Law, Philosophy, Political Philosophy, Politics, Social Philosophy

“I have called you friends…” (John 15:15)

I. Introduction

Among the many kinds of relations in which we find ourselves with other people, friendship seems to be one of the most familiar to us. After all, every man has some idea of what it is to be a friend, even if he himself may have none (or may consider himself to have none). We often characterize our associations with those around us in accordance with this idea, calling this man a friend while labeling others as mere colleagues or acquaintances.

Yet friendship hardly figures in our conception of politics, a phenomenon that binds us together into a single community. We suppose it to be confined to some “private” domain, kept away from the reach of politics. Any mention of friendship in a political context is associated with partiality, an unjust intermingling of private interests with public affairs.1 But this exclusion of friendship from political life is wholly unwarranted and finds its origins only in recent history.2

In his Nicomachean Ethics, Aristotle presents a very different account of friendship that gives it an integral role to play in the political community. Not only is friendship given a place in politics, but it is said to

hold cities together, and lawgivers to care more about it than justice; for concord seems to be something like friendship, and this is what they aim at most of all, while taking pains to eliminate civil conflict as something hostile.3

In short, friendship is recognized as the very foundation of the political, the guarantor of order and stability in the state.

But while according such a role to friendship may give it political significance, it still leaves room for privatization. Could the modern not accept the centrality of friendship to political community and still maintain that its sphere of influence is predominantly private? That is, what is there to prevent him from saying that friendship most directly concerns private relations, and that its relevance to politics is merely derived from the role that it plays in this realm (i.e., is merely second-order)?4 In what follows, I will show that this, too, is fundamentally mistaken. For friendship is the bond that holds both personal and civic relations together in a just political community.5

II. The Nature of Friendship

Before we can venture to uncover the role of friendship in politics, however, we must first ask what it is. What is friendship? What is the nature of this relation that allows us to pick out the elect whom we call our friends from among the mass of our everyday interactions? In Book VIII of his Ethics, Aristotle gives us a hint. He says that

[c]omplete friendship is that of good people, those who are alike in their virtue… Those who wish good things to a friend for his own sake are friends most of all, since they are disposed in this way towards each other because of what they are, not for any incidental reason.6

In other words, friendship in the fullest sense is the mutual wishing-well-to-another based on a genuine appreciation of who he is essentially (i.e., his character).7 If we are friends, and our friendship is complete, then I will want what is good for you, and you what is good for me, because we value each other for who we are as such. To this Aristotle contrasts incomplete friendship, in which people associate with a view to obtaining some personal benefit for themselves. Here, the primary motive for friendship is pleasure or advantage, not mutual respect for the other’s character. Aristotle writes:

[T]hose who love for utility are fond of the other because of what is good for themselves, and those who love for pleasure because of what is pleasant for themselves, not in so far as the person they love is who he is, but in so far as he is useful or pleasant.8

But do these considerations preclude those who associate with one another for pleasure or advantage from calling each other friends? No. For despite their failure to see past the other’s merely incidental characteristics, they still genuinely wish one another well. In this case, each friend sees the other in terms of the paradigm that defines their friendship. For example, a tutor sees his students as clients and treats them accordingly.9 As does every good teacher, he will wish them well and want what is best for them, but the object of his well-wishing will be determined by the nature of their relationship. That is, the tutor will wish good things to his students, but he will wish good things to them qua clients, not qua virtuous agents.10

But suppose he learns that one of his students was recently diagnosed with cancer. Surely he will then wish him well for his own sake, and not conceive of the object of his well-wishing as a mere client or, worse, a source of pecuniary gain (assuming that the tutor offers his services in exchange for some fee). This particular instance of well-wishing, however, must still occur within the paradigm of their relationship, which, as before, is one of advantage. Although the tutor can certainly wish his ill student well with a view to nothing else but the restoration of his health, their reason for associating with one another will remain the same. Hence, the object of his well-wishing will still be his student qua client, only now, the reason for wishing him well will transcend mere profit.

Generally speaking, all forms of incomplete friendship may be said to exhibit this characteristic: the friends will wish one another well, but only insofar as the nature of their relationship allows. Those who associate for pleasure will do this for the sake of the pleasant, and those who associate for advantage for the sake of the beneficial.11

Friendship, then, may be defined as that relation in which people wish one another well for the sake of some good. In complete friendship, that good will be the virtue of the other’s character, whereas in incomplete friendship, it will be either pleasure or advantage. Despite being incomplete, those who are bound together by the latter kind of friendship still have a legitimate claim to being friends, as they really do wish each other well. By virtue of this, their friendship resembles that of the complete kind, but it also falls short of it due to its dependence on merely incidental factors. As David Riesbeck has pointed out in his discussion of Aristotle,

[c]omplete friendship is … friendship in the primary and chief sense; the others are friendships only because and insofar as they resemble complete friendship… [T]he nonprimary forms are friendships to a lesser degree, and features that are characteristic of complete friendship vary among the other forms by degrees.12

III. Friendship, Community, and Justice

At this point, it should be noted that friends associate with a view to achieving a common goal. To see this more clearly, let us once again consider the nature of friendship. So far we have spoken of friendship as a relation involving two or more people. And this relation was said to be characterized by the good for the sake of which its members wish one another well, namely, pleasure, advantage, or virtue of character.

From this it follows that every friendship has some purpose, as the good at the center of the mutual well-wishing of friends constitutes their reason for coming together. By implication, then, people who are joined together by friendship must share an end at which they all aim, which, as we have seen, will be the good for the sake of which they wish each other well. A relation in which people are bound together by the pursuit of different ends is not properly called a friendship but rather an exchange partnership.

To use Aristotle’s example, “[a] lover [who] loves the beloved for pleasure, and [a] beloved [who] loves the lover for utility”13 are not friends but rather exchange partners who render different services unto one another. (The lover benefits his beloved in return for pleasure, and the beloved pleases his lover in return for some benefit). This kind of association is particularly unstable and prone to dissolution, as the lack of a shared end allows one party to benefit while the other remains dissatisfied. This is what Aristotle means when he says that

if one wished for enjoyment, the other gain, and one has what he wants, while the other does not, things are not well with their partnership.14

Now, if friends wish one another well for the sake of some shared good, and this good supplies the motive for their association, they must be engaged in a common pursuit. For without a shared purpose, there would be nothing to bind them together. In short, friendship is a kind of community in which the members cooperate to realize their shared interests. These may be said to constitute the common good, the end for the sake of which the community exists. From this we see that where there are friends, there will also be community. Friendship and community are inseparable, hence Aristotle’s remark that

[t]he extent of … community is the extent of friendship… The proverb, ‘What friends have they have in common’, is correct, since friendship is based on community.15

In every community, a set of normative standards is necessary to facilitate cooperation among its members in their pursuit of shared ends. Because the community exists for the sake of the common good, it must be governed by rules that are conducive to its preservation. If such rules were absent, genuine cooperation would be impossible, and hence the community would fail to perform its function. Put simply, justice is necessary for the proper conduct of communal affairs. In his Aristotle on Political Community (2016), Riesbeck writes:

[E]very community necessarily requires some standards of fairness to govern the interactions between its members[,] and … these standards must be such that the members can regard themselves as, on the whole, benefiting from their participation in the community rather than being harmed.16

On this account, justice and community are co-extensive. In order for a community to exist at all, it must rest upon a shared set of principles for determining what is just and unjust.

Here, one might object that justice need only obtain in a certain kind of community, and that communal relations can exist even where injustice is widespread. This is precisely the view of Andrew Mason, who distinguishes between what he calls “the ordinary and moralized concepts of community” in order to argue for this point.17 According to him,

[a] group of people might count as a community in the ordinary sense but not the moralized sense. They might share values and a way of life, identify with the group and its practices, and regard each other as members, whilst systematically exploiting one another.18

As we have seen, however, a community is a group of people who cooperate in order to achieve a shared goal. To cooperate is to act in accordance with mutually recognized conditions that set limits to permissible behavior in one’s dealings with another. Hence, a “community” founded on the systematic exploitation of some of its members cannot possibly be a community in the genuine sense, as there is little cooperation to be had in such a framework. While no community will consist solely of just members, a set of standards must at least be in place to deal with possible deviants. Systematic exploitation, however, implies that the system itself is unjust and so cannot exist in a genuinely cooperative community.

Since friendship is a kind of community in which the members wish one another well for the sake of some good, it must be governed by norms belonging to a shared conception of justice. In fact, the mutual well-wishing of friends is constitutive of justice, as it consists in doing right by another in a cooperative relation with him. To use Michael Thompson’s terminology, the reciprocation of goods among friends is what constitutes the bipolarity of justice in the moral community.19 Every community is guided by a set of normative principles, and these in turn are grounded on the reciprocity of friendship. This is why Aristotle says that

[t]o inquire how one should relate to a friend is to inquire about a sort of justice; for … quite generally, all justice is in relation to a friend, since justice exists among particular people who share something in common…20

Insofar as one belongs to a community, he will be in a moral relation with other people, who, by virtue of wishing him well in cooperating with him, are his friends. Riesbeck explains:

Friendship exists wherever there is a … mutually acknowledged wishing of goods among separate individuals. [T]o the extent that people cooperate in sharing goods in common, and therefore accept some standards of fairness in their interactions, they thereby wish goods to each other.21

Here we note that such a relation finds its most concrete realization in the political community. For it tasks itself with arranging its laws and institutions such that its members can cooperate with one another in achieving their ends. In order to live together under a common institutional framework, people must be willing to recognize certain standards of justice, and this in turn will require the maintenance of friendly relations between them.

Hence, the role of friendship in the polity is not derived from some exclusively “private” domain but is rather at the front and center of civic life. In the absence of friendship and the just relations it produces, the polity would cease to exist. While citizens who have no personal dealings with each other may fall short of the complete friendship found among private relations, they are still bound together by a form of civic friendship on the level of the polity. And so Aristotle writes:

[A] city is said to be in concord when people agree about what is beneficial, rationally choose the same things, and carry out common resolutions. … Concord, then, seems to be political friendship, … since it is concerned with what benefits people and what affects their lives.22

IV. The Impersonality of Civic Friendship

The lack of personal interaction among many citizens in the polity may seem to pose a problem for civic friendship. Indeed, it is difficult to conceive of a friendship in which some of the friends have no personal relations with one another. People who call each other friends are typically bound together by some degree of intimacy and engage with one another directly on a regular basis. So that civic friendship may not appear to be friendship at all but rather mere cordiality or goodwill between fellow citizens.

This, however, is an unfounded concern, as civic friendship does not require that citizens share ties of closeness with one another. Recall that in a political community, citizens must cooperate with one another under a common framework of laws and institutions. And this will be structured around a shared conception of justice that specifies certain norms concerning interpersonal relations. In respecting those norms (which find their concrete expression in the law) in their dealings with one another, they will treat each other justly and thereby wish one another well qua citizens. In other words, they will each do right by another with a view to upholding what is just (and lawful) and thus wish goods to him on the level of the polity.

Now we ask: What is friendship other than a mutual well-wishing between people who cooperate for the sake of some good? Is a friend not someone who wishes us well because he perceives in us a good that we too perceive in him (and that is also the cause of our wishing well to him)?23 And do citizens not choose to live together because they see in each other a good that can only be obtained in the political community, a good that constitutes what might be called their civic character? This good is that for the sake of which they cooperate under a common framework of laws and institutions, and in so doing they wish one another well in a shared political context.

So we see that civic friendship is not at all undermined by the lack of familiarity between distant citizens. Rather, just by virtue of sharing the norms (and laws) of a political community and obeying them in their dealings with one another, they wish each other well as civic friends. True, a merely civic friendship will not be of the kind found among complete friends,24 but it does concern itself with the character of the friends qua citizens and so has a legitimate claim to being friendship by resemblance.25 As John Cooper has pointed out in his Political Animals and Civic Friendship (1993),

in a city animated by civic friendship each citizen has a certain measure of interest in and concern for the well-being of each other citizen just because the other is a fellow-citizen. Civic friendship makes fellow-citizens’ well-being matter to one another, simply as such.26

But what if some of the citizens not only lack ties of closeness to one another but also consider each other enemies? Will there not be private enmities in even the most well-formed political community? Surely civic friendship cannot exist between people who refuse to associate with one another in their personal lives, let alone cooperate in public affairs. Do we then mean to suggest that civic friendship is possible only where there are no personal conflicts, and if so, have we not restricted its scope to such an extent that it can play no significant role in ensuring concord between citizens?

This apparent problem is resolved by the fact that even personal enemies can be civic friends. Being a kind of incomplete friendship (or friendship by resemblance), civic friendship can admit of animosity between the friends without thereby dissolving the relation in which they share.

For example, consider another type of incomplete friendship: a business partnership. Here, the business partners will associate with a view to, say, maximizing the profitability of their business, and establish terms of agreement specifying each party’s obligation(s) in this arrangement. In cooperating under these conditions, they will wish one another well qua business partners and share in the good of whatever profit results from their common endeavor.

Since the motive for their relationship is mere profit, they need not have any concern for one another’s character (as such) insofar as this has no bearing on their ability to do business with each other.27 In fact, they could dislike each other as persons and yet still choose to maintain their relationship because of the benefit obtained from it. So long as the expectation of profit is met, they will continue to associate and wish each other well qua business partners despite not finding one another good as such.28

Likewise, personal enmity between citizens need not dissolve civic friendship so long as they continue to uphold and have an interest in the good for the sake of which they came together. (This good is what constitutes their civic character and so is what they value in one another as citizens). In order to obtain this good, as we have seen, they will have to cooperate under norms determined by a shared conception of justice, whose concrete expression will be found in the law (of the political community). So that in observing the law and participating in the relations that emerge therefrom, they will treat each other justly and thereby wish one another well qua fellow citizens.

In this way, the law (and the norms embodied therein) is a kind of guarantor of civic friendship in the political community. Simply by acting in accordance with it, citizens, regardless of whatever ill feelings they might harbor towards one another in private, wish goods to each other in public and thereby recognize one another as civic friends.29

V. On Analytical Positivism

The perspective on law so far developed, which treats it as a byproduct of cooperation, has faced much challenge from the school of analytical (legal) positivism. According to this tradition, law is a set of “posited” rules that emanate from the decrees of a legislative authority. It is not the concrete expression of norms that find their place in cooperative relations but rather a system of conventional rules handed down by a governing body.

In his The Morality of Law (1964), Lon Fuller summarizes the positivist doctrine as follows:

[A]nalytical positivis[m] sees law as a one-way projection of authority, emanating from an authorized source and imposing itself on the citizen.30

The analytical positivist holds that law is an outside constraint, extraneous to interpersonal relations, if you will, that is established for the purpose of regulating conduct and then levied upon the members of the political community.31

On this account, law does not emerge from cooperation between citizens. Rather, it merely acts upon them in their dealings with each other. In other words, legal norms are said to constitute an exogenous condition within the bounds of which people coordinate their activities.32 The role of the lawgiver (or legislator) is simply to supply that condition and enforce it using the power of the state.

As Fuller has pointed out, this view is attributable to a unidirectional (or, as Thompson would put it, unipolar) conception of human interaction. It rests on the belief that every social relation can be cast in terms of a framework where a subject projects his actions onto a passive object (hence the view that law is a unilateral projection of the lawgiver onto the citizen).33

Where relations of right are concerned, this gives rise to what Thompson has called a monadic conception of justice, according to which justice is not the reciprocation of fair treatment but rather unilateral action in accordance with a moral requirement. In his discussion of H.L.A. Hart, one of the most prominent exponents of analytical positivism, Thompson writes:

On [Hart’s] account, … a moral duty ‘to’ someone, in the sense that interests us, is … held itself to be a merely monadic duty, or a moral requirement, period. [T]his monadic duty is responsive to, or dependent on, the choice, will, or consent of the one to whom we thereby declare the duty to be directed.34

When applied to law, therefore, this view of justice yields, to use Fuller’s terminology, a managerial conception of legal relations; the law is held to merely prescribe a set of duties which citizens then carry out in their interactions with one another.35 Hence, for the analytical positivist, the maintenance of justice between citizens is a function of command, not of civic friendship. The reciprocation of goods that we have said to be constitutive of justice is nowhere to be found in his account of the political community.

The error of analytical positivism is best seen by examining the role of law in the political community. Let us recall that a community is a group of people who cooperate to achieve their common good. For this, as we have seen, they must coordinate their efforts under a shared framework of rules, which, in the domain of politics, will be embodied in the legal system. These rules constitute their shared criteria for justice and so delimit what is (and is not) permissible in their dealings with each other.

Accordingly, the purpose of law is to regulate the interactions that occur between citizens in order to establish a common basis of cooperation in the political community. In so doing, it puts them in a common moral relation (what Thompson has called a dikaiological nexus)36 and thereby lays the groundwork for civic friendship.

Now, it should be noted here that analytical positivism completely neglects the cooperative nature of law. For it rests on a unidirectional (or unipolar) conception of human interaction. And this gives rise to a managerial conception of legal relations, wherein justice is the one-way fulfillment of a duty to someone in accordance with an external requirement set by the legislative authority. (In other words, justice is treated as the mere implementation of legal norms with respect to another person on the part of the law-abiding citizen).

Analytical positivism, then, does not conceive of law as being primarily concerned with the relations between citizens. Rather, it gives a different role to law, one in which it supervises the citizen and prescribes duties for him to carry out in his interactions with others.37 To put it succinctly, positivist law, in contrast to cooperative law, deals with citizens qua subordinates and so focuses more on how they interact with authority than it does on their relations with each other.38 Insofar as the citizen plays any role in the positivist schema, he merely figures as the matter on which the force of law acts.39 Fuller writes:

The directives of a managerial system regulate primarily the relations between the subordinate and his superior and only collaterally the relations of the subordinate with third persons. The rules of a [cooperative] legal system, on the other hand, normally serve the primary purpose of setting the citizen’s relations with other citizens and only in a collateral manner his relations with the seat of authority from which the rules proceed.40

In general, where people cooperate for the sake of some good, the rules that regulate social conduct must bind them together in a normative relationship (wherein one wishes another well qua moral agent by treating him justly). If those rules do not relate them to each other but rather serve to subject them to an outside authority, what exists is properly called a command relation, not a genuine community. It should therefore come to us as no surprise that analytical positivism accords little if any significance to civic friendship. Upon reflection, what the positivist has in mind turns out not to be a community at all.41

VI. Conclusion

The foregoing discussion began with the question: What is friendship? Following Aristotle, we have defined this relation as that in which people wish one another well for the sake of some good. Those who are friends in the incomplete sense do so for pleasure or advantage, and those whose friendship is complete for the virtue of the other’s character (i.e., the virtue of who he is as such).

On these grounds, we have observed that friendship is a kind of community, as it consists in a joint pursuit of shared interests. And where people cooperate with a view to obtaining some good, they must recognize certain standards that determine what is just and unjust in their dealings with each other. Hence, as we have seen, friendship and justice are co-extensive; the reciprocation of goods among friends is what constitutes justice in every interpersonal relation. (To wish goods to another is to treat him justly, and to do right by another is to wish goods to him).

Since citizens engage in cooperation for the sake of their common good, which can only be achieved in a shared political context, they are bound by a set of rules that are embodied in the law. And in allowing the law to regulate their social interactions, they wish one another well qua citizens in a common moral relation. We have therefore concluded that friendship is at the front and center of the political community. For not only does it hold together immediate social relations, but it also maintains concord between citizens in the form of civic friendship.

  1. See Schwarzenbach, “On Civic Friendship,” n. 17, for a discussion of what she calls “friendship politics.”
  2. Ibid., pp. 108-11. Schwarzenbach writes: “[Political friendship] tends to be conflated with the phenomenon of ‘personal friendship,’ with that of a highly partial ‘friendship politics’… [T]here are certain well-known–one might call them momentous developments of the modern state—which … appear … to justify the rejection of political friendship in modern times” (my emphasis). Schwarzenbach goes on to list the Reformation and the doctrine of individual rights as factors that have contributed to what might be called the privatization of friendship.
  3. Aristotle, and Reeve C. D. C. Nicomachean Ethics. Indianapolis: Hackett Publishing Company, 2014, 1155a23-6.
  4. Another way to put the objection is as follows: Friendship may be said to have political significance only insofar as it allows for the maintenance of social relations in the private sphere (and thus provides a foundation for order and stability in the state); otherwise, it plays no significant role in the political community itself.
  5. The terms “politics” and “political” will henceforth be used in a historically neutral sense (i.e., no pre-conceived notion of politics, either pre-modern or modern, will be assumed in our use of these terms). A comparison of the different conceptions of politics which have appeared throughout history is beyond the scope of this paper.
  6. Ibid., 1156b7-11, my emphasis.
  7. See Whiting, “Aristotle’s Function Argument: A Defense,” pp. 37, 44. Whiting writes: “Aristotle thinks that only virtuous friends wish weIl to one another for the other’s own sake. They do so because they wish weIl to one another for the sake of what each is essentially…” (my emphasis).
  8. Aristotle, and Reeve C. D. C. Nicomachean Ethics. Indianapolis: Hackett Publishing Company, 2014, 1156a14-7.
  9. There are, of course, tutors who see their students as more than mere clients. Insofar as their relationship is not for pleasure or advantage, however, it falls under complete friendship, which is not what concerns us here.
  10. Again, this will not be true in cases where the tutor and his students are friends in the complete sense.
  11. For this argument I am indebted to Nehamas, “Aristotelian Philia: Modern Friendship?.” Nehamas writes: “[I]f I wish my barber, Tomas, well in so far as he is beneficial to me, I also wish him well for the sake of the beneficial Tomas, or simply on account of the beneficial, which is an accidental feature of his. … [There is a] difference between wishing you well for your own sake and wishing you well simply for your sake” (emphasis in original).
  12. Riesbeck, David J. Aristotle on Political Community. Cambridge, England: Cambridge University Press, 2016, p. 63, my emphasis.
  13. Aristotle, and Reeve C. D. C. Nicomachean Ethics. Indianapolis: Hackett Publishing Company, 2014, 1164a6-7.
  14. Ibid., 1164a18-20.
  15. Ibid., 1159b31-3, my emphasis.
  16. Riesbeck, David J. Aristotle on Political Community. Cambridge, England: Cambridge University Press, 2016, p. 90.
  17. Mason, Andrew. Community, Solidarity, and Belonging: Levels of Community and Their Normative Significance. Cambridge: Cambridge University Press, 2000, p. 30.
  18. Ibid., p. 30.
  19. For a detailed exposition of normative bipolarity and its relation to the moral community, see Thompson, “What Is It to Wrong Someone? A Puzzle About Justice,” esp. p. 374. Thompson writes: “[T]he order of ‘true justice’ … must be linked indirectly to some specific manifold of persons… [T]he elements of this manifold are the true or equally real persons, and … together they constitute what is called the moral community…”
  20. Aristotle, Eudemian Ethics, as cited in Riesbeck, Aristotle on Political Community, p. 58, my emphasis.
  21. Riesbeck, David J. Aristotle on Political Community. Cambridge, England: Cambridge University Press, 2016, p. 91.
  22. Aristotle, and Reeve C. D. C. Nicomachean Ethics. Indianapolis: Hackett Publishing Company, 2014, 1167a27-b5, my emphasis.
  23. For an excellent discussion of the common perception that is characteristic of friendship, see Pakaluk, Aristotle’s Nicomachean Ethics: An Introduction, Ch. 9, esp. pp. 260, 279-85. Pakaluk writes: “[T]o ‘spend time’ with a friend amounts to a kind of mutual sharing in perception and thought. Friendship … finds its greatest fulfillment when friends are thinking about the same truths, and each recognizes that the other thinks the same as he, and each recognizes that each recognizes this.”
  24. Recall our definition of complete friendship as “the mutual wishing-well-to-another based on a genuine appreciation of who he is essentially (i.e., his character).”
  25. See the discussion of friendship by resemblance (or incomplete friendship) in § II.
  26. Cooper, John M. “15. Political Animals and Civic Friendship.” Friendship, 1993, 303–26. https://doi.org/10.7591/9781501741104-017, p. 371 (emphasis in original).
  27. Of course, no one will choose to do business with a fraud. The concern here expressed for his character, however, is purely instrumental, as it is not him or the kind of person he is that we care about but rather our not being cheated or treated unfairly.
  28. For a similar example, see Pakaluk, Aristotle’s Nicomachean Ethics: An Introduction, Ch. 9, p. 267. Pakaluk writes: “[C]onsider a case where B contributes to A’s good – that is, B is useful to A – and yet B is not good and is not regarded by A as such: for instance, A is a writer who needs to have her works edited; B is a good editor; but B is not a particularly good person. In this case, A maintains a relationship with B, then, because of B’s usefulness” (emphasis in original).
  29. The conception of law here developed accords it a role similar to that of what John Rawls has called “public reason.” For both provide a shared basis of cooperation between otherwise hostile or antagonistic members of the political community. In fact, the fundamental principles of law might be said to constitute the public reason of the political community. Unlike Rawlsian public reason, however, our account of the law does not presuppose any kind of political liberalism. The civic friendship described above could very well exist in an illiberal political community (such as those of medieval Europe). For an extensive treatment of public reason, see Rawls, “The Idea of Public Reason Revisited.”
  30. Fuller, Lon L. The Morality of Law. Revised Edition. (Second Printing.). New Haven & London: Yale University Press, 1969, p. 192.
  31. It is true that law is held to be an external constraint on social behavior in even our account of the political community. There, however, law is understood to emerge from the norms already implicit in cooperation (between citizens) rather than unilaterally imposed by an external authority.
  32. Conversely, we might say that law in our account is an endogenous outcome of social cooperation.
  33. Ibid., pp. 193-5. Fuller likens the role the analytical positivist accords the lawgiver to that of “a surgeon operating on an anesthetized [patient].”
  34. Thompson, Michael. “What Is It to Wrong Someone?: A Puzzle About Justice.” Toronto: Faculty of Law, University of Toronto, 2003, p. 345.
  35. See Fuller, The Morality of Law, p. 207. Fuller writes: “The directives issued in a managerial context are applied by the subordinate in order to serve a purpose set by his superior” (emphasis in original).
  36. See Thompson, “What Is It to Wrong Someone? A Puzzle About Justice,” esp. §§ 1, 4, 6.
  37. These include negative duties such as the duty to not kill or steal from one’s neighbor.
  38. Unlike cooperative law, which exhibits what might be called the horizontality of social cooperation, positivist law is marked by the verticality of the relations to which it gives rise.
  39. Criminal law is often cited as the paradigm case of such “monadic deonticity.” For a discussion of criminal law, see Thompson, “What Is It to Wrong Someone? A Puzzle About Justice,” p. 344. Thompson writes: “The zone in which juridical institutions paradigmatically generate merely monadic deonticity … is … criminal law… The verdict of the jury, ‘Guilty!’, expresses a property of one agent, not a relation of agents. If another agent comes into the matter—if there is, as we say, a ‘victim’—it is … as raw material in respect of which one might do wrong” (emphasis in original).
  40. Fuller, Lon L. The Morality of Law. Revised Edition. (Second Printing.). New Haven & London: Yale University Press, 1969, pp. 207-8.
  41. Max Weber is thus mistaken in calling the modern state, which he characterizes as “a relation of men dominating men, a relation supported by means of legitimate (i.e., considered to be legitimate) violence,” a “human community…” (Weber 1919, 1, 2, my emphasis).  For in the Weberian state, law is nothing more than an instrument of coercion by which citizens are forced to carry out certain duties in their dealings with each other. For a more in-depth discussion of the modern state, see Weber, Politics as a Vocation (1919), esp. pp. 1-5.