JOSEPH RAZ was one of the most important and influential legal theorists of our time. Born in Mandate Palestine in 1939, Joseph died in London in May of this year. A memorial was held at Balliol College, Oxford on December 10th. I am no longer able to travel, but Joseph’s family kindly let me present these pre-recorded remarks at the event.
Joseph Raz and Les Green, at Balliol College 1984
In law and in life, it matters that people act ‘in good faith’. Bona fides varies in different contexts, but the main idea idea is that beliefs expressed are sincerely held as true or acceptable, and that cooperative actions are undertaken in a spirit of honesty. That sounds like a good thing. Sometimes it even excuses or mitigates conduct that would otherwise be wrong: ‘At least he was acting in good faith.’
The law of contract carries an implied covenant of good faith: the parties are held to a presumption that they deal honestly and fairly with each other, aiming for a mutually agreeable deal, not a plot to destroy someone. In employment law, one cannot refuse reasonable accommodations for workers with disabilities, though the fact that something is a ‘bona fide occupational requirement’—genuinely necessary to the job—will deflect a claim of discrimination. (An airline need not hire a blind pilot—not for now, anyway.)
But satisfying a principle of bona fides can be neutral, or even bad, in particular circumstances. Knowing that someone has said something, or done something, in good faith can make things worse.
Some things said by politicians are said in bad faith. Perhaps some Russians believe homosexuality is a Western import, that gay men prey on children, and that homosexuality is contagious. But I doubt Putin really believes that. He may be evil, but he is not stupid, as current leaders of the superpowers go. Putin says and supports these things only to pander to his ‘base’, thinking—perhaps rightly—that some of them believe it. But I think he knows it is all malarkey, and I will assume he came to know that in the right way for it to count as knowledge. Putin’s pandering is in bad faith; it is strategic, aimed not at sincerity or truth but at power. So we subtract moral marks for pandering and dishonesty, but not for being irresponsible in forming his beliefs. Putin knows the truth, and we can give him one mark for that.
Suppose, now, that that a western Lawyer campaigns against non-discrimination protections for gay people, resists teaching children about the variety of human sexual interests, and opposes same-sex marriage. He labours, not on behalf of a paying client, but intellectually and politically to keep gay people in their place. Still: he is not pandering. He is aware that his views stain him (in societies that aspire to any form of liberalism) as comical, even contemptible. There is hardly anyone left with such views to whom he might pander. But—I here assume—the beliefs on which he bases his views are not only manifestly false, but also that it is open to him to find that out. He just fails, as philosopher John Rawls puts it, to bear ‘the burdens of judgment.’ He does not eschew lively argument. Far from it–he is a model Millian controversialist. He knows how to assemble propositions into paragraphs that look a lot like arguments. Some even turn out to be valid (though not sound). He never insults or growls; he calmly explains and argues.
In my hypothetical, Putin gets a moral minus for monstrous conduct, but a modest plus for knowing the truth. Lawyer, however, gets two minuses. Like Putin, he promotes policies that are unjust and inhumane. Unlike Putin, he sincerely believes them, and in all bona fides. Putin grasps the truth but refuses to let it shape his conduct. Lawyer persists in falsehoods (a strict liability offence in this case) with complete sincerity. He acts in good faith, but here bona fides makes his character, and our world, not better but worse. If Lawyer were just a hack or a hired gun, we might care less. But he believes this stuff. Putin has a vice in his heart. Lawyer has a vice in his heart, and another in his head.
And so it is with some who believe: that blacks have failed to pull themselves up by their bootstraps, that the police preserve the rule of law, that vast concentrations of wealth trickle down to the greater benefit the poorest, that face masks poison us with carbon dioxide, and that COVID-19 will disappear like magic, one day this summer.
Odd as it must sound, I actually hope such folk know that all of this is false, and that they are just displaying their colours, taking the piss, or trying to grab a minute’s attention online. In that case, we may have something to work with. But I’m sometimes afraid that their beliefs and attitudes are sincere, and held in complete bona fides. If that is right, we are in big trouble.
A paper by a junior scholar greatly impressed me. I thought it should be published. A distinguished philosopher did not share my view: ‘It’s warmed-over Rawls,’ he wrote, in a curt letter of rejection.
Now, I could see for myself that the central claim of the paper wasn’t completely new. But it was, I thought, completely true. And its case for a familiar truth was different from—though not inconsistent with—other arguments to the same conclusion. So why the obsession with the new?
This misery has company elsewhere, including in the social sciences. I do not only mean that, when others try to replicate famous ‘findings’, they cannot get the same results. I mean that hardly anyone tries to replicate anything. You can see why. Replication is expensive and unoriginal. Editors do not fight over a paper that argues that the findings of an earlier paper are all correct. Hence, there is a high prior probability that a lot of what finds its way into print is rubbish. (And then that rubbish is cited, and the citations re-cited, by philosophers who want their work to be ‘continuous with’ the advanced social sciences.)
In the humanities we do not have the excuse that originality is cheaper than replication. Admittedly, some of our work is not truth-apt, and some that is truth-apt is not truth-oriented (for instance, because it is bullshit). But I imagine that most of us hope that our claims about things like justice or law are, if not true, then true-ish. Yet our collective behaviour reveals a strong preference for the new over the (merely) true.
In my own fields, the pursuit of novelty has bad effects: one can be pretty sure that the next general theory of law will be more daft than the last one. And in moral and political philosophy writers continually ‘discover’ principles that no one in the history of humanity ever heard of.
The novelty-fetish has further knock-on effects. It isn’t enough for ideas to be new; others need to acknowledge that they are new, so small novelties get over-emphasised, and the errors of past writers exaggerated. No longer are others merely mistaken, misguided, or muddled—their claims must be ‘ridiculous’, ‘disgraceful’, or ‘ludicrous’. These epithets have various meanings, but they have a common use. They are all ways of pleading, ‘Don’t read him! Read me, me, ME!’
Though not excusable, this is understandable. Most of us write for a serious audience of a few hundred, of whom maybe a couple of dozen actually engage our work. (Legal and political theorists who imagine they have ‘impact’ in the halls of power, or even literature, mostly live in a hall of mirrors.) To lose a few precious readers to the judgment that our work is warmed-over Rawls (or Mill, or Marx…) feels like an amputation without anaesthetic.
We need to get over that. David Hume exaggerated when he wrote of political philosophy that, ‘New discoveries are not to be expected in these matters.’ But he was not ridiculously, ludicrously, or disgracefully mistaken. Here as elsewhere, Hume was mostly right—though with some one-sided over-emphasis. And there was nothing new in that either.
SEMPER VIRIDIS 