2.5 - O'Hagan,Timothy - Four Images of Community (en)

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Four Images of Community

Four Images of Community

by Timothy O'Hagan

Source:

PRAXIS International (PRAXIS International), issue: 2 / 1988, pages: 183-192, on www.ceeol.com.
http://www.ceeol.com/http://www.ceeol.com/http://www.ceeol.com/http://www.dibido.eu/bookdetails.aspx?bookID=c51d4ec3-66bd-4122-9449-de6dade71cc3http://www.ceeol.com/


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The characteristic form of the most advanced modern social order is that of theRechtsstaat, a more or less sovereign state made up of citizens who are unitedby abstract impersonal ties of recognition of the state as an authoritative sourceof power and who are endowed with a more or less extensive set of legal constitutional rights against the state. Within such an order the role of the communityseems to be minimal. Indeed, from two perspectives originating in 19th centurysocial thought the opposition between community and the Rechtsstaat is absolute.These perspectives can be labelled utopian and ideal-typical.In the utopian tradition critics ofmodernity have been hostile to the abstractionand formalism of the legal order and have often sought a contrasting model ofcommunity, as something concrete, integrated and immediate. In his early worksMarx described the loss of community and communal being (GemeinschaJt,Gemeinwesen) and later analysed the ways in which this alienation is expressedin the legal relations of formal equality and independence, masking substantiveinequality and dependence at the level of production. While rejecting any "yearningfor return" (zurUckzusehnen) ,1 Marx allowed no central role in his counter-visionfor a legal order based on rights and duties, nor did he abandon the thesis of ' 'denGegensatz des Kommunismus gegen das Recht sowohl als politisches und privatesals auch in seiner allgemeinen Form als Menschenrecht. "2 The young Marx'sapproach has been applied to the contemporary legal order by leftist critics likeBankowski and Mungham, who have envisaged its total replacement by an orderin which "man lives as a socialized being" without "blockages to living communally. "3 Conservative critics like Lord Denning have also deployed a communitarian vocabulary, reminiscent of Burke rather than of Marx, to stress thevalue of the common law, piecemeal, judge-centred and unfettered by abstractconstitutionalism, rooted in the customs and traditions of the people. 4In Ferdinand Tonnies' ideal-typical schema, Gesellschaft is the world ofparticular, restricted to social goals; distribution of social goods by competition;Hohfeldian rights and duties; a separation of the public and the private, the lawbeing concerned with utility and security, not with virtue. Gemeinschaft is thatof universal social goals; principles of distribution established by authority; anobjective conception of rights and duties; a relative merging of the public and theprivate, with a dominant conception of the virtuous life, enforced by law. 5Tonnies denied that there was "any condition of culture or society in which elementsof Gemeinschaft and . . . of Gesellschaft are not simultaneously present, that is,mixed [A]lthough Gemeinschaft . . . arrives at higher and nobler forms of humanrelations Gesellschaft is the essentially variable element which enhances culturebut also transforms it into civilization." 6 Furthermore, for Tonnies, bothGemeinschaft and Gesellschaft can take the form of either a relatively closed unionPraxis International 8:2 July 1988 02060-8448 $2.00


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184 Praxis International(Verbindung) or a relatively loose association (Bundnisverhaltnis). The resultingfour-fold schema is flexible and open in its ability to classify new, emergent formsof social order and law. In particular the idea of the Gesellschaft union, which"provides for the union of all with others," 7 would allow us to envisage featuresof the social Rechtsstaat. It would represent a break from the now untenablenaturalism of blood and soil and also from the authoritarianism of many gemeinschaftlich institutions, which it would replace with the "artificial" principles oflegal citizenship, rights and duties. But at same time it would make real thesocial content of the Rechtsstaatby public intervention in areas abandoned by thepresent order to the arbitrary play of the market.From these perspectives, then, the ideals (for the utopians) or pure forms (forthe sociologists) of community and individual rights are incompatible. They are

rooted in opposed social ontologies, opposed views of the relation between theright and the good. But Tonnies' "gesellschaftlich union" adumbrates a possible,if not yet embodied, model of a genuine pluralist community. 8The search for such a model has been at the centre of much recent writing inmoral, political and legal philosophy in the English speaking world. Building blockshave been uncovered bearing the names of Aristotle, Aquinas, Hegel, Wittgenstein,Gadamer, to be asembled into new edifices of a quasi-objective ethical order. Fromthe array ofmodels I shall touch an just four: John Finnis' community as it emerges

from a re-reading of the classic texts of natural law; John Rawls' "well-orderedsociety" as it interacts with his theory of justice; Ronald Dworkin's communityof legal interpreters; Robert Unger's "post-modernist" community as the dialecticalcounterpart of a model of human beings as embodied selves with passions.I. Community and Natural LawFor Hobbes, "there is no such Finis ultimus (utmost ayme,) nor summum Bonum,

(greatest Good,) as is spoken of in the Books of the old Morall Philosophers,"but rather "a restless desire for power after power, that ceaseth only in death. "9Can anything be rescued from "the old Morall Philosophers" as a legacy formodernity?For Aristotle koinonia is the shared, the social, as opposed to the private, theparticular. Thus families and households are forms of koinonia which togethermake up the highest form of koinonia, the city (polis): hence the definition of manas a social animal (politikon zoon). For Aristotle, since human beings are by nature

gregarious, not solitary, fitted to live in social groups, not isolated in Rousseau' sforest, and since the polis is the most comprehensive form of social organization,they are destined to live in poleis and be politikoi. 10 This major theme ofAristotle'sPolitics, the opposition of social vs. solitary, is not to be consigned to the museumof unreflective naivety. Since Hobbes, critics of natural law theorists of communityhave attacked their commitment to a philosophical anthropology on the groundsthat it is either empirically false or parochial and/or rooted in an unacceptableteleological metaphysics. Yet when we turn to Aristotle's texts themselves, thesecriticisms seem to relate more to a caricature than to reality. Far from being naivelyparochial, Aristotle's model of embodied, situated sociability looks to be a reflective

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Praxis International 185to certain sophists or that of a potentially wholly integrated being according toPlato's Republic. 1l It is in terms of his critique of the Republic that we can best:understand a second (minor) theme within Aristotle's Politics, the distinction, withinthe social, between the polis on the one hand and the legal/commercial transactionon the other. The former, for Aristotle, unlike the latter, is concerned with virtueand vice, aims at the common advantage. It involves the natural ties of kinship,but also the rational ties of choice: the choice of a form of living together(syzen) , 12 infused by a shared conception of a flourishing, "noble" life. ForAristotle, Plato's Republic was too much of a unity, for "a polis is by nature aplurality, consisting of individuals differing in kind," 13 defining the parametersof the common good within which countless private relationships can be established,transactions pursued. The second Aristotelian theme was taken up and developedwithin the context of modernity by Hegel in the distinction between Staat andburgerliche Gesellschaft.But if Aristotle's model is neither naive or unreflective nor "totalitarian," isit still rooted in a teleological metaphysics which illicitly attributes to human beingsallegedly natural functions or tendencies? Recent readings of the Ethics and thePolitics would disarm this criticism. In his seminal work Reason and Human Goodin Aristotle, J. M. Cooper has focused attention on Aristotle's conception ofeudaimonia which he has interepreted as "human flourishing. ' , 14 He has arguedthat" Aristotle does not stand with the teleologists, as is usually assumed . . . Foralthough he does hold that virtuous action is a means to eudaimonia. . .eudaimoniaitself is not specified independently of virtuous action . . . [A]lthough he agrees withKant in rejecting maximization schemes of all kinds in favor of a definitely structured life, he does not think ofmoral constraints themselves as imposed on personswithout regard for (and even despite) their own good . . . " 1 5 Cooper has stressedthat eudaimonia for Aristotle is "something complex, consisting ofmore than onetype of activity, something which the individual endowed with both moral andintellectual capacities develops for himself as 'a progressive articulation of theend itself." 16 While external goods contribute to a person's flourishing, the keyto eudaimonia lies within: 'to take intelligent and effective charge of one's ownlife is . . . to come to possess and exercise the virtues of character. ' , 17 Continuouswith the moral philosophy is a moral psychology concerning the formation of ourmoral character, in which the intellectual virtue of practical reasoning (phronesis)plays a key role. It is that which enables us to rank-order the things which aregood to us in life, even though Aristotle rules out abstraction or precision in givingrules to govern this irreducibly particular domain. 18Because of its specific theological context Aquinas' social philosophy is in someways more difficult than Aristotle's to adapt to contemporary secular society. Theappropriation of the Thomist legacy by official Scholasticism has constituted afurther philosophical barrier, one which John Finnis has been dismantling byreturning to the texts themselves. At the same time Aquinas developed Aristotle'sidea of the pluralist community with the greater precision of ROlnan law terminology, in particular the terminology of persons, both natural and artificial: "Thecommunity of the political order (communitas civitatis) is made up ofmany personsand the good of that community is achieved by the variety of actions of thosepersons. ' , 19 The idea of the common good is consistent with the fact that there is


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186 Praxis Internationalno automatic identity (but equally no automatic conflict) of interest between persons:"the common good is the goal of individual persons living in the community, asthe good of the whole is the good of each part. Yet the good of one individualperson is not the purpose of another. . . " 2 0 . The very theological context alsoenabled Aquinas to make explicit Aristotle's thought that, while human beingsare irreducibly social, there is a dimension of human existence which transcendsany particular social embodiment. Thus Aquinas writes: "A human being is notsubordinate to the political community entirely within his whole self and with allhe possesses and therefore it is not required that each of his acts should be wellor ill deserving within the political order. But all that a man is, all that he cando, and all that he has is within God's order; and therefore every good or badact deserves well or otherwise from God in accordance with its character." 21Community and individualism are thus not incompatible ideals within this naturallaw tradition, though in the classic texts the relation between the two lacks theprecision and specificity of modern' 'rights-talk." John Finnis has returned toAristotle and Aquinas to put at the centre of j u r i s p r u ~ e n c e the idea of the politicalcommunity as a comprehensive, though not exclusive, form of human flourishing.He has then applied that idea to the modern order by arguing that the modern"manifesto" conception of rights, far from being incompatible with the idea ofcommunity, should be understood as "a way of sketching the outlines ofthe commongood. "2 2 Finnis' order of presentation is significant: first the account of thediverse forms of human flourishing within a community, and then the account ofrights as the specification and concretization of the conditions under which thatflourishing may take place. Thus there are three advantages of modern "rightstalk": (1) it "rightly emphasizes equality, the truth that every human being is a locus

of flourishing which is to be considered with favour in him as much as in anybodyelse . . . ' '; (2) "it tends to undercut the calculations of the consequentialists . . . ";(3) "since rights must be and are referred to by name, modem rights-talk amplifiesthe undifferentiated reference to 'the common good' by providing a usefully detailedlisting of the various aspects of human flourishing and fundamental componentsof the way of life in community that tends to favour such flourishing in all. " 2 3Finnis had itemized life, knowledge, play, aesthetic experience, sociability, practicalreasonableness, religion, as "equally fundamental," "equally self-evident" formsof human good, objects of "incommensurable value" and held that "it is alwaysunreasonable to choose directly against any basic value." 24 This requirementyields "exceptionless or absolute human claim-rights - most obviously, the right notto have one's life taken directly as a means to any further end," and also the rights"not to be positively lied to, " "not to be condemned on knowingly false charges, ""not to be deprived of . . . one's procreative capacity" and "to be taken into respectful consideration in any assessment of what the common good requires." 25Although he highlights the novelty of "modern rights-talk," Finnis does notstress other specific features of the modern order which mark it out from itspredecessors. So, unlike the remaining thinkers we shall consider, he does notfocus on the particular tensions within the "liberal" political and legal order. Hisapproach suggests that those problems would be worked out with the aid of practicalreasonableness by persons of good will within a community relatively united by


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Praxis International 187hold that such a community or such a shared conception is impossible but theirwork focuses in different ways on the problematic nature of the relation betweenindividualism and community in the "liberal" order.2. Community in "Well-ordered Society"Since the first appearance of A Theory ofJustice in 1971 John Rawls has beenrefining, clarifying and, in a sense, relativizing its central thesis, without therebyaltering the central structure of the original theory. In its most recent version' 'thetwo principles of justice . . . read as follows: (1) Each person has an equal rightto a fully adequate scheme of basic rights and liberties, which scheme is compatible with a similar scheme for all. (2) Social and economic inequalities are to satisfytwo conditions: first, they must be attached to offices and positions open to allunder conditions of fair equality of opportunity; and second, they must be to thegreatest benefit of the least advantaged members of society. " 2 6 In the terminology of A Theory o f Justice the first principle has "lexical priority" over thesecond, so that' 'basic rights and liberties" cannot be sacrificed to social engineeringdesigned to promote greater egalitarianism. These two principles together comprisethe "political conception of justice to regulate the basic structure of society. ' '2 7

The relation between these two principles has already been subjected to lengthydiscussion and lies outside our concern. What is of interest in our context is afurther priority relation in Rawls' model, that of the right over the good: "Theconcept of justice is independent from and prior to the concept of goodness inthe sense that its principles limit the conceptions of the good which are permissible. ' '2 8 The multiplicity of conceptions of the good is taken as a given of"liberalism as a political doctrine," the existence of "many conflicting andincommensurable conceptions of the good each compatible with the full rationalityof 'human persons.'" 29 What could be the source of integration of a liberalsociety so conceived? Here the emphasis, if not the substance, of Rawls' thoughtseems to have shifted somewhat since 1972. A Theory of Justice contained anextended account of the elements of community, of a "well-ordered society." 30In that account Rawls drew heavily on Aristotle, as well as on contemporary workin educational psychology, to produce a deeply textured, rich picture of a "socialunion of social unions" within which "everyone's more private life is . . . a planwithin a plan, this superordinate plan being realized by the public institutions ofsociety. But this larger plan does not establish a dominant end . . . " 31 . LikeAristotle, Rawls alloted a key role to the family in the induction of the social virtueswithout which the just society cannot flourish. In the schema ofA Theory ofJusticethe interaction between the concept of justice, the' 'thin theory of good" accordingto which individuals' 'should try to secure their liberty and respect" and' 'requiremore rather than less of other primary goods," on the one hand, and the "ideaof social union" (community), on the other, is understood in instrumentalpsychological terms. 32 Given the priority of justice, the role of the community inall its Aristotelian variety is primarily to be a source of well-ordered motivationstowards the pursuit of justice. Rawls' critics33 have questioned the intelligibilityof the point of articulation between the two components, between the austerelyindividualistic conception ofjustice on the onehand and and the richly communitarian


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188 Praxis Internationalconception of the well-ordered society on the other. In what sense can the latterbe the approporiate social context for the former?In the works following A Theory of Justice Rawls has sought to answer thatcriticism in the following way. First, he has stressed that the original position isintended as an abstract-normative model. The properties attributed to its agentsdo not constitute a substantive (psychological, moral or metaphysical) "model ofman," of the sort assumed by traditional liberalism: autonomy in the Kantian versionor enlightened egotism in the version of political economy. For Rawls, in contrast,persons in the original position are endowed with just two capacities, "a capacityfor a sense of justice and a capacity for a conception of the good." 34 Second, hehas explicitly relativized the idea of justice as fairness to ' the public culture ofa constitutional democracy." 35 In the absence of a philosophical anthropologythat move becomes unavoidable. Third, he has highlighted the specificity of"liberalism as a political doctrine" as the site ofmultiple conceptions of the good,as opposed to the view attributed to Plato, Aristotle,.Augustine and Aquinas that"there is but one conception of the good. . . to be recognized by all persons, sofar as they are fully rationaL" 36 This allows for the pursuit of communitarianvalues within a liberal order, but not as the goal of such an order as a whole: "Thereis no reason why a well-ordered society should encourage primarily individualisticvalues . . . The basic liberties are not intended to keep persons in isolation fromone another . . . but to secure the right of free movement between associations andsmaller communities." 37 Fourth, he has thereby moved the problem of the"social unity and stability" 38 of the social order as a whole to the margin of theRawlsian investigation. The point of articulation between the two components,having lost any metaphysical grounding, appears yet more vulnerable. There remains"to be sure, one collective aim supported by state power for the whole well-orderedsociety, a just society wherein the common conception of justice is publicly recognized. "39 The problem of understanding "how social unity is possible given thehistorical conditions of a democratic society" is postponed to the last page ofRawls'most recent paper. Rawls envisages the answer to the problem in the idea of "amore or less stable overlapping consensus" according to which citizens "affirmone of three views, " either religious beliefs which "lead to aprinciple of toleration," or "a comprehensive liberal moral conception, such as those of Kant andMill, " or they affirm "justice as fairness not as a consequence of any wider doctrinebut as in itself sufficient to express values that normally outweigh whatever othervalues might oppose them . . . ". But as Rawls himself comments, "obviously allthis is highly speculative and raises questions which are little understood . . . "40 .Thus to the charge that he works from an illicit "model ofman" Rawls answersthat he works from no 'descriptive' or substantive model at all. That round ofthe debate Rawls has won. But it is now even clearer than it was before that theRawlsian community (more or less united in overlapping consensus) is only contingently linked to the conception of justice as fairness, "since doctrines whichpersist and gain adherents depend on social conditions," and justice as fairnessitself proceeds from "basic intuitive ideas found in the public culture of a constitutional democracy." 41 For all its richness the Theory ofJustice idea of a "f\Vell-ordered society is not designed, by the logic of the theory, to provide a point ofreference for assessing vexed political-legal questions within such a constitutional


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Praxis International 189democracy. Only the abstract formulation of justice as fairness itself is designedto perform that role. In its abstraction its answers may turn out to be unsatisfactory:either indeterminate or, if determinate, then tending to ignore important aspectsof our social being.3. The Community of Legal InterpretersHermeneutic jurisprudence focuses on judicial interpretation and the legalcommunity as the keys to our understanding of the nature and function of the law.In the master work of modern hermeneutics, Wahrheit und Methode, Gadamerwas skeptical about the status of "legal hermeneutics": "Dass die juristischeHermeneutik in den Problemzusammenhang einer allgemeinen Hermeneutik

gehort, ist keineswegs selbstverstandlich,' '42 for it may be that no actual societiesconstitute integrated interpretive communities and positive legal systems are tooopen to embody unified legal "texts." Less skeptical than Gadamer, Dworkin,in his recent work, has adopted a wholehearted hermeneutic approach to the law.According to this, at the heart of the legal community lie a text and interpretersof that text. The text is understood in a broad sense as a set of legal documentsand the body of the common law, taken both synchronically and diachronically.The interpreters are both professional (the judiciary) and lay (politicians, the public).But the community as a whole is united in its recognition both of the central textand of its professional interpreters. Cashing Dworkin's analogy with literature,just as the key literary figure for certain modernists is the interpretive critic, notthe original author, so for Dworkin the interpretive judge displaces the legislatoras the central figure of hermeneutic jurisprudence. Just as in Germany hermeneuticshas been handmaid (if not mistress) of Protestant theology, so now it is pressedinto the service of the secular religion of the USA, constitutionalism.Dworkin's judiciary aims, or should aim, for "constructive interpretation,"

"imposing a purpose on an object or practice in order to make it the best possibleexample of [its] form or genre." 43' This process is complex and dialectical,developing and improving itself over time, but always validated by standards whichare objective in the sense that they are part of the community's shared value-system,not a matter of personal taste, and at the same time curiously autonomous fromthe material physiological and psychological factors outlined in the philosophicalanthropologies of the natural law tradition, and only rather loosely related tosociological factors, particularly as understood in the marxist tradition (most subtly

t r a n ~ f o r m e d by Habermas)44 of theorizing the rearrangement of power relationswhich alone would allow the emergence of the desired community. The "hermeneutic circle" is closed for Dworkin within the given interpretive community,albeit a reflective self-improving community.Dworkin also argues that it is legitimate to personify a community in terms ofgroup responsibility. Just as in company law we start by assuming that a corporation has certain responsibilities to the public and then distribute "consequentliabilities or responsibilities to the relevant individuals" relative to "the overridinggroup responsibility," 45 so at the most comprehensive level "the idea of politicalintegrity personifies the community . . . because it assumes that the communitycan adopt and express and be faithful or unfaithful to principles of its own,


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190 Praxis Internationaldistinct from those of any of its officials or citizens as individuals." 46Dworkin's henneneutic insight is that all claims to amorejust society are made fromwithin a linguistic context or framework ofmeanings, in short from a community.This insight is focused on the contemporary legal cultures of the USA and theUK, in which he identifies the key right, underlying all other rights "to be takenseriously, " the right to equal concern and respect. He harnesses this insight toan unspoken confidence in historical progress, in the advance of the "language"of equal concern and respect to the status of universal language, marginalizingand de-legitimizing other "languages," and therewith the sub-communities, 'speaking" those "languages," incompatible with it.Dworkin's radical critics impugn the idea of the interpretive community, eitheron the implausible grounds that it is inherently conservative, or on the more plausiblegrounds that his particular brand of hermeneutics is over-optimistic in assumingthat the existence-conditions of a coherent interpretive community are already toa considerable degree satisfied within our own positive legal systems.47

4. Unger and the "Post-modernist" CommunityRadical theorists in the USA have used ideas of community both as tools ofclassification and as positive counter-models to the present order. In their debunking,

demystifying programme they have deployed elements both ofMarxist ideologycritique and of American legal realism. In their taxonomies they have drawn onthe sociological classics and on modern philosophy of law. Their counter-modelsare based on the American experience of pluralism, of social advocacy and ofcommunity politics, and on a deeper level of philosophical-psychological reflection. In this approach the ideal-typical and historicist moments of social theoryare not kept strictly separate.Some years ago Nonet and Selznick distinguished three different states of lawin-society: repressive, autonomous and responsive. 48 These they characterizedvariously as "different modalities of legal experience," as "generating differentforms of jurisprudence" (command theories, positivism, legal realism), and as,'stages of evolution in the relation of law to the political and social order." 49Their approach was dialectical in that they saw the "potential for legal development' , within the present autonomous law itself, stemming from the tension between"its capacity to restrain the authority of rulers and limit the obligations of citizens'and its and its fostering of a "rights-centered jurisprudence," which "contributesto the erosion of the rule of law" and leads to the development of "responsivelaw" and the rise of "social advocacy" in the USA. 50 This in turn would reinforce a new pluralism, which would dilute sovereignty into a "loose aggregateof public corporations" and bring about nothing less than the "withering-awayof the state." 51 With their vision of qualitatively different forms of pluralist,devolved community life, Nonet and Selznick combined incisive comment on legal,political and social processes in the USA with elements of utopian rhetoric.Unger's use of the terminology of community is richer and subtler. Whileexplicitly rejecting the "anti-modernist fantasies of communal integration," Unger


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Praxis International 191modern world as dominated by two antagonistic "principles": (a) the principleof freedom of contract, understood as a disguise for power relations and serving"unsentimental money-making," and (b) the counter-principle of community, whichattempts to prevent (a) from subverting "the communal aspects of social life. "But at this stage the opposition rests on an "impoverished conception of community. . . as the absence of conflict," consistent with "personalistic authority anddependence," characteristic of the family, or idealized into a world of "selflessdevotion."52 Second, in the "countervision" of the new order, the "sharp opposition" between contract and community as previously understood would begin todisappear, as the two principles would be transformed. In the transformation,community, in the absence of "inalterable relations of superiority and subordination," 53 would become "the zone of heightened mutual vulnerability' and oftrust. " 54 Such a community would be held together by a form of consensusmediated by reflection, which would be neither naively absolutist (as Unger seesAristotle) nor anarchically relativist (as Unger sees certain post-modernists). 55That in turn could be achieved only by persons whose emotions ('passions') enablethem to commit themselves to a struggle for egalitarianism and personal and social'empowerment. "56 At the heart of Unger's thought on community is the dialectical relationship between possible social structures (power relations) and possibleforms of affective life.Unger's work has been criticized for its "romantic pessimism" by Parsons,57and, in a similar, vein, by Finnis,58 for its improper polarization of principle andcounter-principle within the present order and its view that this order is impotentto reconcile its antagonisms from its own resources. But in its intellectual depthUnger's conception of community is unparalleled in modernist jurisprudence.

NOTES1. Karl Marx, Grundrisse der politischen Okonomie (Berlin 1953), 80.2. Karl Marx, F. Engels, Die deutsche Ideologie, Werke Bd. 3, (Berlin 1956), 190.3. Z. Bankowski, G. Mungham, Images of Law, (London, 1976), 31.4. Lord Denning, What Next in the Law (London, 1982).5. For more on Tonnies' sociology of law, see T. O'Hagan, The End o fLaw?, (Oxford, 1984),ch. 4.6. Ferdinand Tonnies, "On Sociology, Pure, Applied and Empirical", in Selected Writings,

eds. W. J. Cahnmann, R. Heberle (Chicago, 1971), 9-10 and 'Mein Verhaltnis zur Soziologie'in Soziologie von Heute: ein Symposium der Zeitschrijt jar Volkerpsychologie und Soziologle, ed.Richard Thurnwald, (Leipzig, 1932, 103-22).7. Ferdinand Tonnies, Ge,neinschaft und Gesellschaft (Darmstadt, 1959), 111.1.2.8. This idea is developed in O'Hagan, The End of Law?9. Hobbes, Leviathan, ch. 11.10. Aristotle, Politics, 1.1.11. ibid. ILL12. ibid. 111.5.13. ibid. 11. 1. 1261a23: "ou monon d'ek pleionon anthropon estin he polis, alIa kai ex eideidiapheronton' , .14. J. M. Cooper, Reason and Human Good in Aristotle, (Cambridge MA, 1975) ch. 2. Thetheme of human flourishing has been taken up and developed by Finnis.15. J. M. Cooper, Reason and Human Good in Aristotle, 87-8.16. ibid. 112.17. ibid. 125.


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192 Praxis International18. ibid. 132-4.19. Aquinas, Summa Theologiae, la2ae,96.1: "Constituitur enim communitas civitatis ex multispersonis, et ejus bonum per multiplices actiones procuratur;".20. ibid. 2a2ae.58.9: "bonum commune est finis singularum personarum in communitate

existentinum, sicut bonum totius finis est cujuslibet partium. Bonum autem unius personae non estfinis alterius."21. ibid. 1a2ae,21.4: "homo non ordinatur ad communitatem politicam secundum se toturn etsecunda omnia sua; et ideo non oportet quod quilibet ejus actus sit meritorius vel demeritorius perordinem ad communitatem politicam. Sed totum quod homo est, et quod potest et habet, ordinandumest ad Deum; et ideo omnis actus hominis bonus vel malus habet rationem meriti vel demeriti apudDeuffi, quantum est ex ipsa ratione actus."22. John Finnis, Natural Law and Natural Rights (Oxford, 1980), 214.23. ibid. 221.24. ibid. ch's 3 and 4.25. ibid. 225.26. John Rawls, "Justice as fairness: political not metaphysical", in Philosophy and Public Affairs,14.3 (1985), 227-8.27. ibid. 249.28. ibid.29. ibid. 248.30. John Rawls, A Theory of Justice, (London, 1972), chps. 8 and 9.31. ibid. 528.32. M. Sandel, Liberalism and the Limits of Justice (Cambridge, 1982), makes this distinction.33. In particular Sandel.34. Rawls, "Justice as fairness: political, not metaphysical", 234.35. ibid. 250.36. ibid. 248.37. John Rawls, "Fairness to goodness" , in Philosophical Review, 84 (1975), 550.38. Rawls, "Justice as fairness: political, not metaphysical", 248.39. Rawls, "Fairness to goodness", 550.40. Rawls, "Justice as fairness: political, not metaphysical", 250.41. ibid.42. H. G. Gadamer, Wahrheit und Methode, (Tiibingen, 1972), 488.43. Ronald Dworkin, Law's Empire, (London, 1986), 52.44. See O'Hagan, The End of Law?, 129, 160.45. Dworkin, ww's Empire, 171.46. ibid. 172.47. For this distinction see T. C. Grey, "Advice for Judge and Company", Review of Dworkin,Law's Empire, in New York Review of Books (12 March 1987).48. On Nonet and Selznick see O'Hagan, The End of Law?, 18-21.49. P. Nonet and P. Selznick, Law and Society in Transition: Toward Responsive Law, (NewYork, 1978), 14-5.50. ibid. 71.51. ibid. 102.52. Roberto Unger, "The critical legal studies movement" in Harvard Law Review 96 (1983),620-5.53. Roberto Unger, Passion: an Essay on Personality, (New York, 1984), 132.54. Unger, "The critical legal studies movement", 640-4.55. Unger, Passion: an Essay on Personality, 197.56. ibid. 13-4, 210.57. T. Parsons, Review ofUnger, 'Law inModern Society' , in Law and Society Review 12 (1977).58. J. Finnis, "On the 'Critical Legal Studies Movement", in American Journal o fJurisprudence,30 (1985).

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2.5 - O'Hagan,Timothy - Four Images of Community (en)