In On human conduct, Michael Oakeshott aims to elaborate a concept of human conduct to be distinct from a mere human behavior. Conduct is not a genetic impulse, an organic will or physiological need. Conduct is an exhibition of intelligence: it is the response, by an agent, to a contingent situation related to an imagined and wished-for outcome. The agent inhabits a world composed entirely of understandings, and the world is what he understands it to be. Further, conduct postulates an agent whose situation is what he understands it to be; each understanding invites him to act, choosing among many possibilities that action he considers the most appropriate response for a contingent situation.
In this meaning, the agent is considered free. “Not because his situation is alterable by an act of unconstrained ‘will’ but because it is an understood situation and because doing is an intelligent engagement” 1. In virtue of an agent being a reflective consciousness (in other words, his own understanding of his situation, what it means to him), his actions and utterances are the outcomes of what he understands his situation to be, and that this understanding cannot be reduced to any external condition. It does not exclude him for giving reasons for his choices, but his freedom does not depend upon his actions being rational or successful. It entails only the recognition of doing as an intelligent engagement, action linked with learned and understood belief.
All actions and choices are both formally and substantially specific. The substance of an action is a performance in which I seek to achieve a satisfaction. The form of an action is the manner in which I do it, is the action in respect of its acknowledgment of a procedure. This procedure Oakeshott called a practice. A practice “may be identified as a set of considerations, manners, uses, observances, customs, standards, canons, maxims, principles, rules, and offices specifying useful procedures or denoting obligations or duties which relate to human actions and utterances”2 . They neither identify nor entail substantive choices or performances, but just announce adverbial considerations to be subscribed to in choosing and doing.
A practice is independent of natural human instincts or sentiments, appearing more as an artifice to facilitate choices without determining them. Oakeshott distinguishes between two kinds of practice. A moral practice, or non-instrumental practice, may be identified as a practice without any extrinsic purpose; it is concerned with good and bad conduct, and not with performances in respect of their outcomes. A morality is neither a system of general principles nor a code of rules. According to Oakeshott, the character of a moral practice is the best expressed in terms of an art or a way of living, a learned language. “General principles and even rules may be elicited from it, but (like other languages) it is not the creation of grammarians; it is made by speakers”3 . By contrast, a prudential or instrumental practice is concerned with the achievement of the ends they are designed to promote. It is a practice of convenience or utility designed to promote the transactions and enterprises it governs.
Human conduct, then, is agents disclosing and enacting themselves in responding to their understood contingent situations by choosing what they shall do or say, “in the exercise of chosen sentiments, and in terms of a multiplicity of arts and practices presided over by a practice of moral conduct and perhaps a religious faith”4 . Those practices are to be understood as a collected, not a collective achievement. Human conduct is continuously “social” only in respect of agents being associated in terms of their understanding and enjoyment of specific practices.
There are basically two modes in which the agents may be associated. He calls these two modes “enterprise association” (universitas) and “civil association” (societas).
Enterprise association is a substantive relation, where the agents are related to achieve some goal or predetermined plan. It is a relationship of bargainers and from it emerge whatever substantive satisfactions are from time to time enjoyed. The rules that occur within the enterprise association are managerial commands which are legitimate insofar as they help to achieve the common purpose.
The civil association is a formal relationship, that is, association in respect of a common language and not in respect of having the same beliefs, purposes, interest, etc. The individuals are not partners in an enterprise with a common purpose to pursue or a common interest to promote. They are related in terms of a practice, specifically a moral practice (non-instrumental) and not a prudential practice.
It is important to emphasize that civil association is an example of a moral relationship, among many others. But the difference between civil association and a moral practice as it is ordinarily understood is that in civil association rules are made explicit. In a moral practice it might have moral theorists who make rules explicit or in relation to a spoken language it might have grammarians who identify the rules of the language—but the practice is not dependent on making these rules explicit. In civil association, however, there is a recognized body of law with an office of authority whose task it is to interpret, enforce and make law. Civil association is a body of rules that do not determine human action, rather, these rules specify conditions that must be subscribed to in making choices.
Oakeshott denominates cives the persons in the civil association. Lex is the terms of their relationships: it constitutes a deliberately alterable system of law, which are not commands to be obeyed but conditions to be taken into account. Respublica is the public concern, the comprehensive adverbial conditions of this association.
The cives are related to one another only by acknowledging the authority of the respublica and the recognition of subscription to its conditions as an obligation. “Civil authority and civil obligation are the twin pillars of the civil condition”5 .
Finally, for Oakeshott the practice of civility is the most appropriate to bear the idea of free agency as a reflective consciousness. In lacking a proper purpose of its own, it permits the cives to pursue their own purposes whether alone or in enterprises. If the civil association had a purpose of its own, the cives would not be free to ignore that end.
The distinction between civil and enterprise associations was not easily accepted by some commentators of Oakeshott’s work. One of the most controversial issues is the idea of non-instrumentality, and the theoretical meaning of civitas as a non-purposive mode of association. In this paper I am going to analyze two arguments against civil association: (a) civil association is an example of enterprise association; (b) there are not non-instrumental rules because every rule has a purpose.
The first argument I extracted by the interesting article of R. N. Berki6 . His central argument is that the postulates of civil association reveal it being insubstantial and only a particular expression of a given world of enterprise associations. According to him,
In the first place it is exceedingly difficult to assign ‘substantive purposes’ to groupings which answer the definition ‘enterprise association’, and Oakeshott too concedes as much in many of his subtly-woven parenthetical clauses and qualifications. Even in the simple case of a business firm it would be problematic to say, without committing petitio principii, whether its substantive purpose is to make soap, to make profit, to provide employment, to carry on the family tradition, to support home industry (…) Where he might be faulted is in not making it sufficiently clear that this is not an adequate mark of distinction between civil association and any one enterprise association7 .
The author is correct that in practice the boundaries between civil and enterprise associations are not clear. However, it does not mean that there is no categorical distinction between them. In the example above, he argues that in a business firm it could be problematic to discover its real substantive purpose. But the most appropriate question to this case is this: Is it really possible to raise a business firm without any substantial purpose? As we can see, Professor Berki did not pay attention to the fact that to have a purpose (no matter what) is intrinsic to the nature of any enterprise association. The civil association, as a formal relationship, prescribes adverbial conditions to be taken into account and not substantive purposes. Of course it is not difficult to relate some of these adverbial conditions to a specific comprehensive doctrine. But Oakeshott never said that the civil association advocates total neutrality: what he says is that the rules of the civitas are indifferent to substantive purposes. Then, we can observe an asymmetry in the treatment of those modes: for the first a substantial purpose is necessary, while to the other is irrelevant.
Continuing, Professor Berki says that:
Now Oakeshott, as we have seen, squarely asserts that the ‘essential character’ of civil association is that it is a ‘vernacular moral language’. However, in his arguments setting out the logical postulates of civil association, suddenly another tone and another kind of argument make their appearance. We are told, having been introduced to the postulates of law, adjudication, legislation and government (ruling), that as well as being a ‘language of civil intercourse’, civility is also a relationship ‘in terms of the assurance’ that law ‘gives substantive protection’ against injustice. (…) the assurance and protection provided by civil association are not the lyric music and poetry of morality; they refer, obviously, to such hard, mundane goings-on as fines, imprisonments, arrests, search-warrants, police-batons, solitary cells, riot emergencies, hangings – what else could they refer to? And what have these directly to do with a ‘language of intercourse’? (…) We may, indeed, express the relationship of these two, ostensibly different, kind of associations in this dramatic way: civil association is enterprise association, looked at from a peculiar angle8 .
Every action has a form and a substance, and it is logically impossible to image an action without any of these characteristics. However, the argument of Oakeshott is that it is possible to distinguish between a formal and substantive relationship. In the specific case of the civil association, the formality is guaranteed by the fact of being a relationship composed exclusively by rules. Those rules are not commands but conditions to be subscribed to in making choices. Besides, “in the civil condition, ‘private’ and ‘public’ refer to relationships, not to persons, to performances, or to places. And they meet in every substantive engagement: the private ‘interest’ in its success and the public concern that it shall not be pursued without taking account of considerations (specified in lex) which are indifferent to its success or failure” 9.
What is problematic in Professor Berki’s argumentation, here, is that he did not take into account the important distinction between the public and the private in the civil association. He asks And what have these directly to do with a ‘language of intercourse’? The answer is obvious: everything! The recognition of the authority of the respublica implies a civil obligation to subscribe to the terms of lex. So, when a police officer arrests a robber or a public servant collects the taxes they are just subscribing to the adverbial conditions which they have a legal obligation to observe. Of course they are acting substantially, but they are not acting managerially, in the name of their own interests. The relation between a ruler and a subject, in a civil association, is a formal relationship. However, “for rulers to become managers even of an undertaking such as this and for subjects to become partners or role-performers in a compulsory enterprise association even such as this, is itself a suspension of the civil condition”.
The next argument against civil association deals with the coherence of a non-instrumental rule. I am referring to an article of Neil MacCormick10 . He argues that:
There is, on the face of it, no reason other than a purely stipulative one why Oakeshott should be so insistent on the purely “adverbial” or “procedural” quality of legal rules as such. Certainly, one can see that laws in so far as they impose obligations have the character of setting what Nozick calls “side-constraints” upon action (Nozick 1974, 28-35). Whatever we choose to do, we should do it as to avoid infringing any obligation. But a fortiori we have also then to abstain from setting as our very aim and objective performance of that which the law forbids or abstention from that which it enjoins. In this sense the law is far from being purpose-independent or purpose-indifferent. And, viewed from the angle of securing the prevention or performance of forbidden or obligatory acts, laws are far from being non-instrumental11 .
The problem of this argument is that it does not consider seriously the purpose-indifferent character of the lex. The Oakeshottean non-instrumental rules have purposes, linguistically speaking. A law prohibiting murder or prohibiting driving at high speed have purposes. But there is no set of purposes that they must have. Those rules are absolutely indifferent to any comprehensive purpose, different from what occurs with an instrumental rule. In this case, the necessity of a purpose is inherent to the rule. It must have a specific goal or the rule doesn’t make any sense.
Moreover, Professor MacCormick affirms that:
In any sense in which it is “adverbial” to have a law against murder (“whatever you do, so do it that your positive acts cause no person’s death”) it can be equally so to have a Good Samaritan law (“whatever you do, so do it that you omit no reasonable actings which would prevent another from falling into indigence”)12 .
Of course there is a great difference between a law against murder and the Good Samaritan law. Both are moral considerations, and consequently non-instrumental. However, in the case of law against murder, there is a civil obligation to subscribe to this condition when making choices. The same is not so with the law of the Good Samaritain. There are infinite codes of morality, some of them contradictory to each other; nobody has a duty to subscribe to them or to know them. One of the greatest advantages of the civil association is to establish a public and legal obligation to subscribe to its adverbial conditions, facilitating the security of the relationship between the individuals.
One important thing to learn through the critics of Michael Oakeshott is the critical reflection about the limits of the civil and enterprise associations, and the correspondent difference between non-instrumentality and instrumentality law. I argued above that these concepts are categorically distinct. In the historic practice, however, the difference between them is a difference of degree and, therefore, a matter of argumentative dispute. It is entirely possible that a rule is more or less instrumental depending on the degree of coherency it has. If this reasoning is correct, the modes of association described by Oakeshott should be very difficult to distinguish.
One example can illustrate this problem. Certainly the right to a fair wage, if presented in a Constitution, could be considered a perfectionist extravagance. The government cannot be required to guarantee any kind of welfare or distributing fishes and loaves, because they simply do not have them. But can the government require that in every contract of employment, the employer is obliged to pay a minimum wage established by law, or to respect a determined number of hours that an employee could work each day? In doing that, is the government being seduced by the logic of perfection while trying to impose an egalitarian doctrine? Or would it just maintain the order, correcting visible anomalies in the freedom of contract system?
The decision about the instrumentality or the non-instrumentality is a matter of uncertainty in the field of conversation. There are many possible and coherent answers, because there are several levels. The debates of the Supreme Court of the United States in the case Lochner v. State of New York13 clearly demonstrate it. Besides, as according to John Gray, “it is plain, however, that laws may be adverbial in form but extremely repressive of liberty in substance. We need only think of laws in communist lands, which might well be formulated so as not to abridge liberty of expression, provided only that it be engaged in ‘unbourgeoisly’”14 . Even a law that in effect proscribes religious practice might be formulated as to attach on meetings of more than a few persons the adverbial conditions that they not to be conducted prayerfully.
Actually, the formalism of the civil association does not recommend or avoid any particular adverbial condition. It does not say what the cives must deliberate. The decision belongs to them. Therefore, the politics of the civitas –the engagement of considering the conditions specified in respublica in terms of their desirability and of recommending and promoting deliberate changes in these conditions – is a great space of criticism and reflection under a community.
However, Oakeshott was very skeptical about the political activity, especially with the rationalistic tendencies of the politics of faith. “He was a skeptical conservative; he was not, to the regret of some American conservative critics, a ‘movement conservative’. The latter for him is an oxymoron. To him to be conservative is to look for the possibilities of enjoyment in the present moment” 15. Oakeshott was a conservative in the clarity the character the customs and social norms of individual habits. The tradition is a historical process, not a metaphysical truth. The practices that define the modes of governance of different societies are not rational units or random collections. They are historical compositions and the survival of a particular social practice or institution is explained because it is satisfies a human need. It is intimated from a habit of affection, not from a rationalized mind. Social institutions survive because they are appropriate, familiar and that familiarity breeds comfort and creates a willingness to maintain them. “Conservative disposition” for Oakeshott is justly the willingness to keep what is considered suitable.
BERKI, R. N. Oakeshott’s concept of civil association: notes for a critical analysis. Political Studies 19 (1981): 570-585.
FULLER, Timothy. Michael Oakeshott, 1901-1990. In: The Review of Politics 71 (2009): 100-112.
GRAY, John. Oakeshott on law, liberty and civil association. In: Liberalisms: Essays in Political Philosophy. Ed. by John Gray. London: Routledge, 1989.
MACCORMICK, Neil. Spontaneous Order and the Rule of Law: some problems. In: Ratio Juris 2 (1989): 41-54.
OAKESHOTT, Michael. On Human Conduct. Oxford: Clarendon Press, 1975.
OAKESHOTT, Michael. Rationalism in politics, and other essays. New York: Basic Books, 1962.
1 OAKESHOTT, Michael. On Human Conduct. Oxford: Clarendon Press, 1975, p. 37.
2 OAKESHOTT, Michael. On human conduct, p. 55.
3 OAKESHOTT, Michael. On human conduct, p. 78.
4 OAKESHOTT, Michael. On human conduct, p. 86.
5 OAKESHOTT, Michael. On human conduct, p. 149.
6 BERKI, R. N. Oakeshott’s concept of civil association: notes for a critical analysis. Political Studies 19 (1981): 570-585.
7 BERKI, R. N. Oakeshott’s concept of civil association, p. 573-574.
8 BERKI, R. N. Oakeshott’s concept of civil association, p. 575-577.
9 OAKESHOTT, Michael. On human conduct, p. 146.
10 MACCORMICK, Neil. Spontaneous Order and the Rule of Law: some problems. In: Ratio Juris 2 (1989): 41-54.
11 MACCORMICK, Neil. Spontaneous Order and the Rule of Law, p. 52.
12 MACCORMICK, Neil. Spontaneous Order and the Rule of Law, p. 52.
13 Lochner vs. New York, 198 U.S. 45 (1905). The case involved a New York statute that limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. By a 5-4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.
14 GRAY, John. Oakeshott on law, liberty and civil association. In: Liberalisms: Essays in Political Philosophy. Ed. by John Gray. London: Routledge, 1989, p. 211.
15 FULLER, Timothy. Michael Oakeshott, 1901-1990. In: The Review of Politics 71 (2009), p. 105.