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Jeremy Waldron*
Jeremy Waldron is University Professor and Professor of Law at New York University, a
position he has held since 2006. He has recently been elected to the Chichele Chair of Social
and Political Theory at All Souls College, Oxford, which he will hold jointly with his NYU
position beginning in 2011. Professor Waldron was born in New Zealand and educated in
law and philosophy first at Otago University and then at Oxford. His career has included academic appointments at Edinburgh, Berkeley, Princeton, and Columbia. His recent books
include God, Locke and Equality (Cambridge, 2002), and Torture, Terror and Trade-offs:
Philosophy for the White House (Oxford, 2010).
On the popular BBC radio show “Desert Island Discs” celebrity guests are asked to
choose a book that they would like to have with them if they were marooned on a
desert island (along with eight records, whose broadcast, along with an interview, is
more or less the point of the program).1 And just to get the obvious choices out of the
way, so the program does not become boring, guests are told that, of course, they will
already have a copy of the Bible and Shakespeare in their sea chest. The idea is to say
what else they would want. I have taken the same approach to this assignment. Of
course, Shakespeare and the Bible have influenced me; we can take that as read. I am
tempted to put John Rawls’s Theory of Justice in the same category, because it made
such a comprehensive difference in legal and political thinking, but I will not; I will
put it on my list.
On “Desert Island Discs,” the idea is to choose music and a book that one could not
do without. That is not quite the same as choosing books that have shaped one’s
intellectual persona—but I guess a book that shapes you is a book you should want
to keep close. On “Desert Island Discs,” the guests make choices that mean something
to them personally. The choices do not always relate directly to their professional work,
as actors, authors, politicians, or whatever. Again, there is a bit of a difference.
We have been chosen for the present assignment because of the work we do on
the role played by public law in our polities, and I guess our choices are supposed to
have some relation to that. But there are novels on my list, because often the books
*
1
Email: [email protected]
http://www.bbc.co.uk/radio4/factual/desertislanddiscs_archive.shtml
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that form you are those that take you out of yourself and out of the rigid categories of
your discipline.
1. John Rawls, A Theory of Justice
I will begin with books that formed me within my discipline. I am a political philosopher, and I came of age philosophically in a decade when political philosophy burst
back into life from the analytic desert in which it had been stranded. Three books
made all the difference in the 1970s, when I was finishing my philosophy degree and
beginning the study of law: Dworkin’s Taking Rights Seriously (1977), Nozick’s Anarchy, State and Utopia (1974), and, of course, Rawls’s Theory of Justice (1971). All
three are on my list.
I read Rawls’s book first in a small philosophy seminar at the University of Otago,
in New Zealand, where I grew up. The bottle containing the book did not really wash
up on our shores till about 1973, but what an impression it made! It just seemed like
a whole new way of doing political philosophy, much deeper and more complicated
than we had been used to. There was the whole “original position” structure; the idea
of reflective equilibrium; the complex articulation and defense of Rawls’s two principles; the Difference Principle itself and the idea of the maximin; and the powerful
challenge to utilitarianism. Compare it with what we had before 1971—Chaim Perelman’s The Idea of Justice and the Problem of Argument (1963) and Brian Barry’s Political
Argument (1965)—and you will see what I mean. Suddenly, the twentieth century
had produced something that could stand in the great tradition of Anglophone political philosophy, along with the work of Hobbes and Locke and Mill.
Above all, there was the gravity with which Rawls approached his task: “Justice is
the first virtue of social institutions, as truth is of systems of thought. A theory however elegant . . . must be rejected or revised if it is untrue; likewise laws and institutions
no matter how efficient and well-arranged must be reformed or abolished if they are
unjust.”2 There had not been anything like this seriousness in the study of justice since
the opening chapters of Thomas Carlyle’s book Past and Present (1843).
2. Robert Nozick, Anarchy, State and Utopia
When Rawls died in 2002, the New York Times said in an obituary that “[t]he conservative philosopher Robert Nozick . . . considered Dr. Rawls’s argument egalitarian
nonsense.”3 That is journalistic nonsense. Nozick was Rawls’s colleague at Harvard
and Nozick’s book, published three years after Rawls’s, was replete with observations
like “A Theory of Justice is a powerful, deep, wide, subtle, wide-ranging, systematic
work. . . . Political philosophers now must either work within Rawls’s theory or
explain why not.”4
2
3
4
JOHN RAWLS, A THEORY OF JUSTICE 1 (1971).
Douglas Martin, John Rawls, Theorist on Justice, Is Dead at 82, NEW YORK TIMES, November 26, 2002.
ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 183 (1974).
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Nozick did try to explain why not and his standards of explanation were so powerful
and demanding that they put backbone into a whole generation of rising political philosophers. Suddenly we discovered how to argue for things, rather than just appeal
cozily and knowingly to the liberal assumptions we were supposed to share with our
friends and professors. The challenge to these smug assumptions drove many philosophers crazy. Brian Barry said that Nozick was “proposing to starve or humiliate ten
percent of his fellow citizens (if he recognizes the word) by eliminating all transfer
payments through the state, leaving the sick, the old, the disabled, the mothers with
young children and no breadwinner, and so on, to the tender mercies of private
charity. . . ”5 However, he was not; he was just examining (and finding wanting) the
intellectual assumptions that underpinned the welfare state and egalitarian redistribution. Nozick insisted that his book was not “some sort of political tract.” It was “a
philosophical exploration of issues . . . which arise and interconnect when we consider
individual rights and the state.”
Even so, Nozick was quickly adopted by the libertarian right. Still, he was too
intellectually honest for that rough crowd. He refused to suppress his doubts about
the justice of actually existing capitalism in the United States, and he refused to
deny that a Rawlsian approach might be appropriate as a way of remedying that
injustice.6
3. John Locke, Two Treatises of Government
Political philosophy has a historical aspect as well as engaged and analytic dimensions. My first teaching assignment was to explain John Locke’s theory of government
to sophomore students. I bought a copy of Peter Laslett’s critical edition and read the
“Introduction.” Like most people I had always thought that Locke wrote the Two Treatises in 1689 to explain and justify the Glorious Revolution. Laslett showed that much
of it was written eight or nine years before that; the book was a call for a revolution
to take place, not a justification of one that had succeeded.7 After that, I never doubted
the importance of understanding the historical context that produced a work of political philosophy. However, I refused to accept what, for Laslett and many other political
theorists at Cambridge, was the corollary of this—that a work embedded in an historical context different from ours could not be used to illuminate modern problems.
So—on the Cambridge approach—it was an error of historical anachronism to use
Locke’s theory to cast light on modern discussions of property (Nozick’s included) or
rights or revolution or legislative supremacy—I mean Locke’s insistence that the
legislature is and ought to be the supreme power in every society because “it is in their
Legislative, that the Members of a Commonwealth are united, and combined together
5
6
7
Brian Barry, Review of Anarchy, State and Utopia, 3 POL. THEORY, 331, 332 (1975).
Id. at 231.
See the editor’s “Introduction” to JOHN LOCKE, TWO TREATISES OF GOVERNMENT, 45 ff (Peter Laslett ed., 1960)
(1689).
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into one coherent living Body.”8 I have never accepted this. The best works of political
philosophy seek actively to transcend their context; to answer opponents long dead,
for example, as Hobbes sought to answer Aristotle; or to lay down truths that the
author thought would be germane to what was necessarily a transcendent enterprise,
such as laying the foundations of a constitution that might be expected to endure for
centuries. Knowing the context was one thing; but confining these great works to the
political context that elicited them is one of the most destructive intellectual movements to emerge in political philosophy.
4. Ronald Dworkin, Taking Rights Seriously
Ronald Dworkin was my doctoral supervisor at Oxford, and he is now my colleague at NYU. His first book, Taking Rights Seriously, showed me—I think it showed
everyone—how interesting and lively jurisprudence could be. It also showed—and
this meant an immense amount to me—how to connect legal philosophy with political philosophy (as opposed to its traditional connection with moral philosophy,
unmediated by any concern about the political process), and how to connect both of
these with public issues like affirmative action, civil disobedience, and the enforcement of morality.
Let me say a word or two about Dworkin’s impact on jurisprudence. In those days,
everyone took H. L. A. Hart’s book, The Concept of Law (1961) as the starting point.
It was clear, rigorous, elegant, and Dworkin worked to and from the analytic theses
developed by Hart rather than to or from the Jello-like platitudes and pomposities that
had previously passed for legal philosophy in the United States. Hart had laid down
clear pathways and set out some main lines and structures for thinking about law and
legal systems. However, in Taking Rights Seriously and, later, in Law’s Empire (1986),
as well, Dworkin brought that landscape to life and gave it color and content, insisting
that the austere pathways of Hart’s conception had to be tested against and modified
in the light of the actual practice of lawyers and judges. And he did so—as he does in
all his work—in a style that is lucid, intelligent, conversational, and uses the tone of
conversation to give momentum to his arguments, so that readers can follow the often
quite complex but always rewarding trajectory of his thought.
5. The Book of Common Prayer
Where does one learn to write? From words and phrases in one’s head. My late
father was an Anglican vicar and a liturgical conservative, and the prayers and
liturgies laid out in this book resonate with me down the years as the voice of a
father heard every week for the first eighteen years of my life. I think, for example,
8
Id. at 407.
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of the third collect at Evening Prayer, haunting and echoing in a mostly empty
and half-lit church:
Lighten our darkness, we beseech thee, O Lord; and by thy great mercy defend us from all perils
and dangers of this night; for the love of thy only Son, our Savior Jesus Christ. Amen.
Many of the prayers are the work of Thomas Cranmer, Archbishop of Canterbury in
the reigns of Henry VIII and Edward VI, and it is his cadences that have formed generations of writers and worshippers. Listen to this phrasing (you have to do it out loud):
O God, from whom all holy desires, all good counsels, and all just works do proceed; give unto
thy servants that peace which the world cannot give; that both, our hearts may be set to obey
thy commandments, and also that, by thee, we being defended from the fear of our enemies
may pass our time in rest and quietness; through the merits of Jesus Christ our Saviour.
It is all there; the complexity of the single sentence with its dense network of subordinate clauses, and the poetic momentum of “our hearts may be set to obey thy commandments.” I am sure it has made a difference to how I read and write.
Or listen to the majesty of this saying, prescribed in the Book of Common Prayer for
“the Burial of the Dead”:
Thou knowest, Lord, the secrets of our hearts; shut not thy merciful ears to our prayer; but
spare us, Lord most holy, O God most mighty, O holy and merciful Saviour; thou most worthy
Judge eternal, suffer us not, at our last hour, for any pains of death, to fall from thee.
The power and terror of belief, there, is inescapable; the directness of Cranmer’s
language cuts brutally through the sentimentalism too often associated with funerals
as mere “memorial services.” For me, it is striking support for the proposition that
religion is not supposed to be merely a comfort.
6. H. L. A. Hart, Law, Liberty and Morality
In 1957, the Wolfenden Committee, which had been appointed by the British government to consider the state of the law on morals offenses, presented its recommendations. Its recommendations were liberal, and, in 1967, legislation to decriminalize
homosexual activity was enacted. The intervening ten years saw a remarkable debate in English public life. In 1959, a prominent judge, Lord Devlin (then a judge of
the Queen’s Bench and subsequently a Lord of Appeal in England) published a book
called The Enforcement of Morals that argued that society had the right to protect itself
from the disintegration of its moral code. Law, Liberty and Morality by H. L. A. Hart,
Professor of Jurisprudence at Oxford, was a response. It dealt in detail with Devlin’s
argument, and it revived the liberal arguments of John Stuart Mill, a century earlier,
in On Liberty.
Looking back on that debate, the most important impact it had on me was the sense
of how elevated and sustained public controversy could feed back into serious parliamentary deliberation. The decision to decriminalize homosexuality was not made by
the courts, as it was, much later, in the United States; it was made by Parliament, in
a wave of legislative reforms in the 1960s that also dealt with prostitution, abortion,
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and suicide. The same was true, under the influence of largely the same public debate, in New Zealand and elsewhere in the Commonwealth. Judges were involved,
certainly, and there was dialogue between parliamentarians and members of the judiciary. Lord Devlin gave his lectures and wrote a book. But it was the best sort of dialogue—conducted in the medium of public lectures, short books, radio talks, articles
in the leading newspapers and periodicals, as well as in the academic literature—rather than dialogue as it is sometimes imagined by defenders of judicial power on these
matters, where the legislature passes its laws but the judges keep sending them back
for correction.
7. Hannah Arendt, On Revolution
Hannah Arendt is one of the authors from whom I have learned the most. It is hard
to pick a favorite among her works, but my choice settles upon On Revolution. It is a
reflection on the divergent courses of the American and French revolutions, a profound meditation on American constitutionalism, and a lament for the passing from
the world of a certain sort of high-minded engagement with politics.
Much of Arendt’s writing is perverse and disconcerting. Her meditation on the
Constitution is no exception, but reading it is greatly rewarding, nonetheless. However, the passages I come back to are not the arguments about America, but her denunciation of Robespierrian politics in France. It is easy to denounce the Terror; less
easy, however, to diagnose the source of it, which (according to Arendt) was a cult
of revolutionary purity. In Arendt’s view, “this misplaced emphasis on the heart as
the source of political virtue” and the quest to extirpate hypocrisy from public life is
a recipe for madness. The human heart, she says, is “a place of darkness which, with
certainty, no human eye can penetrate.” She goes on: “When we say that nobody but
God can see (and perhaps can bear to see) the nakedness of a human heart, ‘nobody’
includes one’s own self—if only because our sense of unequivocal reality is so bound
up with the presence of others that we can never be sure of anything that only we
ourselves know and no one else. The consequence of this hiddenness is that our entire psychological life, the process of moods in our souls, is cursed with a suspicion we
constantly feel we must raise against ourselves, against our innermost motives.” We
would do well to remember this in our own politics, when we go round condemning
the hypocrisy of those whose motives, we believe, are not as pure as our own.
8. James Gould Cozzens, By Love Possessed
I love Cozzens’s novels. It is part of my love affair with the American literature of
the postwar period. His Guard of Honor won a Pulitzer Prize, but By Love Possessed
is Cozzens’s greatest novel. It is about small-town law practice in New England and
three days in the life of an upright ethical working lawyer, Arthur Winner, on whom
everyone else relies to settle their problems and their affairs. Dense and vivid in its portrayal of family and community in this setting, the novel culminates in the final fifty
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pages or so with the positing of a terrible ethical dilemma for Winner and one of his
partners. Winner discovers that an elderly figure in his firm has been juggling money
between trust accounts for many years, to cover and conceal (and eventually make
up for) a substantial misappropriation (about $200,000) from a trust fund for which
he has long had responsibility. The old man misappropriated this money in order to
mitigate the effects on the local community of the bankruptcy of a small transit company. Arthur Winner learns that another working partner in the firm has known of
this misconduct for some time, and that other partner convinces Winner that the matter should not immediately be revealed to the authorities, but that they should allow
the old man—perhaps with their secret connivance—to continue his juggling so that
in the end the fund might be made whole. Everything in Winner’s upbringing rebels
against this course, but his partner counsels him to save the octogenarian from prison
and the rest of the partnership from ruin and disgrace. “Honesty’s always the easiest
policy,” the partner concedes, “Could that be why men so often call it the best? . . . We
are not children, nor unable, nor without resource. . . . Be of good cheer, my friend. In
this business we are not licked, not by a long shot.”
9. Joseph Conrad, Lord Jim
A young merchant marine officer is on a ship, packed with sleeping pilgrims on
the Arabian Sea, when the ship hits a hidden obstacle. The other officers promptly
abandon ship. However, Jim is an honorable man and, despising the others for their
cowardice, he seems deaf to their entreaties that he, too, should jump into the lifeboat.
And then (as he later blurts out), “I had jumped . . . it seems.” Like his craven fellow
officers, he left the sleeping pilgrims to their fate.
Conrad’s narrator sits in the public gallery during the official inquiry into Jim’s
dereliction. (When they landed, his fellow officers did not hang around to face the
music.) The narrator is not sure why he goes there day after day; maybe he is trying to
understand why young Jim abandoned his principles.
Perhaps, unconsciously, I hoped I would find . . . some merciful explanation, . . . I hoped for the
impossible—for the laying of what is the most obstinate ghost of man’s creation, the uneasy
doubt uprising like a mist, secret and gnawing like a worm, and more chilling than the certitude of death—the doubt of the sovereign power enthroned in a fixed standard of conduct. It
is the hardest thing to stumble against; it is the thing that breeds yelling panics and good little
quiet villainies; it’s the true shadow of calamity.
“The doubt of the sovereign power enthroned in a fixed standard of conduct”—that
is what this novel bred in me. We pride ourselves on our autonomy; it is our special
dignity that we can give a law to ourselves and hold ourselves to a principle. But suppose no one can really count on his own steadfastness. Often, not exceptionally, people just randomly fail to do what is prescribed by the principles that, on every other
criterion, we know they hold dear. There is something humbling in that, something
that should remove the complacency from every moral inquiry. Call it “original sin”
or whatever: I have tried to approach moral questions in that spirit of misgiving.
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10. Max Weber, Economy and Society
I had better end with something other than a novel, because the books I am choosing
seem to represent a form of literary amoralism. I do not mean to espouse that at all,
but to choose books that try to dispel some of the illusions that accompany whatever
priggish self-satisfaction we think ourselves entitled to. Max Weber understood this in
his great peroration on politics as a domain, not of high-minded self-display, but the
morally compromised “strong and slow boring of hard boards.”9
Economy and Society10 is Weber’s great masterwork, an introduction to hundreds
of categories of social and political analysis and their logical and historical relationships—categories like authority, bureaucracy, domination, economy, family,
household, legitimacy, patrimony, religion, status, and, of course, law. H. L. A. Hart
famously described The Concept of Law as “an essay in descriptive sociology,” a characterization that excites much derision from working empirical sociologists. However, when one reads Economy and Society one sees what Hart meant. The first duty
of the sociologist is not to make generalization about humans in society but to give us
the terms and categories in which the possibilities of such generalizations might be
explored. True, Economy and Society is more historical in its structure than The Concept
of Law; there is nothing in the latter that corresponds to Weber’s theses of the supersession of patrimonialism or the emergence and triumph of bureaucratic rationality.
But Weber’s account of the emergence of law from custom has the feel of what Hart
was trying to do in The Concept of Law, and, of course, Weber’s own methodology of
verstehen had a considerable influence on Hart’s. Mostly, I read Weber for his conception of the state and of the distinctiveness—historical and conceptual—of the idea of
a political community. Weber is right that this is something that “has existed neither
everywhere nor always,” and we can learn a lot about it by understanding how the
tasks we almost reflexively assign to the state were performed in the past by institutions of quite a different type.
9
10
MAX WEBER, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 128 (H. H. Gerth & C. Wright Mills
eds., 1948).
MAX WEBER, ECONOMY AND SOCIETY (Guenther Roth & Claus Wittich eds., 1978) (1922).