Macklem, “Law and Life in Common”

Several years ago, I stumbled on the philosopher Timothy Macklem’s book, Law and Life in CommonIndependence of Mind, one of whose chapters concerned the distinction between trust and faith in explaining the good of religious belief. Macklem drew a sharp division between the two: the former is subject to the constraint of “reason” while the latter, in Macklem’s view, is totally separated from “reason”–faith for Macklem is belief without any good reason for belief, or even without the possibility of any good reason for belief.

One can see the development of related themes in Professor Macklem’s (King’s College) new book, Law and Life in Common, just released by Oxford University Press. What is contained in the publisher’s description (below) are fairly ambitious claims about and desires for the persuasive force of law. And I wonder about the willingness of at least certain sorts of “arational” systems of persuasion to form the kind of partnership with law that he suggests are necessary for its capacity to build a common life.

We live in a moral world in which reasons come in different kinds, so that very often the claims of one reason upon us are no greater than the claims of some other reason. Yet the law, in its self-presentation and in theoretical accounts of it, proceeds as if its rational pull was conclusive, as if there were no sensible alternative to compliance with its terms. In itself that should not be surprising: each one of us very often acts as if the reasons that animate us were morally determinative, and indeed our actions may subsequently make that the case. Why should law operate in any other way? Yet we know that in truth reasons are usually not determinative of action, and while pretence to the contrary may not much matter in individual settings, it matters very much in the setting of the law.

The ability of the law to build a life in common, of whatever kind, is dependent on its ability to function as if its claims were pre-eminent rather than undefeated at best. If law is to succeed in its basic project of binding people to its aims, as it must, it is bound to convince us of the substance of its pretence by buttressing its necessarily limited rational claims with the pull of arational considerations. It needs partners, not only in the familiar prudential considerations that force gives rise to, but also in the beguilement that shared imaginings make possible. This book is an exploration of those partnerships, in principle and in their most important details. It seeks to describe the ways in which such practical workings of law are part of its nature.

Leave a Reply

%d bloggers like this: