Justice as Friendship: A Theory of Law

Justice as Friendship: A Theory of Law. Seow Hon Tan. Farnham, UK: Ashgate Publishing Limited, 2015.

The field of study delineated by the theory of law is among the most relevant of philosophic disciplines given the proliferation of both legislative judicial review and quasi-judicial administrative tribunals, but is also rather derivative, drawing heavily on more general philosophic positions such as positivism, liberal and human rights theories, critical studies and feminism, as well as natural law. Indeed, for classical authors such as Plato and Aristotle, law itself was a term of distinction implying local customs and dictates in contrast to the relentless questioning of the philosopher in search of nature. Natural law aside, contemporary approaches to legal theory seek universally to avoid the notion of nature as a ground for legal theory. They aspire to mere positivist description (Kelsen, Hart), mere substantive justification embedded in human autonomy (Dworkin, Rawls, Habermas) or simply counterfactual critique (Unger and Kennedy). At the same time, each of these non-foundationalist stances tends to reify its own rather arbitrary presuppositions. In this regard, natural law as expounded by an author such as John Finnis at least has the advantage of wearing its foundations on its sleeve. But in the modern pluralistic world, natural law faces skepticism over any claim to universal moral justification based upon a position often associated with a particular religious tradition, not to mention the somewhat cramped space for independent human agency that tends to be a feature of natural law theories.

The issue then becomes one of finding a theory of law that is honest about its presuppositions and avoids disguising its premises, while remaining true to a phenomenological account of human agency that is both widely applicable and substantive enough to give direction to legal principles. This is precisely what Seow Hon Tan has attempted to do in her Justice as Friendship: A Theory of Law, and with remarkable success. Tan, Associate Professor in the School of Law at Singapore Management University, has provided legal scholars and philosophers with a wide-ranging theory that attempts to ground law with a justificatory basis that avoids relativity, while eschewing the arbitrary imposition of hidden norms under the guise of universal objectivity. Relying on the reciprocity inherent in human friendship, Tan builds out a picture of law that confirms the deepest meaning of human agency while providing a humane basis for practical judicial decision-making and legislative review.

Tan begins, most appropriately, in an engagement with the other: in this case, other legal theories. Using a dialogical method, Tan starts with the fundamental contrast between the positivist aspiration to describe law and the natural law theorist who seeks to understand what law ought to be. Moving between the two positions, Tan is able to demonstrate that the positivist’s claim to mere description is inadequate in light of the always-present prior determination of the positivist regarding which “facts” are themselves given value in the descriptive system. By comparison, Tan questions the natural law critique of positivism as expressed in the work of Lon Fuller in his debate with Hart over the question of unjust laws. She notes that Fuller failed to accept that even positivists such as Hart could recognize an extra-legal moral obligation to disobey a repellent law, and that Fuller’s own elucidation of natural law makes it almost indistinguishable from the practical consequences of positivism. The result for Tan is that positivism is not immune to moral constraints on law, while many modern natural law theories are themselves unable to arrive at a foundation for law that is sufficiently substantive to be practically applicable.

Tan then proceeds through a discussion of those authors who have sought a neutral justification based primarily in human autonomy, such as Dworkin, Rawls and Habermas. Reviewing Rawls’ veil of ignorance and original position, Dworkin’s demand for consistency within the law from a Herculean perspective, and Habermas’ ideal speech situation, Tan masterfully exposes the difficulties with positions that place the right above the good as a presumed interest-free and objective basis for law. In this context, she voices her agreement with the critical school represented by feminism and authors such as Unger and Kennedy who challenge the interest-free stance of Rawls’ veil and Dworkin’s Herculean perspective as excluding counterfactual principles. In accord with the critical school, Tan points to the possibility of counter-principles within the legal system that undermine Dworkin’s desire for consistency within the law. Tan readily admits that excluded perspectives can fall through the cracks of a legal system that presumes to encompass an interest-free standpoint.

At the same time, Tan is equally critical of the critical school itself. She highlights its arbitrary championing of a rather romantic resolution of counter-principles that ultimately subsumes lived differences under a religious and quite uncompromising foundational perspective. Referring to Unger’s work, she notes his ultimately spiritual and rather subjective reliance on faith, hope and love as sources coming from “another world” with the power to go beyond both social tensions and biological impulses. As Tan comments, the critical school, obsessed with counterfactuals, is caught between a deconstructive agenda it cannot ground and a religious overcoming based in a hope it cannot justify.

Launching from her dialogical engagement with contrasting legal theories, Tan lays out her own theory of justice as based in the universal bond of friendship. Her discussion begins with a phenomenological examination of friendship as a free and reciprocal relationship that implies obligations and mutual exchange between friends. Drawing on discussions of friendship from a variety of classical and modern sources, Tan presents the salient elements of friendship, leading ultimately to the notion of friendship as a school of virtue embedding us in a bond that is not merely reflective of self-interest or personal identity. At the same time, Tan recognizes that the ideal of friendship is rarely achieved. Still, this impediment is not one that prevents the principles of friendship from being recognizable by all humans. Rather than seeing friendship in the abstract from a conceptualist perspective, Tan analyzes it as a lived experience in which its idealized elements are immediately operative in all types of friendship.

Having established friendship’s efficacious nature, Tan goes on to demonstrate how it can move from the intimate to the legal. Specifically, Tan challenges the notion that law represents a sphere of relationships entirely distinct from our more intimate relations. Following a number of classical descriptions, she suggests that both law and friendship attract reciprocal rights and obligations that vary more in degree than in kind. Law in this conception is more than the governance of self-interested identities interacting in a blank public space where reciprocity is enforced. Rather, friendship is continuous with a more fulsome public life that is reciprocal but not sacrificial, that avoids dichotomies between a respect that is purely individualistic and a love that is individually stifling.

Practically, Tan proceeds to show that justice as friendship is more than a simple foundation for law, but that it also contains practical direction for the formulation of new statutes while establishing grounds for criticism of existing law. In this regard, Tan specifically addresses current debates within two areas of private law – contracts and tort – through the lens of justice as friendship. Contract, with its immediately personal nature where obligations arise among parties under the rubric of freedom of contract versus contract as fairness, and torts where duties are imposed generally without an immediate relationship, both serve as examples of how friendship can be applied to resolve issues within private law.

Unfortunately, Tan does not venture into the realm of public law where her theory could have its greatest influence. While Tan briefly addresses the applicability of justice as friendship to judicial review of imperfect laws, she does not provide a detailed description of how this theory would operate in the areas of constitutional review. Similarly, she fails to assess its application within the realm of administrative law where standards of review and deference to quasi-judicial tribunals repeatedly raise important questions of fairness and bureaucratic overreach. This is all the more disappointing given that constitutional and administrative law touch immediately on our understanding of politics. And, inasmuch as justice as friendship represents a fundamental respect for a politics of reciprocity as the foundation for law-making that shuttles easily between the continuity of our most immediate friendships and our public lives, the application of justice as friendship to constitutional and administrative review could foreseeably have radical implications. It should be hoped that Tan or other legal scholars will make these applications explicit at some point in the near future.

What Seow Hon Tan has provided the legal community is an impressive, erudite and comprehensive theory of law that engages with the deficiencies of current non-foundational theories, while situating itself within a natural law tradition that is both more respectful of human agency and more applicable in a pluralistic world. This is a work that deserves the close attention of legal theorists, with its broad applicability that is intimately sensitive to our lived experiences as human beings, as friends and as political actors.