee as well as George W. Bush. Many people were involved in the relevant decisions. In Political Ethics and Public Office, Thompson devotes a chapter to the pluralistic aspect of the dirty-hands problem—“The Moral Responsibility of Many Hands”—in which he tries to lure us away from the image of the moral agent as “solitary figure, agonizing alone when making moral decisions, and acting alone when executing them.”16 Still, I want to say, there is a difference of kind between the role of plurality in the Machiavellian cases and the role of plurality in the Arendtian cases (the Williams cases and the Clay Cross cases). In the former category, the involvement of many people is not part of the problem. Problems of this kind are situational: in principle, they concern a single agent’s (or a single team’s) response to a situation. The problem is just that what seems to be required as the single ruler’s best response to a terrible situation is an action which, under normal circumstances (perhaps under any circumstances) would be judged wicked or atrocious. The ordinary cases highlighted by Bernard Williams and the Clay Cross cases are not like that. True, they all come down to a moment of individual decision: Williams’s politician’s decision to lie; Anthony Crosland’s decision to keep “this miserable promise” and sponsor this “grubby little Bill.” But the context that frames the decision is a context of action involving others; and the circumstances that elicit the decision are circumstances that arise out of the fact that others have a say in the matter as well. Of course no one can control the circumstances that crop up: that’s a lesson from all the dirty-hands cases. But in the Clay Cross cases and the Williams cases, action by one person in circumstances where others also are entitled to act is of the essence. And the problem is that our individual moral powers, over which we crave autonomous control, are implicated by decision making that is not just ours but others’ as well. So, for example, the cases that Williams mentions arise because, in the ordinary course of democratic politics, there are limits to what one can do without the acquiescence, cooperation, or enthusiasm of others; and often to secure their enthusiasm, cooperation, or acquiescence one may have to say things that are not strictly true, or promise things that one may not (or should not) be able to deliver, or occasionally threaten things that an honorable person should not be threatening.17 Ideally, one would convince others to join in one’s schemes and policies. But when time is short, one might have to secure their involvement or acquiescence by manipulation. All this, because in politics—in democratic politics particularly—one can neither act alone nor assume that the others with whom one must act share one’s initial views of the merits of the proposal one is pursuing. The Clay Cross cases are slightly different. They too arise out of the essential plurality of politics, especially democratic politics. But they involve situations of other persons having already acted in the polity that one shares with them, rather than situations of others’ cooperation or acquiescence being required: a. Tony Crosland had to act in a way that was distasteful to him because as Party member and as a Cabinet member he was subject to collective direction. The Party convention had made its decision, and the Cabinet had opted to follow it. Both were majority decisions; in both, Crosland was in effect outvoted. That left him with the task of doing something he regarded as wrong. b. If the Labour government had—as Crosland wished—upheld the penalties imposed under the Housing (Finance) Act, it would have been because their opponents—with whom they share the political world—had already acted and the Labour politicians had a duty, rooted in the rule of law, to respect the legacy of their actions as part of the law of the land. That is why they would have had to have done something distasteful, something contrary to their substantive principles. c. And something similar is true of the Clay Cross Eleven. Given the decision that had been made in Parliament in 1972, they were now required to threaten poor tenants in their city with eviction. This was a matter of their having to submit to the authority of national legislation, which prevails over any decision, enactment, or resolution at the local level. What the national legislation required the councilmen to do went against everything moral that they stood for, but the decision of others seemed to impose it on them as a requirement. Case (b) I find particularly intriguing and I shall say more about it in section 6, below. Cases (a) and (c) may seem, in a way, quite familiar in political philosophy. They involve problems about political authority: in case (a), there is the problem of the authority to be accorded a majority decision by one who voted against it, and in case (b), there is the authority to be accorded by a subordinate actor in politics to the decision of a superordinate person or entity with which he (the subordinate) disagrees. Now these do not always present themselves as problems of dirty hands. Often the problem of majority rule is just that A has to submit to or bear the brunt of a decision by B and C; even though A regards the majority decision as wrong, his submitting to it may not require him to dirty his hands. It may require him only to suffer evil, not to do it. But sometimes a majority decision may require wrong action on the part of members of the minority (i.e., action that they, but not the majority, judge to be wrong), not just the infliction of an unjust burden upon them.18 This is particularly so when the relevant lines of majoritarian or other legal authority are between officials rather than between an official and a citizen.19 Then the problem of dirty hands is quite likely to arise as the politician in the minority or the subordinate official is required actively to administer or participate in the administration of a policy that he voted against (or would have voted against) because he regarded it as wrong. V. The Individual Morality of Dirty Hands All dirty-hands cases of whatever kind appear to involve the paradox that some action which is wrong seems to be morally required. We make progress in the theory of dirty hands by understanding why the action in question seems to be morally required notwithstanding the fact that it is wrong.20 And we make further progress by understanding why it is important for something of the judgment that the action is wrong to survive the recognition that it is morally required.21 In the two Clay Cross cases I have been focusing on—(a) Crosland being bound by a majority decision in his party, and (c) the Clay Cross councilmen being bound by national legislation—it is not hard to formulate moral principles that explain the requirement to perform the action that one would ordinarily judge wrong. Principles of authority and principles of group decision can be cast in a moral light. In case (a), we may say that it is only fair that Crosland act in a way that takes proper account of the views of others involved in the same enterprise as him; and when they disagree it is morally appropriate—at least within certain limits—for him to acquiesce in the resolution of the disagreement by a decision procedure that is fair, even if that decision procedure selects for action a view that is not his view. Majoritarian principles are moral principles that apply to him at the individual level. Similarly for case (c): if there are good reasons for the centralization of certain aspects of housing policy (particularly in its impact on fiscal policy and the economy generally) then local officials have a moral responsibility to take those reasons into account and to comply with what the central government requires of them. To fail to comply would be to act as though the costs and incoherence of an uncoordinated policy in this area didn’t matter, and that would be morally irresponsible.22 These moral arguments in favor of deference to others stand alongside whatever moral arguments one might have had for one’s own view on the merits. In case (c), the argument about centralization, coherence, and compliance stands alongside the councilmen’s own convictions about social justice; they are in tension, but we fancy that a case might be made that the former set of moral considerations should prevail over the latter in the decision making of these individuals. And so too in case (a): Crosland held his own views about the importance of upholding the rule of law; but those moral considerations (which explained his vote in Cabinet against an indemnification bill) had to give way to more powerful moral arguments, involving respect for his Cabinet and Party colleagues in collective decision making. It is a matter of an individual weighing separate arrays of moral considerations against one another. And the way in which that weighing comes out might explain the impression that sometimes one has to act in a way that is—shall we say?—prima facie morally wrong. Things could have gone the other way, of course. Tony Crosland might have refused to obey the majority decision. (He would have had to resign.) And the Clay Cross Eleven did conceive, rightly or wrongly, that the moral substance of their views on social justice and housing policy should prevail over whatever moral principles of action required deference to the central legislature in a large political system. They refused to dirty their hands. These outcomes were or would have been the upshot of a different balance in the individuals’ weighing of moral considerations against one another. My point is not to argue in favor of one outcome or the other. It is to acknowledge that this sort of weighing of competing moral reasons, which is perfectly familiar in moral life, might be applied to these cases too. Less familiar perhaps, in this context, but still quite persuasive are Bernard Williams’s observations about the importance of hanging on to the impression of “dirty hands”—”uncancelled moral disagreeableness”—even when one is convinced (as the upshot of the individual balancing I have been talking about) that one is doing the right thing: [W]e need to hold onto the idea, and to find some politicians who will hold onto the idea, that there are actions which remain morally disagreeable even when politically justified … . [O]nly those who are reluctant or disinclined to do the morally disagreeable when it is really necessary have much chance of not doing it when it is not necessary.23 One can see the point of this prettily easily in the instances I have called Williams cases (about deception, blackmail, etc.) And there is a sense, too, that this is going on in Crosland’s case. He doesn’t just embrace the majority decision; he remains aware of just how disagreeable the action is which he thinks himself morally required to perform. There are other reasons too why Crosland would not want to let go of his own view of the merits of the matter. He was defeated, yes, in a majority vote; but there might be other opportunities to vote on issues like this and—except in cases where the first majority vote has created a precedent and there are moral reasons for deferring to that24—he would want to hang onto and to be prepared to act upon (vote on the basis of) the reasons that were defeated in the first round of voting. Things often come up for a vote again in politics or similar things may come up for a vote, and though one may be morally required to defer to a majority now, one must also be prepared for the possibility that a view like one’s own, the view defeated in the current round of voting, may prevail in a future round. So that is one good reason for a person to hang on to the sense of distaste that he feels for the action that he is currently required to do. So, to sum up this section of the paper, it is possible to reconcile the idea that one might be required to dirty one’s hands in politics with a complex sense of one’s own moral agency. One has one’s own autonomous moral view on the merits; one autonomously recognizes the moral force of principles concerning collective decision and respect for others’ views; one autonomously weighs the one set of considerations against the other and comes up with a conclusion; one acts, with moral responsibility as well as moral autonomy on the basis of that calculation; and then finally one keeps faith—again autonomously—with one’s original moral views, in case an opportunity should arise to pursue them in a way that accords with moral principles of collective decision and respect for others’ views. All this I understand as a sort of individualized characterization of the moral logic of dirty hands. It explicates the dilemma in terms of competing moral considerations that bear on individual choices. But I am not sure that this is always the best way to illuminating what is going on. To explain why, I want to focus in on case (b) from the Clay Cross story. VI. Against Year Zero I said that I thought that case (b) of dirty hands in the Clay Cross scenario was special. Case (b) is counterfactual and its relation to the other Clay Cross cases is complicated. It invites us to consider the possibility of Labour politicians upholding the unfair penalties imposed under the Housing (Finance) Act rather than indemnifying those who were penalized. It envisages the Labour politicians in London upholding the penalties because they conceived themselves to have a duty, rooted in the rule of law, to respect the legacy of their opponents’ enactments as part of the law of the land. Crosland wanted to do this; he thought he ought to do it. And his thinking that is perfectly compatible with a sense that he would have had to dirty his hands by upholding the impact of unjust legislation. He would have preferred to dirty his hands in the manner required by case (b) rather than dirtying his hands in the manner required by case (a). I suspect that case (b) cannot be dealt with simply as a case of complicated individual judgment, weighing moral reasons against one another, in the way that cases (a) and (c) seemed able to be dealt with in section 5. I think that in order to see what is at stake in case (b), we have to imagine our politician speaking in a different voice, under a different hat, occupying a different role than the one that he occupies when he speaks as a moral agent on his own account. This is what I shall argue for in this section and the next. Let us begin with a sense of what is at stake in case (b). On the one hand, Crosland and other Labour politicians would have felt that their hands were dirtied by their having to acquiesce in the continuing political disqualification of some of the party’s Derbyshire loyalists and in the collection of massively disabling financial penalties imposed upon them which they were in no position to pay. As I said earlier, they might even have had to impose further penalties and disqualifications on other Labour councilmen if their defiance of the law had come to light early enough in the new government’s term. Their hands would be dirtied (in their view) because these disqualifications and penalties would have been imposed (or would have to be imposed) as the upshot of Conservative legislation left over from the previous government, which the new Labour administration despised as unjust. On the other hand, until it was repealed, the Housing (Finance) Act of 1972 stood in 1975 as part of the law of the land. Its status as such was not affected by the election of 1974 or by the ouster of the Conservative government, whose parliamentary majority enacted the law. It’s a general point. All sorts of laws outlive the governments whose majorities enact them. Some live on for centuries; others for a few months or a few decades. We do not work with any sort of “Year Zero” principle which automatically invalidates all the laws that held sway under government A when government A is replaced, through electoral competition, by government B. Governments come and go in the turn-taking characteristic of electoral politics. But the legal measures they enacted and the legal arrangements that they inherited live on unless something specific and focused is done to repeal or overturn them. So when Labour took power in Britain in 1974, it inherited an array of laws enacted by its Conservative predecessors, and an array of laws enacted by the Conservatives’ Labour predecessors, and some laws enacted by the Conservative administration before that … and so on, all the way back to the statutes of medieval monarchs that no one ever got round to repealing. The statute book is replete with legislation that has survived four or five (or twenty or thirty, or two or three hundred) parliaments. And it is not just legislation. The principle of stare decisis ensures that the principles underlying judicial decisions continue to exercise their force in legal decision making long after the judges who gave force to them have gone under the ground and the monarchs who appointed the judges have passed away. Our law is a sort of archaeological midden of judicial and legislative decisions, all of which had their opponents in the day that they were made, all of which have long outlived the controversies that once surrounded them. The principle of the rule of law is—among other things—a principle that commands respect for all that. And that’s the principle that seems to command that sometimes politicians of one stripe have to dirty their hands with the administration of laws passed by politicians of a different stripe.25 I guess that if one is lucky, one’s parliamentary colleagues will get around to repealing the most objectionable of their predecessor’s enactments and not face one with the invidious task of having to administer them. But this is not luck that one can count on. Repeal itself is a laborious business and, in any case, it cannot be undertaken wholesale. It has to be done law by law. On the judicial side, precedents may be overturned; but that happens rarely and the case that has to be made is a difficult one.26 And even if a measure is overturned, there is still the residue of its administration by those who enacted it. The Clay Cross Eleven were penalized under a piece of legislation by the agents of those who enacted it. (Actually, they were penalized under a combination of the Conservatives’ Housing [Finance] Act of 1972 and earlier local government legislation dating from the 1920s and from 1933.) A case can be made that they weren’t penalized because they were Labour councilmen in a Tory world; they were penalized because of a breach of the law—as a whole—as the law—as a whole—then stood. Reversing their penalties, then, and their consequent disqualification would be like trying to create the impression that the relevant legislation or legislative combination had never existed. The Housing (Finance) Act might be repealed: there is nothing contrary to the rule of law in that. But reversing all traces of its presence when it was valid law—that it seems to me, and seemed to Crosland and others, would be an affront to the rule of law. For the rule of law commands respect not only for the laws that one likes (or adopts) but for the whole legal legacy that I have been talking about, which means all the laws that have been in force and all the juridical consequences for the time being of their validity. One can dispute this, I guess. Maybe there are some regimes so wicked that it would be better if all the legal work they did when they were in power—their enactments, their precedents, their administrative decisions, and their penalties—were expunged, if not in a Year Zero sort of way then certainly in a way that would take us back to the status quo ante before that generation of rulers began to abuse their power. Most of us think this way about Nazi law (to the extent that the Nazis ruled Germany though law at all); those who conquered Nazi Germany emptied the jails not just the camps.27 We think it also about some antebellum American slave law: what was emancipation if not an attempt to retroactively remove all legal traces of the slave laws’ administration during the time they were in force? And we may think it too about postapartheid South Africa: there, however, the new government discriminated among the measures and their effects that it would overturn; it would overturn banning orders, perhaps, and some prison sentences, but not necessarily property rights, however unjustly obtained. Those are cases of massive injustice and, even for them, there is controversy about how far we should go in airbrushing out all legal traces of the existence of a whole array of unjust laws. But there is also ordinary injustice, which has to be regarded as endemic in any modern society—if only because people disagree about justice so that roughly half the population is likely to oppose any given measure in this controversial terrain. Most people will regard some of the laws in the legacy of their society as unjust, though they will disagree about which ones. (From an objective view, they can’t both be right; but also, they can’t both be altogether wrong either.) Ordinary injustice is also endemic in another sense: the injustice (or alleged injustice) is not confined to any self-contained period (such as 1933–45 in the Nazi case); it is layered, marbled, striated, and imbricated throughout the whole midden of the law, so that—from a rule-of-law point of view—there is no question of sifting out the unjust from the just in any easy separation. True, actions applying law to an individual case often involve a focus on a particular provision, and that provision can be lifted out and judged just or unjust and a fastidious administrator might describe his hands as dirty or clean depending on that judgment. But once lawyers and courts become involved and arguments begin to be made back and forth, between parties or between an inspector or a prosecutor on the one hand and an individual or firm on the other, then the focus changes. I am persuaded by the jurisprudence of Ronald Dworkin that legal argumentation deals with particular provisions in the context and light of the law as a whole—the entire legal legacy—and that the leading virtue of such argumentation is integrity, the attempt to make coherent sense of the whole corpus juris in its bearing on our understanding of whatever particular provision we are arguing about.28 Inevitably then the lawyer or the judge, assessing things from the point of view of his own moral autonomy, will feel that his agency is besmirched somewhat by having to weave into the big picture that he is bringing to bear on the case in front of him statutes and precedents that he regards as wrong or unjust, case-law or legislative provisions that date from a time (last year or last century) when his particular moral sensibility did not hold sway in society’s law-making. This amounts to a huge moral challenge for the legal actor. It is hard enough as an intellectual matter to weave all the extant legal material into a (roughly) coherent story: many jurists, particularly in Critical Legal Studies, deny that coherence is available, given the variegated and often contradictory material in the legal midden.29 But even if he can concoct a coherent story of the law as a whole, in a form that can be brought to bear on whatever is at issue in his particular case, the coherent story will be morally compromised in all sorts of ways. For, in concocting it, he will have been required in the name of legal integrity to keep faith with past legal decisions, or with decisions being made to the left of him and to the right of him, that he himself feels morally uneasy about. He will be required to cite and apply, as though with approval, provisions and precedents that he judges wrong as well as provisions and precedents that he judges right. The resulting fabric may well have a warp and woof of injustice, for all that he tries to make the best of the legal material that is given to him. And, as I have stressed several times now, this will seem not just an unfortunate piece of bad luck, but business as usual for decision making in the law, par for the course given an ethic of adherence to legality.30 VII. Acting in the Name of a Whole Society In section 5, I considered the possibility that one can figure one’s way through most dirty-hands problems by understanding them in terms of competing moral principles making claims upon a single individual agent. We are familiar in many contexts with one moral principle’s claim upon us in a given situation being outweighed by other moral reasons or considerations in that situation. Dirty-hands cases are just particularly striking and disagreeable cases of this kind. And—according to this approach—controversies about dirty hands are just controversies about how to balance these competing reasons. What I called the Machiavellian cases naturally present themselves in this light, since they concern the moral calculations of a single ruler (or perhaps single ruling team or other entity). But even some of the Arendtian cases may be understood in this light as well. For although they involve the presence of many people, they can still be represented in terms of issues facing one individual in his dealings with others—in his relation to a superordinate authority, for example, or his relation to a majority of his equals in a situation of collective decision. I am much less sure about using this essentially individualistic account to characterize what is going on in case (b) or in any cases of the sort discussed in section 6. It seems to me that the example of a Cabinet Minister (particularly a law officer such as an Attorney General) taking responsibility for the administration of legal provisions enacted by a previous government is not plausibly or helpfully described by saying simply that he has added another set of moral reasons—reasons relating to the rule of law and the legal legacy confronting him—to the balance of reasons that he as an individual is already considering in relation to the measure that he has to administer or uphold. To my mind, it seems more helpful to say that he is speaking not in his own voice but in the name of the whole community and responding to reasons that apply to the whole community when he implements or upholds the application of the law in question.31 As a political animal—one individual among others in politics—he has his views about the merits of the law enacted by his predecessors. But as a law officer, he steps away from those views and adopts the perspective of society as a whole concerning its law as a whole. This displacement into a separate role seems to me to be quite different from a calculation that admits the reasons he has (or had) for opposing the law and balances those against his separate individual duty to uphold the law as it is. I don’t mean that no weighing or balancing of reasons is required in this different role. For example, a law officer taking responsibility in the name of the society for the law as a whole may have to balance various considerations concerning the law as a whole and society’s interests as a whole when he makes a particular prosecutorial decision. But in that balance his own individual views about the merits of the particular law in question should play a minimal role. Certainly this is how I would view the role of a judge in relation to the legal legacy that I talked about in section 6. The judge who applies a law that he personally disapproves of does not weigh the reasons that (as he thinks) count against the law against rule-of-law reasons that count in favor of his administering it. He switches away from the former set of reasons altogether when he puts on his judicial hat (or wig) and does all his reasoning about what is to be done concerning this law in the context of the whole array of laws facing him, in his role as a judge. He becomes, as Montesquieu would say, a mouthpiece for the law.32 Again it doesn’t mean that his task in role is a simple one. Quite the contrary: if there is any complexity in the legal reasoning required to interpret a given measure and to relate its interpretation in complicated ways to its context in the corpus juris and to other measures, doctrines, and precedents—if complex judicial reasoning is required—it may be impossible or impossibly convoluted to represent all that as ultimately individual moral reasoning (with various principles about the rule of law playing a significant role as applied to individual decision making). But whether or not it is possible to describe what is going on using only the model of complex individual moral reasoning, I think it is misleading. Moral reasoning is different depending on the role that one occupies, and it is seldom helpful to reduce that difference to complexities in a single individual’s moral perspective.33 If these hunches are correct, then the problem of dirty hands in cases like this is best unraveled in terms of dissonance between roles, rather than in terms of the complexity of individual moral reasoning. Of course, such dissonance would not be experienced, unless there were a single person who had to juxtapose, in his own moral thinking, a sense of what he personally thought about the law he was administering with a sense of what his legal role required him to do. It is this juxtaposition that makes him feel that he is dirtying his hands by his own standards when he acts in the name of the whole society in the role that requires him to implement the law. It is not society dirtying its hands—or at least that is not his problem. It is his hands that are being dirtied by what he does in role. And those who want to persevere with the model of complex individual moral judgment can say that they are keeping faith with that point. Those who want to persevere with the model of complex individual moral judgment may point out, too, that it is a moral decision for him whether to step into the relevant role or not and that that decision should surely be informed in a complex way both by a sense of the importance of the role and by an understanding of what he might be required to do in it. In an extreme case, where he is aware that he may be required to do many things that are quite wicked in his capacity as judge or law officer, he may have to contemplate walking away from the role. And that reasoning has to be individual. If this possibility arises, then the person does have to balance as an individual the evil that the role requires of him against the social importance of the role and the damage that would be done to society by not having him fill it. But these are not ordinary cases: they are cases like judges in Nazi Germany or the antebellum United States34 or apartheid South Africa. In more ordinary cases, either this calculation is not necessary or it can be done perfunctorily, enabling the person in question to enter the relevant role and then begin moral reasoning in a voice other than his own. That doesn’t mean of course that his own view of the law that he is required to administer is not still juxtaposed with the reasoning that his role requires of him. And the juxtaposition may give rise to a sense of having dirtied his hands by acting in role. But the best way to understand the dirty-hands problem is just to leave matters there—leave the juxtaposition where it lies—rather than trying to characterize it as a single moral calculation by an individual. I think the view I am suggesting is at odds with an argument made by Joseph Raz in his article “Incorporation by Law,” addressing the relation between law and morality in judicial reasoning.35 Arguing from the premise that “even judges are humans”36 and that morality and moral reasons never cease to apply to them no matter what context they are acting in, Raz argues that if judges are required by law sometimes to do something other than what morality appears to require it is because morality requires them to do that. As he puts it, “they would not be subject to the law were they not subject to morality.”37 And it is morality as it applies to them, with its view (morality’s view) of the significance of the role they fill, that determines how far they are entitled to rely on their own moral view of a given legal provision as they approach the question of its administration. Morality can be complicated and moral considerations can conflict in a variety of ways, so that (according to Raz) right action sometimes requires edging some moral considerations out in favor of others. When we think of the special responsibilities of judges, we are reminded that they are analogous in some respects to the special responsibilities of teachers, doctors, parents, friends, and others, in that each one of those roles requires prioritizing some moral concerns at the expense of others.38 On this account, then, the best way of understanding a given person’s sense of dirty hands is that it assesses what morality requires overall in a given situation by reference to one or more of the moral standards that, in the situation, morality has to “edge out.” The standard that is edged out may be more familiar to us, morally, than the overall moral calculation, and that explains the impression that we are being morally required to do something morally disagreeable. Raz’s analysis seems compelling, but I am not persuaded that it elucidates the cases we have been considering. Though it acknowledges the point about roles, it does not quite do justice to the sense that in some roles (though not in others) we are required to speak in a different voice and to reason, morally, in a different character than we would if we were just acting on our own account. It is as though we were a different person (having taken on a different persona),39 rather than being the same person but just confronted with more moral complexity. Raz’s analysis works best for those role shifts—such as the practice of medicine—that don’t involve this element of separate personation. I think it works less well for cases, like judging, which involve speaking and thinking for and in the name of someone or something else. I developed this analysis primarily for case (b), which really would involve a convoluted analysis if we were to try applying the model of individual moral reasoning. For cases (a) and (c), the individual analysis is easier. (a) Crosland simply has to add one moral principle to his own moral assessment of the case—namely the principle that requires deference to a majority (out of fairness or whatever). That’s not hard to figure though. And similarly with (c): the Clay Cross councilmen need only add a straightforward moral principle of authority to reach the conclusion that, morally speaking, as individuals they are required to administer the Housing (Finance) Act. But though the individual moral analysis may be more straightforward for cases (a) and (c), I like to think that the analysis I have been arguing for might apply to them also. In case (a), Crosland acts on the majority view in his capacity as speaking for the Cabinet, not in his capacity (however complicatedly conceived) as an individual. And the sense of dirty hands arises simply out of the juxtaposition of what he is required to do in that role and what he would do (and what he voted to do) if he were acting on his own account as an individual politician. And similarly for case (c): the Clay Cross councilmen are not entitled to act on their own account when faced with the requirements of a national statute governing local officials. They are to act in the name of a law-governed authority, and it is just the juxtaposition of what that requires of them with what they would do if they were free of that role that generates the sense of dirty hands. Footnotes 1 Dennis Thompson, Political Ethics and Public Office (Harvard University Press, 1987). 2 I draw here on the account I gave of these events many years ago at the beginning of a chapter titled “Law and Politics” in Jeremy Waldron, The Law, (Routledge, 1990), Ch. 1. (The Law was a book in a series entitled “Theory and Practice in British Politics,” of which I was coeditor with Desmond King.) 3 Austin Mitchell, “Clay Cross,” Political Quarterly 45 (1974), 166 4 This view was expressed in leading articles in The Times (London), October 20, 1973 and March 20, 1974. 5 See Susan Crosland, Tony Crosland (London: Jonathan Cape, 1982), 282. 6 I drew this account mainly from contemporary records in The Times. There is a somewhat more sympathetic account of the end of the affair in David Skinner and Julia Langdon, The Story of Clay Cross (London: Spokesman Books, 1974), chs. 9–10. 7 Thompson, Political Ethics and Public Office, op. cit., 11. 8 Ibid. 9 Weber, “Politics as a Vocation,” in Gerth and Mills, eds., From Max Weber (Oxford: Oxford University Press, 1946), 126. 10 Bernard Williams, “Politics and Moral Character,” in Stuart Hampshire, ed., Public and Private Morality (Cambridge: Cambridge University Press, 1978). 11 Ibid., 59. 12 Ibid., 62. 13 Hannah Arendt, On Revolution (New York: Penguin Books, 1973), 175. 14 See, e.g., Niccolò Machiavelli, The Discourses, ed. Bernard Crick (New York: Penguin Books, 1974), 113–15 (Bk. I, ch. 4). 15 Needless to say, I am not committing myself here to the view that (i) is or could be the right course of action in the particular case of torture. See Jeremy Waldron, “Torture and Positive Law,” Columbia Law Review 105 (2005), 1681 and “What Can Christian Teaching Add to the Debate about Torture?” Theology Today 63 (2006), 330, both reprinted in Torture, Terror and Trade-Offs: Philosophy for the White House (Oxford University Press, 2010). The present article is not about the merits of any particular course of action; it is about the shape of the dilemmas we conceive ourselves to face. In a review of Torture, Terror, and Trade-offs, Susan Mendus (“Professor Waldron Goes to Washington,” Criminal Law and Philosophy 6 [2012]) argued that my view of torture would or should have been different if I had conceived of it in terms of the classic problem of dirty hands. But the fact that something can be stated in the framework of the classic problem of dirty hands does not by itself show that an action of type (i) can be licit or justified. Some such distasteful actions in some such situations may be justified; others may not be. Presumably we all agree that it would be wrong to rape a little child to persuade its parents to tell us where a ticking bomb was. In my view torture is more like raping a child than it is like (I don’t know) killing a civilian with a drone strike. 16 Thompson, Political Ethics and Public Office, op. cit., 40. 17 For a thousand such examples, see the two most recent volumes of Robert Caro’s great biography of Lyndon Baines Johnson. 18 The distinction may be important. In the Crito (Plato, The Last Days of Socrates [New York: Penguin Books, 1959]), Socrates refused to escape from Athens so as to avoid an unjust burden imposed by a majority (a death sentence); but he tells his audience in the Apology (ibid., 65) that he once just walked away rather than carry out the unjust action against another that he was authoritatively commanded to perform. It was, he implied, worse to do wrong than to suffer it. See also Richard Kraut, Socrates and the State (Princeton: Princeton University Press, 1984), 19–20. 19 See Jeremy Waldron, “Authority for Officials,” in Lukas Meyer, Stanley Paulson, and Thomas W. Pogge, eds., Rights, Culture, and The Law: Essays After Joseph Raz (Oxford: Oxford University Press, 2003), 45. 20 E.g., with some sort of two-level consequentialism, like Hare in Moral Thinking; or perhaps some sort of ‘threshold deontology’—ignoring for the moment various problems in the coherence and formulation of that “theory.” 21 For this last point, see Williams, “Politics and Moral Character,” op. cit., 60–65. 22 These are crude sketches of moral argument, set out for illustrative purposes. The argument of the paper does not depend on their cogency; it depends only on the point that arguments of this kind are likely available to explain why it is sometimes morally required of a person participating in politics to act on a moral view that is at odds with his own. 23 Williams, “Politics and Moral Character,” op. cit., 63 and 64. 24 For a sensitive discussion, see Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 211–14. 25 This paragraph is adapted from Jeremy Waldron, Law and Disagreement (Oxford: Oxford University press, 1999), ch. 9: “The Circumstances of Integrity.” 26 Cf. the famous 1966 Practice Statement of the House of Lords [1966] 3 All ER 77, per Lord Gardiner LC: “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating formal decisions of this house as normally binding, to depart from a previous decision when it appears to be right to do so.” 27 See Nikolaus Wachsmann, Hitler’s Prisons: Legal Terror in Nazi Germany, (New Haven: Yale University Press, 2004). 28 Ronald Dworkin, Law’s Empire (Harvard University Press, 1986), chs. 6 and 7. 29 Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review 89 (1976). For a response, see Dworkin, Law’s Empire, op. cit., 266–75 (on “internal skepticism”). And for an assessment of Dworkin’s response, see Jeremy Waldron, “Did Dworkin Ever Answer the Critics?” in Scott Hershovitz, ed., Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, (Oxford: Oxford University Press, 2006), 155. 30 For the connection between Dworkinian integrity and legality, see Ronald Dworkin, “Hart’s Postscript and the Character of Political Philosophy,” Oxford Journal of Legal Studies 24 (2004) 1, at 23 ff. 31 See Hobbes on personation, in Ch. XVI of Leviathan. 32 Montesquieu, The Spirit of the Laws, ed. Cohler, Miller, and Stone (Cambridge: Cambridge University Press, 1989), 157 (Book XI, ch. 6). 33 See also the discussion in Jeremy Waldron, “Do Judges Reason Morally?” in Grant Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory (Cambridge: Cambridge University Press, 2008), 38. A shorter symposium version of this is published as “Judges As Moral Reasoners,” International Journal of Constitutional Law 7 (2009), 2. 34 See Robert Cover, Justice Accused: Anti-Slavery and the Judicial Process (New Haven: Yale University Press, 1975) for a complex account of these cases. 35 Joseph Raz, “Incorporation by Law,” Legal Theory 10 (2004), 1. 36 Ibid., 2–3. 37 Ibid., 7 (italics omitted). 38 Ibid., 8. (The sentence that precedes the block quote is very close to Raz’s formulation as well.) 39 Hobbes again: see note 31 above. © The Author(s), 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Monist Oxford University Press

Dirtying One’s Hands by Sharing a Polity with Others

The Monist , Volume 101 (2) – Apr 1, 2018

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Abstract

Abstract There are all sorts of ways in which one can dirty one’s hands in politics.  The classic problem is that of the political leader who finds he has to act immorally for the sake of the greater good. But some dirty-hands problems are more mundane. They arise out of the fact that one acts in politics alongside others, particularly in a democracy, and so one is not always in control of the values and principles that are being put into play. This happens sometimes because of the need for compromise; or through procedures like majority decision. Some of these cases have an interesting historical dimension. They reflect the fact that politicians have to act against the background of decisions made by their predecessors. Laws routinely remain in force, for example, despite the demise of the political factions that enacted them: so a politician may have to keep faith with and faithfully administer a legal decision he condemns. I argue that this is best understood not as the balancing of disparate personal convictions, but of his having to act in the name of the whole society (understood as an entity existing over time). The sense of “dirty hands” arises from the juxtaposition of the politician’s own convictions with the requirements of his particular role as speaking for an entity larger than himself. There are all sorts of ways in which one can dirty one’s hand in politics. Some of them arise out of the fact that one acts in politics alongside others, particularly in a democracy. Dennis Thompson has given more attention than anyone else to the democratic dimensions of the classic problem of “dirty hands.”1 But there is a version of that problem—or something that may reasonably be regarded as a version of that problem—that I think deserves more attention than he has given it. It may give us a new way of looking at cases of this kind. I. Clay Cross I shall begin with a story to illustrate the kind of “dirty hands” that interest me. The events that I shall describe happened in the United Kingdom between 1970 and 1975. They involved relations between government at the national level—first a Conservative administration, then a Labour one—and the local councilmen of a Derbyshire town called Clay Cross.2 Clay Cross was a Labour town. It had been a mining area, but as coal pits closed in the 1960s it became a center of unemployment and deprivation in the region. When the Labour Party gained control of the municipal council in 1963, it embarked on a program of slum clearance and public housing. This, combined with a deliberate decision to keep council house rents low, placed considerable pressure on the city’s finances. The city’s deficit grew to twice the Derbyshire average, and a number of residents complained that services like road maintenance were suffering so that local taxes could be devoted to the subsidization of council rents. In 1970 complaints by taxpayers to the district auditor produced a slight increase in rents. But as the 1970s went on, Clay Cross, with 1,600 council houses in an electorate of 7,000, remained “a government of the council house tenants, for the council house tenants, and, since all but one of the councilors live there, by the council house tenants.”3 In 1972 the Conservative government of Edward Heath—i.e., the Conservative government of the U.K. as a whole—passed a Housing (Finance) Act through Parliament to bring the activities of local councils like Clay Cross under control. Section 49 of the new law said the following: 49 (1) … it shall be the duty of every local authority and of every new town corporation to charge for each of their Housing Revenue Account dwellings a fair rent determined on the principles set out in sections 50 and 57 below. Section 50 required the council to determine a fair rent for each house on the basis of, among other things, “the return that it would be reasonable to expect on it as an investment.” The council was required to charge an amount approaching the rents that would emerge in a free market. Each authority had to determine fair rents for its area and submit them to a national Rent Scrutiny Board for approval. If the Board decided that the proposed rents did not meet the statutory criteria, it could substitute proposals of its own. Once fair rents were determined, local councils were required to make increases over the following few years to bring what they actually charged into line with the figures that were specified. Needless to say, the eleven Labour members of the Clay Cross local council were not enthusiastic about the new legislation. In September 1972, in common with a number of other Labour city authorities, they resolved not to implement the Housing (Finance) Act. When the Rent Scrutiny Board determined that rents in the area should be raised by slightly more than £1 a week, the councilmen refused to comply. The stage was set for a confrontation with the national government. By defying the law, the councilmen were embarking on a perilous course. Section 228 of the Local Government Act 1933 provided that it shall be the duty of the district auditor at every audit held by him … to surcharge the amount of any loss or deficiency upon any person by whose negligence or misconduct the loss or deficiency has been incurred. In other words, the councilmen might be obliged to make up the difference between the old rents and the new “fair” rents out of their own pockets. At the beginning of 1973, the auditor held each of the Clay Cross councilmen personally liable to pay £635—his share of the extra revenue that would have been collected if they had implemented the new law. They were all ordinary working men and this was enough to bankrupt most of them. The councilmen challenged the auditor’s decision in the courts, all the way up to the Court of Appeal, but all they got for their trouble was a legal bill for £2,000 to divide among them. In addition, they were barred from holding public office for five years under legislation (passed after similar crises in the 1920s) providing automatic disqualification for anyone surcharged £500 or more. As the dispute continued through 1973 and 1974, the deficit from uncollected rents continued to grow, and the councilmen faced the threat that a fresh audit might bring an additional surcharge of £100,000 or more. The Labour Party had always opposed the 1972 Act. When it was first enacted, Anthony Crosland, who was the Shadow Secretary of State for the Environment (i.e., the official Opposition spokesman on these matters), had warned Parliament that to legislate in this way—without bipartisan consent, without real consultation, and with no willingness to compromise—would invite members of local authorities to defy the law. Now with the Clay Cross councilmen—“the Clay Cross Eleven,” as they came to be called—facing huge financial penalties, the Labour Party came under pressure to do something. Quite apart from the unpopularity of the Housing (Finance) Act, many felt that the Conservative government had deliberately allowed the rent deficit to accumulate in order to ensure penalties high enough to make the councilmen an example to others.4 In October 1973, the Labour party’s national convention, with the support of the Ted Short, the Deputy Leader, pledged that if elected it would retrospectively remove all penalties from Clay Cross councilmen “who have courageously refused to implement the Housing (Finance) Act.” The resolution sparked a public controversy about the politics of law-breaking. The New Law Journal commented in an editorial that Mr. Short should resign since he had “publicly and with bravura encouraged a nationwide attack on the rule of law.” Within the Labour party the controversy was even more fierce. Many on the right of the party were appalled at what amounted to a proposal to pass a retrospective act of indemnity for the Clay Cross Eleven; they were appalled by the party’s commitment to use taxpayers’ money to exonerate partisan law-breakers. Sam Silkin, the shadow Attorney General, advised that the proposal would “contravene all constitutional practice and would set a dangerous precedent.” But a Labour Government was elected in 1974 and the problem had to be faced. Embarrassed by the party’s commitment in its convention platform, the new government announced its intention to repeal the Housing (Finance) Act, to remove the disqualifications from Clay Cross eleven, to prevent any further surcharges on councilors resulting from rent deficits, but to see that their existing penalties were settled privately rather than out of public funds. The announcement was widely regarded as an unsatisfactory compromise. The Clay Cross Eleven thought it was illogical that the disqualification should be removed but not the surcharges that had led to it. And the government’s critics inside and outside the Labour party charged that the removal of the disqualification amounted to the very act of indemnity that some had condemned as “unconstitutional” in 1973. Nevertheless, what The Times of London referred to as “a grubby little Bill”—the Housing Finance (Special Provisions) Bill—was introduced into the House of Commons in March 1975. The debate was fierce. Anthony Crosland, who sponsored the Bill (admittedly in some discomfort—“I have not,” he said, “in my political life faced a problem as difficult as this”), called it an act of “clemency” and “magnanimity” to heal “the sores opened up by the Housing (Finance) Act.” Crosland referred in private to the party’s undertaking to the Clay Cross Eleven as “this miserable promise.”5 The conservative Daily Telegraph lamented the spectacle of “the finest intellect and what was the finest sensibility in the Labour Party, reduced to mouthing things which others may believe to be true, but he must know to be false.” Others argued, however, that “the sovereignty of parliament surely meant that parliament could change its mind about any law.” That, they claimed, was the whole point of regular elections to the legislature—so that the representatives of the people could get rid of every last vestige of policies they now detested. Still, the opposition in the House was vehement. Some asked, “Why should Mr. Skinner of Clay Cross be let off while the motorist who over-parks suffers the full penalty of the law?” The conservative spokesman on legal issues said that Crosland’s Bill “undermines the rule of law for selective political reasons.” The next step, he said, would be for parliament to “decide that an action was innocent when committed but in retrospect was an offence for which people could be punished.” To “condone, encourage and finally indemnify” law breaking, he said, was the beginning of the end of the rule of law and of Parliament government. The affair finally fizzled out messily, as these things do. The Labour government was defeated on the issue in the House of Commons in August 1975 and forced to accept an amendment which prevented the removal of the councilmen’s disqualifications. But by then it was largely an academic question. In the meantime the Clay Cross Eleven had been surcharged once again, for financing irregularities unrelated to the Housing (Finance) Act. The Clay Cross council was abolished and swallowed up in a new regional authority for northwest Derbyshire. The 1972 Act was swept away by a new Labour housing law, and other councilmen around the country who had also resisted the Tory measure did not face any further penalties.6 II. Dirty Hands in Clay Cross One does not need to look far to find dirty hands or a sense of dirty hands in the story of Clay Cross. They are all over the place. (a) Starting from the end of the story, one can observe the palpable sense of moral and political distaste expressed in March 1975 by Labour minister Anthony Crosland who had the unenviable task of introducing legislation to retroactively change the legal position of Labour Party councilmen who had defied the law (as it then was) in the early 1970s and suffered the penalty. Crosland was committed by a vote of a majority within his party to pursue this policy of retroactive indemnification, which he regarded, perhaps rightly, as contrary to the rule of law. He was required, by his deference to a policy decision made by his party, with which he disagreed, to dirty his hands by acting (as he thought) in violation of a party-transcending principle—the principle that commanded respect for the rule of law, irrespective of the political provenance of any particular legal measure. (b) However, had the decision of the Labour Party convention in 1973 gone the other way, there would have been a different dirty-hands problem. Suppose the party convention had followed Tony Crosland’s and Sam Silkin’s line; suppose it had refused to commit itself to indemnifying the Clay Cross Eleven. (After all, the councilmen had broken the law.) Then after it was elected to power in 1974, the Party would have had to acquiesce both in the continuing political disqualification of some of its fiercest and most vulnerable loyalists and in the collection of massively disabling financial penalties from them—disqualifications and penalties that had been imposed under the auspices of Conservative legislation which all members of the Labour party (including Crosland) regarded as wrong-headed and unjust. In fact it might have been worse than that. The Clay Cross Eleven had been penalized and disqualified before the Conservative government fell. But some councilmen from municipalities other than Clay Cross had also defied the Conservative legislation, and it is possible that the question of their penalization and disqualification might have come up early in the Labour government’s new term, before it had had a chance to repeal the Housing (Finance) Act. So there is a question of dirty hands in the new government—hands that would be besmirched, from a Labour point of view, by their having to administer extant Conservative legislation. These were the dirty hands that the Labour majority recoiled from, in its insistence that Crosland must sponsor what was in effect an indemnification bill. (c) We can slip back even further to an earlier prospect of manual soiling. The Clay Cross Eleven were themselves faced with a problem of dirty hands when they were given the terms of the Housing (Finance) Bill to administer in their municipality. They knew the predicament of their tenants—poor, vulnerable, and unemployed, barely able to pay the existing rents for council housing for themselves and their families, let alone the “fair rents” required by the Rent Scrutiny Board under the auspices of unjust national legislation. Their duty as councilmen was clear—it was to administer the law, whether they agreed with it or not. But to carry out this duty would have been to soil their hands with the injustice of a Tory measure and to have acted against the very people they were sworn politically, if not legally, to protect, throwing out into the street poverty-stricken tenants who could not look after themselves. It was to avoid these dirty hands that the Clay Cross Eleven refused to raise the rents as the administration of the Housing (Finance) Act of 1972 required them to do. I think all three of these real or potential “dirty-hands” problems are worth our attention. In what follows, I shall have quite a lot to say about (b), a little less about (a) and (c). But I think all three of them require an analysis that is somewhat different from the problem of dirty hands in politics as it is usually conceived. III. The Classic Problem If I may use Dennis Thompson’s formulation, the classic problem of dirty hands involves “the political leader who for the sake of public purposes violates moral principles.”7 He may judge that he has to order acts of killing, kidnapping, or torture to avert a terrible terrorist attack; he may betray a whole community or brave participants in an insurgency for the sake of lofty geopolitical values; he may “stand ready to order death and destruction in a nuclear exchange”8 to deter his enemies from attacking an ally. To cite Max Weber’s paraphrase of Machiavelli, the ethics of political responsibility sometimes requires the statesman to prefer the salvation of his city to the salvation of his soul.9 Not all cases are so apocalyptic, of course. There are routine dirty hands (understood in the classic terms) as well as atrociously dirty hands—cases where what seem to be required are morally distasteful or disagreeable actions rather than utterly wicked ones like murder or torture. Bernard Williams has talked about the dirty hands required for ordinary nonemergency kinds of political action.10 Williams says, for example, that things like “lying, or at least concealment and the making of misleading statements; breaking promises; … sacrifice of the interest of worthy persons to those of unworthy persons; and … coercion up to blackmail” may all be required of a participant in ordinary politics, certainly a participant with any power in his hands, in order to have any chance of successfully promoting policies that he or she judges good and just.11 Dirty actions of this kind distinguish themselves by being more or less endemic in politics. If one is lucky, one will not have to face a choice between the security of the nation and prohibitions on torture or murder. But no such luck can be expected in regard to the more routinely distasteful or disagreeable actions I have just mentioned. As Williams put it, “it is a predictable and probable hazard of public life that there will be these situations in which something morally disagreeable is clearly required. To refuse on moral grounds ever to do anything of that sort is more than likely to mean that one cannot seriously pursue even the moral ends of politics.”12 In a moment I shall suggest that the kinds of dirty hands that I described in section 2 are even more endemic in politics than Williams’s routine dirty hands. I shall argue that the expectation that one might with luck be able to avoid them is even less realistic, and less realistic for a very good reason. I’ll talk about this in section 6. Before that, however, I want to draw a different distinction between two kinds of dirty hands. It is a distinction that separates the classic cases of atrocity, on the one hand, from both Williams’s routine cases and the Clay Cross cases, on the other. IV. Machiavellian and Arendtian Politics According to Hannah Arendt, we should always be mindful of participating in politics in a way that pays tribute to the fact that not one man, but men inhabit the earth13—not person but people. It is not merely that in politics one takes on responsibility for other inhabitants of the earth—or this particular part of the earth—in their millions (though one does). In a more active sense, one shares the political world with others—thousands of others—who are also committed to taking on such responsibility, and one needs to respect the essential plurality of the juxtaposition of their actions and one’s own actions, their reasoning and one’s own reasoning—indeed the actions and reasons of all of those who seek to shoulder this responsibility. I believe that this plurality has a lot to do with our understanding of the problem of dirty hands both in the routine cases that Bernard Williams is talking about and in the Clay Cross cases that I have introduced. In all these cases, the problem of dirty hands arises directly or indirectly out of the fact that my moral sensibility is not the only moral sensibility involved in the politics that I am involved in. My moral judgments have to be brought into relation with others’ moral judgments, and the moral judgments of some of those others, which may be implicated necessarily in political action along with mine, may be distasteful from my point of view; the juxtaposition of their actions and reasons with my actions or reasons may call for choices on my part which are morally disagreeable to me. Now Niccolò Machiavelli was as aware as anyone of the facts about plurality that Arendt drew attention to. No one can read his Discourses on the First Ten Books of Livy without taking away that impression.14 But I am going to draw a contrast between him and Arendt nevertheless—an unfair distinction, no doubt, but rooted in the fact that Machiavelli’s conception of the classic problem of dirty hands is presented primarily in The Prince, which studies the singular position of an individual ruler, and is presented as a problem that arises for the prince as an individual agent in the singularity of his particular care for his city. The classic cases of atrociously dirty hands that I mentioned in the first paragraph of section 3 are cases that involve a single agent faced with a hard choice in the defense of his city and those who live in it. Either he does something wicked in regard to the city’s enemies or the outsiders that surround and perhaps threaten the city, or he allows, by his omission, something damaging to happen to the city. The classic scenario, with which we are all familiar, involves a ruler choosing between (i) torturing a terrorist suspect to reveal the whereabouts of a bomb that may go off killing hundreds of people and (ii) refraining from torture (because it is wrong) and accepting the casualties that result from the culmination of the uninterrupted ticking of the bomb. Torture is wicked; but it may seem even more wicked not to rescue the potential victims of the bomb from the carnage that will result if the bomb is not found and disarmed.15 Or one may order the killing of an innocent person or the incineration of thousands of civilians because the consequences for one’s city and for the subjects committed to one’s care are judged even worse that these atrocities. We are all familiar with these scenarios and with the way they have played out in recent decision making by our rulers, from Harry Truman to George W. Bush and beyond. Arendtian pluralism—the fact that an agent shares the world with others and has to act politically in the company of others—does not seem essential in these scenarios. True, there are the issues of complicity that Thompson talks about: Oppenheimer as well as Truman; John Yoo and Jay Bybee as well as George W. Bush. Many people were involved in the relevant decisions. In Political Ethics and Public Office, Thompson devotes a chapter to the pluralistic aspect of the dirty-hands problem—“The Moral Responsibility of Many Hands”—in which he tries to lure us away from the image of the moral agent as “solitary figure, agonizing alone when making moral decisions, and acting alone when executing them.”16 Still, I want to say, there is a difference of kind between the role of plurality in the Machiavellian cases and the role of plurality in the Arendtian cases (the Williams cases and the Clay Cross cases). In the former category, the involvement of many people is not part of the problem. Problems of this kind are situational: in principle, they concern a single agent’s (or a single team’s) response to a situation. The problem is just that what seems to be required as the single ruler’s best response to a terrible situation is an action which, under normal circumstances (perhaps under any circumstances) would be judged wicked or atrocious. The ordinary cases highlighted by Bernard Williams and the Clay Cross cases are not like that. True, they all come down to a moment of individual decision: Williams’s politician’s decision to lie; Anthony Crosland’s decision to keep “this miserable promise” and sponsor this “grubby little Bill.” But the context that frames the decision is a context of action involving others; and the circumstances that elicit the decision are circumstances that arise out of the fact that others have a say in the matter as well. Of course no one can control the circumstances that crop up: that’s a lesson from all the dirty-hands cases. But in the Clay Cross cases and the Williams cases, action by one person in circumstances where others also are entitled to act is of the essence. And the problem is that our individual moral powers, over which we crave autonomous control, are implicated by decision making that is not just ours but others’ as well. So, for example, the cases that Williams mentions arise because, in the ordinary course of democratic politics, there are limits to what one can do without the acquiescence, cooperation, or enthusiasm of others; and often to secure their enthusiasm, cooperation, or acquiescence one may have to say things that are not strictly true, or promise things that one may not (or should not) be able to deliver, or occasionally threaten things that an honorable person should not be threatening.17 Ideally, one would convince others to join in one’s schemes and policies. But when time is short, one might have to secure their involvement or acquiescence by manipulation. All this, because in politics—in democratic politics particularly—one can neither act alone nor assume that the others with whom one must act share one’s initial views of the merits of the proposal one is pursuing. The Clay Cross cases are slightly different. They too arise out of the essential plurality of politics, especially democratic politics. But they involve situations of other persons having already acted in the polity that one shares with them, rather than situations of others’ cooperation or acquiescence being required: a. Tony Crosland had to act in a way that was distasteful to him because as Party member and as a Cabinet member he was subject to collective direction. The Party convention had made its decision, and the Cabinet had opted to follow it. Both were majority decisions; in both, Crosland was in effect outvoted. That left him with the task of doing something he regarded as wrong. b. If the Labour government had—as Crosland wished—upheld the penalties imposed under the Housing (Finance) Act, it would have been because their opponents—with whom they share the political world—had already acted and the Labour politicians had a duty, rooted in the rule of law, to respect the legacy of their actions as part of the law of the land. That is why they would have had to have done something distasteful, something contrary to their substantive principles. c. And something similar is true of the Clay Cross Eleven. Given the decision that had been made in Parliament in 1972, they were now required to threaten poor tenants in their city with eviction. This was a matter of their having to submit to the authority of national legislation, which prevails over any decision, enactment, or resolution at the local level. What the national legislation required the councilmen to do went against everything moral that they stood for, but the decision of others seemed to impose it on them as a requirement. Case (b) I find particularly intriguing and I shall say more about it in section 6, below. Cases (a) and (c) may seem, in a way, quite familiar in political philosophy. They involve problems about political authority: in case (a), there is the problem of the authority to be accorded a majority decision by one who voted against it, and in case (b), there is the authority to be accorded by a subordinate actor in politics to the decision of a superordinate person or entity with which he (the subordinate) disagrees. Now these do not always present themselves as problems of dirty hands. Often the problem of majority rule is just that A has to submit to or bear the brunt of a decision by B and C; even though A regards the majority decision as wrong, his submitting to it may not require him to dirty his hands. It may require him only to suffer evil, not to do it. But sometimes a majority decision may require wrong action on the part of members of the minority (i.e., action that they, but not the majority, judge to be wrong), not just the infliction of an unjust burden upon them.18 This is particularly so when the relevant lines of majoritarian or other legal authority are between officials rather than between an official and a citizen.19 Then the problem of dirty hands is quite likely to arise as the politician in the minority or the subordinate official is required actively to administer or participate in the administration of a policy that he voted against (or would have voted against) because he regarded it as wrong. V. The Individual Morality of Dirty Hands All dirty-hands cases of whatever kind appear to involve the paradox that some action which is wrong seems to be morally required. We make progress in the theory of dirty hands by understanding why the action in question seems to be morally required notwithstanding the fact that it is wrong.20 And we make further progress by understanding why it is important for something of the judgment that the action is wrong to survive the recognition that it is morally required.21 In the two Clay Cross cases I have been focusing on—(a) Crosland being bound by a majority decision in his party, and (c) the Clay Cross councilmen being bound by national legislation—it is not hard to formulate moral principles that explain the requirement to perform the action that one would ordinarily judge wrong. Principles of authority and principles of group decision can be cast in a moral light. In case (a), we may say that it is only fair that Crosland act in a way that takes proper account of the views of others involved in the same enterprise as him; and when they disagree it is morally appropriate—at least within certain limits—for him to acquiesce in the resolution of the disagreement by a decision procedure that is fair, even if that decision procedure selects for action a view that is not his view. Majoritarian principles are moral principles that apply to him at the individual level. Similarly for case (c): if there are good reasons for the centralization of certain aspects of housing policy (particularly in its impact on fiscal policy and the economy generally) then local officials have a moral responsibility to take those reasons into account and to comply with what the central government requires of them. To fail to comply would be to act as though the costs and incoherence of an uncoordinated policy in this area didn’t matter, and that would be morally irresponsible.22 These moral arguments in favor of deference to others stand alongside whatever moral arguments one might have had for one’s own view on the merits. In case (c), the argument about centralization, coherence, and compliance stands alongside the councilmen’s own convictions about social justice; they are in tension, but we fancy that a case might be made that the former set of moral considerations should prevail over the latter in the decision making of these individuals. And so too in case (a): Crosland held his own views about the importance of upholding the rule of law; but those moral considerations (which explained his vote in Cabinet against an indemnification bill) had to give way to more powerful moral arguments, involving respect for his Cabinet and Party colleagues in collective decision making. It is a matter of an individual weighing separate arrays of moral considerations against one another. And the way in which that weighing comes out might explain the impression that sometimes one has to act in a way that is—shall we say?—prima facie morally wrong. Things could have gone the other way, of course. Tony Crosland might have refused to obey the majority decision. (He would have had to resign.) And the Clay Cross Eleven did conceive, rightly or wrongly, that the moral substance of their views on social justice and housing policy should prevail over whatever moral principles of action required deference to the central legislature in a large political system. They refused to dirty their hands. These outcomes were or would have been the upshot of a different balance in the individuals’ weighing of moral considerations against one another. My point is not to argue in favor of one outcome or the other. It is to acknowledge that this sort of weighing of competing moral reasons, which is perfectly familiar in moral life, might be applied to these cases too. Less familiar perhaps, in this context, but still quite persuasive are Bernard Williams’s observations about the importance of hanging on to the impression of “dirty hands”—”uncancelled moral disagreeableness”—even when one is convinced (as the upshot of the individual balancing I have been talking about) that one is doing the right thing: [W]e need to hold onto the idea, and to find some politicians who will hold onto the idea, that there are actions which remain morally disagreeable even when politically justified … . [O]nly those who are reluctant or disinclined to do the morally disagreeable when it is really necessary have much chance of not doing it when it is not necessary.23 One can see the point of this prettily easily in the instances I have called Williams cases (about deception, blackmail, etc.) And there is a sense, too, that this is going on in Crosland’s case. He doesn’t just embrace the majority decision; he remains aware of just how disagreeable the action is which he thinks himself morally required to perform. There are other reasons too why Crosland would not want to let go of his own view of the merits of the matter. He was defeated, yes, in a majority vote; but there might be other opportunities to vote on issues like this and—except in cases where the first majority vote has created a precedent and there are moral reasons for deferring to that24—he would want to hang onto and to be prepared to act upon (vote on the basis of) the reasons that were defeated in the first round of voting. Things often come up for a vote again in politics or similar things may come up for a vote, and though one may be morally required to defer to a majority now, one must also be prepared for the possibility that a view like one’s own, the view defeated in the current round of voting, may prevail in a future round. So that is one good reason for a person to hang on to the sense of distaste that he feels for the action that he is currently required to do. So, to sum up this section of the paper, it is possible to reconcile the idea that one might be required to dirty one’s hands in politics with a complex sense of one’s own moral agency. One has one’s own autonomous moral view on the merits; one autonomously recognizes the moral force of principles concerning collective decision and respect for others’ views; one autonomously weighs the one set of considerations against the other and comes up with a conclusion; one acts, with moral responsibility as well as moral autonomy on the basis of that calculation; and then finally one keeps faith—again autonomously—with one’s original moral views, in case an opportunity should arise to pursue them in a way that accords with moral principles of collective decision and respect for others’ views. All this I understand as a sort of individualized characterization of the moral logic of dirty hands. It explicates the dilemma in terms of competing moral considerations that bear on individual choices. But I am not sure that this is always the best way to illuminating what is going on. To explain why, I want to focus in on case (b) from the Clay Cross story. VI. Against Year Zero I said that I thought that case (b) of dirty hands in the Clay Cross scenario was special. Case (b) is counterfactual and its relation to the other Clay Cross cases is complicated. It invites us to consider the possibility of Labour politicians upholding the unfair penalties imposed under the Housing (Finance) Act rather than indemnifying those who were penalized. It envisages the Labour politicians in London upholding the penalties because they conceived themselves to have a duty, rooted in the rule of law, to respect the legacy of their opponents’ enactments as part of the law of the land. Crosland wanted to do this; he thought he ought to do it. And his thinking that is perfectly compatible with a sense that he would have had to dirty his hands by upholding the impact of unjust legislation. He would have preferred to dirty his hands in the manner required by case (b) rather than dirtying his hands in the manner required by case (a). I suspect that case (b) cannot be dealt with simply as a case of complicated individual judgment, weighing moral reasons against one another, in the way that cases (a) and (c) seemed able to be dealt with in section 5. I think that in order to see what is at stake in case (b), we have to imagine our politician speaking in a different voice, under a different hat, occupying a different role than the one that he occupies when he speaks as a moral agent on his own account. This is what I shall argue for in this section and the next. Let us begin with a sense of what is at stake in case (b). On the one hand, Crosland and other Labour politicians would have felt that their hands were dirtied by their having to acquiesce in the continuing political disqualification of some of the party’s Derbyshire loyalists and in the collection of massively disabling financial penalties imposed upon them which they were in no position to pay. As I said earlier, they might even have had to impose further penalties and disqualifications on other Labour councilmen if their defiance of the law had come to light early enough in the new government’s term. Their hands would be dirtied (in their view) because these disqualifications and penalties would have been imposed (or would have to be imposed) as the upshot of Conservative legislation left over from the previous government, which the new Labour administration despised as unjust. On the other hand, until it was repealed, the Housing (Finance) Act of 1972 stood in 1975 as part of the law of the land. Its status as such was not affected by the election of 1974 or by the ouster of the Conservative government, whose parliamentary majority enacted the law. It’s a general point. All sorts of laws outlive the governments whose majorities enact them. Some live on for centuries; others for a few months or a few decades. We do not work with any sort of “Year Zero” principle which automatically invalidates all the laws that held sway under government A when government A is replaced, through electoral competition, by government B. Governments come and go in the turn-taking characteristic of electoral politics. But the legal measures they enacted and the legal arrangements that they inherited live on unless something specific and focused is done to repeal or overturn them. So when Labour took power in Britain in 1974, it inherited an array of laws enacted by its Conservative predecessors, and an array of laws enacted by the Conservatives’ Labour predecessors, and some laws enacted by the Conservative administration before that … and so on, all the way back to the statutes of medieval monarchs that no one ever got round to repealing. The statute book is replete with legislation that has survived four or five (or twenty or thirty, or two or three hundred) parliaments. And it is not just legislation. The principle of stare decisis ensures that the principles underlying judicial decisions continue to exercise their force in legal decision making long after the judges who gave force to them have gone under the ground and the monarchs who appointed the judges have passed away. Our law is a sort of archaeological midden of judicial and legislative decisions, all of which had their opponents in the day that they were made, all of which have long outlived the controversies that once surrounded them. The principle of the rule of law is—among other things—a principle that commands respect for all that. And that’s the principle that seems to command that sometimes politicians of one stripe have to dirty their hands with the administration of laws passed by politicians of a different stripe.25 I guess that if one is lucky, one’s parliamentary colleagues will get around to repealing the most objectionable of their predecessor’s enactments and not face one with the invidious task of having to administer them. But this is not luck that one can count on. Repeal itself is a laborious business and, in any case, it cannot be undertaken wholesale. It has to be done law by law. On the judicial side, precedents may be overturned; but that happens rarely and the case that has to be made is a difficult one.26 And even if a measure is overturned, there is still the residue of its administration by those who enacted it. The Clay Cross Eleven were penalized under a piece of legislation by the agents of those who enacted it. (Actually, they were penalized under a combination of the Conservatives’ Housing [Finance] Act of 1972 and earlier local government legislation dating from the 1920s and from 1933.) A case can be made that they weren’t penalized because they were Labour councilmen in a Tory world; they were penalized because of a breach of the law—as a whole—as the law—as a whole—then stood. Reversing their penalties, then, and their consequent disqualification would be like trying to create the impression that the relevant legislation or legislative combination had never existed. The Housing (Finance) Act might be repealed: there is nothing contrary to the rule of law in that. But reversing all traces of its presence when it was valid law—that it seems to me, and seemed to Crosland and others, would be an affront to the rule of law. For the rule of law commands respect not only for the laws that one likes (or adopts) but for the whole legal legacy that I have been talking about, which means all the laws that have been in force and all the juridical consequences for the time being of their validity. One can dispute this, I guess. Maybe there are some regimes so wicked that it would be better if all the legal work they did when they were in power—their enactments, their precedents, their administrative decisions, and their penalties—were expunged, if not in a Year Zero sort of way then certainly in a way that would take us back to the status quo ante before that generation of rulers began to abuse their power. Most of us think this way about Nazi law (to the extent that the Nazis ruled Germany though law at all); those who conquered Nazi Germany emptied the jails not just the camps.27 We think it also about some antebellum American slave law: what was emancipation if not an attempt to retroactively remove all legal traces of the slave laws’ administration during the time they were in force? And we may think it too about postapartheid South Africa: there, however, the new government discriminated among the measures and their effects that it would overturn; it would overturn banning orders, perhaps, and some prison sentences, but not necessarily property rights, however unjustly obtained. Those are cases of massive injustice and, even for them, there is controversy about how far we should go in airbrushing out all legal traces of the existence of a whole array of unjust laws. But there is also ordinary injustice, which has to be regarded as endemic in any modern society—if only because people disagree about justice so that roughly half the population is likely to oppose any given measure in this controversial terrain. Most people will regard some of the laws in the legacy of their society as unjust, though they will disagree about which ones. (From an objective view, they can’t both be right; but also, they can’t both be altogether wrong either.) Ordinary injustice is also endemic in another sense: the injustice (or alleged injustice) is not confined to any self-contained period (such as 1933–45 in the Nazi case); it is layered, marbled, striated, and imbricated throughout the whole midden of the law, so that—from a rule-of-law point of view—there is no question of sifting out the unjust from the just in any easy separation. True, actions applying law to an individual case often involve a focus on a particular provision, and that provision can be lifted out and judged just or unjust and a fastidious administrator might describe his hands as dirty or clean depending on that judgment. But once lawyers and courts become involved and arguments begin to be made back and forth, between parties or between an inspector or a prosecutor on the one hand and an individual or firm on the other, then the focus changes. I am persuaded by the jurisprudence of Ronald Dworkin that legal argumentation deals with particular provisions in the context and light of the law as a whole—the entire legal legacy—and that the leading virtue of such argumentation is integrity, the attempt to make coherent sense of the whole corpus juris in its bearing on our understanding of whatever particular provision we are arguing about.28 Inevitably then the lawyer or the judge, assessing things from the point of view of his own moral autonomy, will feel that his agency is besmirched somewhat by having to weave into the big picture that he is bringing to bear on the case in front of him statutes and precedents that he regards as wrong or unjust, case-law or legislative provisions that date from a time (last year or last century) when his particular moral sensibility did not hold sway in society’s law-making. This amounts to a huge moral challenge for the legal actor. It is hard enough as an intellectual matter to weave all the extant legal material into a (roughly) coherent story: many jurists, particularly in Critical Legal Studies, deny that coherence is available, given the variegated and often contradictory material in the legal midden.29 But even if he can concoct a coherent story of the law as a whole, in a form that can be brought to bear on whatever is at issue in his particular case, the coherent story will be morally compromised in all sorts of ways. For, in concocting it, he will have been required in the name of legal integrity to keep faith with past legal decisions, or with decisions being made to the left of him and to the right of him, that he himself feels morally uneasy about. He will be required to cite and apply, as though with approval, provisions and precedents that he judges wrong as well as provisions and precedents that he judges right. The resulting fabric may well have a warp and woof of injustice, for all that he tries to make the best of the legal material that is given to him. And, as I have stressed several times now, this will seem not just an unfortunate piece of bad luck, but business as usual for decision making in the law, par for the course given an ethic of adherence to legality.30 VII. Acting in the Name of a Whole Society In section 5, I considered the possibility that one can figure one’s way through most dirty-hands problems by understanding them in terms of competing moral principles making claims upon a single individual agent. We are familiar in many contexts with one moral principle’s claim upon us in a given situation being outweighed by other moral reasons or considerations in that situation. Dirty-hands cases are just particularly striking and disagreeable cases of this kind. And—according to this approach—controversies about dirty hands are just controversies about how to balance these competing reasons. What I called the Machiavellian cases naturally present themselves in this light, since they concern the moral calculations of a single ruler (or perhaps single ruling team or other entity). But even some of the Arendtian cases may be understood in this light as well. For although they involve the presence of many people, they can still be represented in terms of issues facing one individual in his dealings with others—in his relation to a superordinate authority, for example, or his relation to a majority of his equals in a situation of collective decision. I am much less sure about using this essentially individualistic account to characterize what is going on in case (b) or in any cases of the sort discussed in section 6. It seems to me that the example of a Cabinet Minister (particularly a law officer such as an Attorney General) taking responsibility for the administration of legal provisions enacted by a previous government is not plausibly or helpfully described by saying simply that he has added another set of moral reasons—reasons relating to the rule of law and the legal legacy confronting him—to the balance of reasons that he as an individual is already considering in relation to the measure that he has to administer or uphold. To my mind, it seems more helpful to say that he is speaking not in his own voice but in the name of the whole community and responding to reasons that apply to the whole community when he implements or upholds the application of the law in question.31 As a political animal—one individual among others in politics—he has his views about the merits of the law enacted by his predecessors. But as a law officer, he steps away from those views and adopts the perspective of society as a whole concerning its law as a whole. This displacement into a separate role seems to me to be quite different from a calculation that admits the reasons he has (or had) for opposing the law and balances those against his separate individual duty to uphold the law as it is. I don’t mean that no weighing or balancing of reasons is required in this different role. For example, a law officer taking responsibility in the name of the society for the law as a whole may have to balance various considerations concerning the law as a whole and society’s interests as a whole when he makes a particular prosecutorial decision. But in that balance his own individual views about the merits of the particular law in question should play a minimal role. Certainly this is how I would view the role of a judge in relation to the legal legacy that I talked about in section 6. The judge who applies a law that he personally disapproves of does not weigh the reasons that (as he thinks) count against the law against rule-of-law reasons that count in favor of his administering it. He switches away from the former set of reasons altogether when he puts on his judicial hat (or wig) and does all his reasoning about what is to be done concerning this law in the context of the whole array of laws facing him, in his role as a judge. He becomes, as Montesquieu would say, a mouthpiece for the law.32 Again it doesn’t mean that his task in role is a simple one. Quite the contrary: if there is any complexity in the legal reasoning required to interpret a given measure and to relate its interpretation in complicated ways to its context in the corpus juris and to other measures, doctrines, and precedents—if complex judicial reasoning is required—it may be impossible or impossibly convoluted to represent all that as ultimately individual moral reasoning (with various principles about the rule of law playing a significant role as applied to individual decision making). But whether or not it is possible to describe what is going on using only the model of complex individual moral reasoning, I think it is misleading. Moral reasoning is different depending on the role that one occupies, and it is seldom helpful to reduce that difference to complexities in a single individual’s moral perspective.33 If these hunches are correct, then the problem of dirty hands in cases like this is best unraveled in terms of dissonance between roles, rather than in terms of the complexity of individual moral reasoning. Of course, such dissonance would not be experienced, unless there were a single person who had to juxtapose, in his own moral thinking, a sense of what he personally thought about the law he was administering with a sense of what his legal role required him to do. It is this juxtaposition that makes him feel that he is dirtying his hands by his own standards when he acts in the name of the whole society in the role that requires him to implement the law. It is not society dirtying its hands—or at least that is not his problem. It is his hands that are being dirtied by what he does in role. And those who want to persevere with the model of complex individual moral judgment can say that they are keeping faith with that point. Those who want to persevere with the model of complex individual moral judgment may point out, too, that it is a moral decision for him whether to step into the relevant role or not and that that decision should surely be informed in a complex way both by a sense of the importance of the role and by an understanding of what he might be required to do in it. In an extreme case, where he is aware that he may be required to do many things that are quite wicked in his capacity as judge or law officer, he may have to contemplate walking away from the role. And that reasoning has to be individual. If this possibility arises, then the person does have to balance as an individual the evil that the role requires of him against the social importance of the role and the damage that would be done to society by not having him fill it. But these are not ordinary cases: they are cases like judges in Nazi Germany or the antebellum United States34 or apartheid South Africa. In more ordinary cases, either this calculation is not necessary or it can be done perfunctorily, enabling the person in question to enter the relevant role and then begin moral reasoning in a voice other than his own. That doesn’t mean of course that his own view of the law that he is required to administer is not still juxtaposed with the reasoning that his role requires of him. And the juxtaposition may give rise to a sense of having dirtied his hands by acting in role. But the best way to understand the dirty-hands problem is just to leave matters there—leave the juxtaposition where it lies—rather than trying to characterize it as a single moral calculation by an individual. I think the view I am suggesting is at odds with an argument made by Joseph Raz in his article “Incorporation by Law,” addressing the relation between law and morality in judicial reasoning.35 Arguing from the premise that “even judges are humans”36 and that morality and moral reasons never cease to apply to them no matter what context they are acting in, Raz argues that if judges are required by law sometimes to do something other than what morality appears to require it is because morality requires them to do that. As he puts it, “they would not be subject to the law were they not subject to morality.”37 And it is morality as it applies to them, with its view (morality’s view) of the significance of the role they fill, that determines how far they are entitled to rely on their own moral view of a given legal provision as they approach the question of its administration. Morality can be complicated and moral considerations can conflict in a variety of ways, so that (according to Raz) right action sometimes requires edging some moral considerations out in favor of others. When we think of the special responsibilities of judges, we are reminded that they are analogous in some respects to the special responsibilities of teachers, doctors, parents, friends, and others, in that each one of those roles requires prioritizing some moral concerns at the expense of others.38 On this account, then, the best way of understanding a given person’s sense of dirty hands is that it assesses what morality requires overall in a given situation by reference to one or more of the moral standards that, in the situation, morality has to “edge out.” The standard that is edged out may be more familiar to us, morally, than the overall moral calculation, and that explains the impression that we are being morally required to do something morally disagreeable. Raz’s analysis seems compelling, but I am not persuaded that it elucidates the cases we have been considering. Though it acknowledges the point about roles, it does not quite do justice to the sense that in some roles (though not in others) we are required to speak in a different voice and to reason, morally, in a different character than we would if we were just acting on our own account. It is as though we were a different person (having taken on a different persona),39 rather than being the same person but just confronted with more moral complexity. Raz’s analysis works best for those role shifts—such as the practice of medicine—that don’t involve this element of separate personation. I think it works less well for cases, like judging, which involve speaking and thinking for and in the name of someone or something else. I developed this analysis primarily for case (b), which really would involve a convoluted analysis if we were to try applying the model of individual moral reasoning. For cases (a) and (c), the individual analysis is easier. (a) Crosland simply has to add one moral principle to his own moral assessment of the case—namely the principle that requires deference to a majority (out of fairness or whatever). That’s not hard to figure though. And similarly with (c): the Clay Cross councilmen need only add a straightforward moral principle of authority to reach the conclusion that, morally speaking, as individuals they are required to administer the Housing (Finance) Act. But though the individual moral analysis may be more straightforward for cases (a) and (c), I like to think that the analysis I have been arguing for might apply to them also. In case (a), Crosland acts on the majority view in his capacity as speaking for the Cabinet, not in his capacity (however complicatedly conceived) as an individual. And the sense of dirty hands arises simply out of the juxtaposition of what he is required to do in that role and what he would do (and what he voted to do) if he were acting on his own account as an individual politician. And similarly for case (c): the Clay Cross councilmen are not entitled to act on their own account when faced with the requirements of a national statute governing local officials. They are to act in the name of a law-governed authority, and it is just the juxtaposition of what that requires of them with what they would do if they were free of that role that generates the sense of dirty hands. Footnotes 1 Dennis Thompson, Political Ethics and Public Office (Harvard University Press, 1987). 2 I draw here on the account I gave of these events many years ago at the beginning of a chapter titled “Law and Politics” in Jeremy Waldron, The Law, (Routledge, 1990), Ch. 1. (The Law was a book in a series entitled “Theory and Practice in British Politics,” of which I was coeditor with Desmond King.) 3 Austin Mitchell, “Clay Cross,” Political Quarterly 45 (1974), 166 4 This view was expressed in leading articles in The Times (London), October 20, 1973 and March 20, 1974. 5 See Susan Crosland, Tony Crosland (London: Jonathan Cape, 1982), 282. 6 I drew this account mainly from contemporary records in The Times. There is a somewhat more sympathetic account of the end of the affair in David Skinner and Julia Langdon, The Story of Clay Cross (London: Spokesman Books, 1974), chs. 9–10. 7 Thompson, Political Ethics and Public Office, op. cit., 11. 8 Ibid. 9 Weber, “Politics as a Vocation,” in Gerth and Mills, eds., From Max Weber (Oxford: Oxford University Press, 1946), 126. 10 Bernard Williams, “Politics and Moral Character,” in Stuart Hampshire, ed., Public and Private Morality (Cambridge: Cambridge University Press, 1978). 11 Ibid., 59. 12 Ibid., 62. 13 Hannah Arendt, On Revolution (New York: Penguin Books, 1973), 175. 14 See, e.g., Niccolò Machiavelli, The Discourses, ed. Bernard Crick (New York: Penguin Books, 1974), 113–15 (Bk. I, ch. 4). 15 Needless to say, I am not committing myself here to the view that (i) is or could be the right course of action in the particular case of torture. See Jeremy Waldron, “Torture and Positive Law,” Columbia Law Review 105 (2005), 1681 and “What Can Christian Teaching Add to the Debate about Torture?” Theology Today 63 (2006), 330, both reprinted in Torture, Terror and Trade-Offs: Philosophy for the White House (Oxford University Press, 2010). The present article is not about the merits of any particular course of action; it is about the shape of the dilemmas we conceive ourselves to face. In a review of Torture, Terror, and Trade-offs, Susan Mendus (“Professor Waldron Goes to Washington,” Criminal Law and Philosophy 6 [2012]) argued that my view of torture would or should have been different if I had conceived of it in terms of the classic problem of dirty hands. But the fact that something can be stated in the framework of the classic problem of dirty hands does not by itself show that an action of type (i) can be licit or justified. Some such distasteful actions in some such situations may be justified; others may not be. Presumably we all agree that it would be wrong to rape a little child to persuade its parents to tell us where a ticking bomb was. In my view torture is more like raping a child than it is like (I don’t know) killing a civilian with a drone strike. 16 Thompson, Political Ethics and Public Office, op. cit., 40. 17 For a thousand such examples, see the two most recent volumes of Robert Caro’s great biography of Lyndon Baines Johnson. 18 The distinction may be important. In the Crito (Plato, The Last Days of Socrates [New York: Penguin Books, 1959]), Socrates refused to escape from Athens so as to avoid an unjust burden imposed by a majority (a death sentence); but he tells his audience in the Apology (ibid., 65) that he once just walked away rather than carry out the unjust action against another that he was authoritatively commanded to perform. It was, he implied, worse to do wrong than to suffer it. See also Richard Kraut, Socrates and the State (Princeton: Princeton University Press, 1984), 19–20. 19 See Jeremy Waldron, “Authority for Officials,” in Lukas Meyer, Stanley Paulson, and Thomas W. Pogge, eds., Rights, Culture, and The Law: Essays After Joseph Raz (Oxford: Oxford University Press, 2003), 45. 20 E.g., with some sort of two-level consequentialism, like Hare in Moral Thinking; or perhaps some sort of ‘threshold deontology’—ignoring for the moment various problems in the coherence and formulation of that “theory.” 21 For this last point, see Williams, “Politics and Moral Character,” op. cit., 60–65. 22 These are crude sketches of moral argument, set out for illustrative purposes. The argument of the paper does not depend on their cogency; it depends only on the point that arguments of this kind are likely available to explain why it is sometimes morally required of a person participating in politics to act on a moral view that is at odds with his own. 23 Williams, “Politics and Moral Character,” op. cit., 63 and 64. 24 For a sensitive discussion, see Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 211–14. 25 This paragraph is adapted from Jeremy Waldron, Law and Disagreement (Oxford: Oxford University press, 1999), ch. 9: “The Circumstances of Integrity.” 26 Cf. the famous 1966 Practice Statement of the House of Lords [1966] 3 All ER 77, per Lord Gardiner LC: “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating formal decisions of this house as normally binding, to depart from a previous decision when it appears to be right to do so.” 27 See Nikolaus Wachsmann, Hitler’s Prisons: Legal Terror in Nazi Germany, (New Haven: Yale University Press, 2004). 28 Ronald Dworkin, Law’s Empire (Harvard University Press, 1986), chs. 6 and 7. 29 Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review 89 (1976). For a response, see Dworkin, Law’s Empire, op. cit., 266–75 (on “internal skepticism”). And for an assessment of Dworkin’s response, see Jeremy Waldron, “Did Dworkin Ever Answer the Critics?” in Scott Hershovitz, ed., Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, (Oxford: Oxford University Press, 2006), 155. 30 For the connection between Dworkinian integrity and legality, see Ronald Dworkin, “Hart’s Postscript and the Character of Political Philosophy,” Oxford Journal of Legal Studies 24 (2004) 1, at 23 ff. 31 See Hobbes on personation, in Ch. XVI of Leviathan. 32 Montesquieu, The Spirit of the Laws, ed. Cohler, Miller, and Stone (Cambridge: Cambridge University Press, 1989), 157 (Book XI, ch. 6). 33 See also the discussion in Jeremy Waldron, “Do Judges Reason Morally?” in Grant Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory (Cambridge: Cambridge University Press, 2008), 38. A shorter symposium version of this is published as “Judges As Moral Reasoners,” International Journal of Constitutional Law 7 (2009), 2. 34 See Robert Cover, Justice Accused: Anti-Slavery and the Judicial Process (New Haven: Yale University Press, 1975) for a complex account of these cases. 35 Joseph Raz, “Incorporation by Law,” Legal Theory 10 (2004), 1. 36 Ibid., 2–3. 37 Ibid., 7 (italics omitted). 38 Ibid., 8. (The sentence that precedes the block quote is very close to Raz’s formulation as well.) 39 Hobbes again: see note 31 above. © The Author(s), 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com

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The MonistOxford University Press

Published: Apr 1, 2018

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