Introduction: a circle of concepts: nature, custom, stipulation

Philosophical jurisprudence, from Plato to Hans Kelsen, rests upon three fundamental concepts of order and three allied concepts of law: the order intrinsic to human nature grounds the natural law, the order found in informal social practices grounds the customary law, and deliberately stipulated order grounds enacted law. As with many sets of foundational concepts, these are often defined or at least described in terms of each other. This set of analogies and disanalogies between nature, custom, and deliberate stipulation forms the deep structure of traditional philosophical jurisprudence: they are the conceptual lenses and tools by which philosophical analysis of law has proceeded. The history of philosophical jurisprudence reveals how rare it is to examine the lenses by which we see and the tools by which we dissect.

Sometimes customary habits are compared to natural instincts because they operate spontaneously, automatically, and tacitly. Custom here means a kind of second nature: our customary habits operate as unobtrusively as our breathing. In this sense, custom is like natural instinct except that it is learned in a particular social context. Yet custom is also described as a set of informal conventions, a set of practices of social coordination that arise from informal agreements without being imposed by enacted law. Custom here is an unwritten law: customary conventions differ from enacted conventions only by not being deliberately imposed.

Custom, in short, must be analyzed into two more basic notions: habit and convention.

A book on customary law, many modern lawyers might say, can have no relevance for them. And neither, many modern thinkers would echo, could it be of much interest. On many influential modern accounts, reliance on customary practices is a mark of inadequacy: acceptance of customs should be minimal and provisional since an unreflective attachment to customary ways of thinking is inimical both to practical thought and to political harmony. Modern societies and their legal systems depend not on enslavement to customary habits and laws but on reasoned principles and doctrines; customary laws grow up only where legislators have done a particularly poor job, leaving a need for elaborate statutory construction and legislative gap-filling. The more coherent and consistent a legal system, the less the need for such customary rules and practices: an interest in customary law reflects at worst what Jeremy Bentham called the ‘sinister’ interests of self-interested reactionaries, and at best the eccentric tastes of scholars, antiquarians and those purporting to be international lawyers who work in what, on such accounts, is really a lawless international world.

This brief chapter introduces the diverse views of customary law offered in this collection of essays, showing how, despite this diversity, the thirteen contributors are united in arguing that such rejections of the relevance of customary law are wrong.

INTRODUCTION: WHAT IS CIVIC EDUCATION?

A fierce debate about civic education in American public schools has erupted in response to the terrorist attacks of September 11, 2001. Many liberals and conservatives, though they disagree strongly about which civic virtues to teach, share the assumption that such education is an appropriate responsibility for public schools. They are wrong. Civic education aimed at civic virtue is at best ineffective; worse, it is often subversive of the moral purpose of schooling. Moreover, the attempt to impose these partisan conceptions of civic virtue on America's students violates the civic trust that underpins vibrant public schools.

Here is how the recent debate has unfolded and what we might learn from it. In response to demands from teachers about how to deal with the messy emotional, racial, religious, and political issues occasioned by the September 11 attack and its aftermath, the National Education Association (NEA) offers a Web site titled “Remember September 11.” The site is full of materials about how to counsel distressed students; how to place September 11 in some kind of historical, cultural, and international context; and what moral lessons might be drawn from the attack. These moral lessons range from “Remembering the Uniformed Heroes at the World Trade Center” to “Tolerance in Times of Trial.” Similarly, the National Council for Social Studies (NCSS) offers lesson plans for “9/11” on its Web site: these materials range from “The Bill of Rights” to “My Name is Osama,” the story of an Iraqi-American boy taunted by his peers because of his name and Muslim customs.

ARISTOTLE AND KANT IN DIALOGUE

For a long time, it seemed that Aristotelians and Kantians had little to say to each other. When Kant the moralist was known in the English-speaking world primarily from his Groundwork and his Critique of Practical Reason, Kant's conceptual vocabulary of “duty,” “law,” “maxim,” and “morality” appeared quite foreign to Aristotle's “virtue,” “end,” “good,” and “character.” Yet ever since philosopher Mary Gregor's Laws of Freedom, published in 1963, made Kant's The Metaphysics of Morals central to the interpretation of his ethical thought, it has become clear that such “Aristotelian” terms as virtue, end, good, happiness, and character are also central to Kant. Aristotelians and Kantians now see that they have plenty to say to each other, and they have gone from being adversaries to sharing a sometimes unprincipled urge to merge central aspects of Aristotle's and Kant's ethical thought.

I think the current dialogue between Aristotelians and Kantians can powerfully illuminate not just the interpretation of Aristotle's and Kant's texts, but also key questions in contemporary ethical theory. What implications do human nature and psychology have for practical reason? Are the moral virtues perfective of our nature or at odds with it? What is or ought to be the relation of the desires and the passions to reason in moral deliberation? To what extent can moral agents transcend their natural and acquired dispositions? This dialogue is most illuminating when its participants resist the temptations to perform either a summary execution or a hasty rapprochement.

Introduction: from Hayek to Aristotle

Philip Mirowski has shown us that neoclassical economic theory has incorporated some very dubious analogies to nineteenth-century energy physics; in addition, we have seen that economic theory of various schools has employed many analogies to biology. Indeed, the rhetoric of economics is highly promiscuous in its liaisons with the various natural sciences; my favorite example of this promiscuity is from the “Preface to the First German Edition” of Capital, where Marx makes a wanton metaphorical appeal to physics, chemistry, and biology in one breadth: He proposes to “lay bare the economic law of motion of modern society” and to prove “that the present society is no solid crystal, but an organism capable of change.”

The chapters in this volume have shown that few metaphorical appeals to nature will bear critical scrutiny and that all analogies will break down if pushed far enough. I hope to advance this deconstructive project by showing that there is an important logical difference between metaphor and analogy – a difference that makes metaphors obscure in a way that analogies are not. But my chief concern is not with demolition but with construction, for I believe that the ubiquitous appeals to nature in social theory suggest some important truths: If, as ecologists insist, human society is only a part of the whole of nature and if, as hermeneutics insists, all understanding moves in a circle from part to whole, then it follows that our knowledge of nature will play an important role in our knowledge of society, just as our knowledge of society will play a role in our knowledge of nature.