The Ultimate Hedgehog
Review of 'The Law of Loyalty' by Lionel Smith (OUP 2023)
NB: in my library’s online copy of the reviewed book there are no page numbers, so the referencing is clunky. As book publication shifts online, I hope very much this does come to be the norm.
One of the cliches of political theory, which I unapologetically defend, is that of the hedgehog and the fox. In his book with the same title Isaiah Berlin, drawing on a fragment of a poem of the Greek Poet Archilochus, says that ‘The fox knows many things, but the hedgehog knows one big thing.’ In explaining the signifigance of this distinction, Berlin goes onto say that:
‘The words can be made to yield a sense in which they mark one of the deepest differences which divide writers and thinkers, and, it may be human beings in general. For there exists a great chasm betwen those, on one side, who relate everything to a single, central vision, one system…and, on the other side, those who pursue many ends, often related and even contradictory.’1
So, the story of the hedgehog and the fox is meant to capture the different inclinations in people, between those who try to tie things together in order to find truth, and those who seek to pull them apart. For some, this distinction has become tired. In the Law as a Leap of Faith, Gardner describes himself as so fox-like he is squirrel. Although, I’m told by others, Gardner came to regret characterising himself this way, as readers took it too literally, I’ll quote it nevertheless. He says in the preface:
‘Philosophy is not the art of compiling as many little thoughts as poassible into as few big thoughts as possible, but the art of wearing every thought down to its rightful little size and then keeping it in its rightful little place. So the main mission of this book, as I see it, is unbundling.’2
and then:
‘I am such an intellectual squirrel (way beyond a mere fox) that I don’t care at all where or how I get the little truths that I hoard away in the following pages.3
There is space for all kinds of projects and inclinations in philosophy, but I cite Gardner here because I think this idea of ‘bundling’ is very helpful in reviewing Lionel Smith’s new book The Law of Loyalty (OUP 2023). Smith’s book is about 'bundling instances of ‘other-regarding duties’ together across public and private law, common and civil law, to reveal truths that are greater than the sum of their parts. Does he succeed?
Overview: the Law of Loyalty
In this post, I want to persuade you that Professor Smith is the ultimate hedgehog. His academic label is that of a comparative private lawyer. In his new(ish) book The Law of Loyalty, however, his ambitions are much more ambitious. He seeks to provide an account of ‘other-regarding powers’ which speaks to both public and private law, across the common and civilian legal traditions.
He thinks there are common principles across the law of what he calls ‘administration’ situations where a person holds legal powers but is not free to use them as they wish. His list is so comprehensive that I’ll quote him directly for full effect. He says the powers he covers in his book include:
‘In private law… the powers of trustees, corporate directors, agents, and mandataries; in public law it includes all powers held for public purposes, whether they be held by the Prime Minister, by a police officer, or by a judge.’4
His book then aruges for general principles governing administration including that:
‘Other-regarding powers can only properly be used for the purposes for which they were granted; that they should not be used when the holder is in a conflict of self-interest and duty, or a conflict of duty and duty; and that the holder is presumptively accountable for any profits extracted from the other-regarding role.’
Smith is not the first to connect ‘fiduciary’ ideas with public law. Smith’s former colleage at McGill, Evan Fox-Decent, offers an innovative take on this where the state itself is a fiduciary. Smith’s project, though, is different. He is seeking to show that underneath different legal duties across public and private law are a common set of justificatory principles. Interestingly, he casts other-regarding duties in private law as instances of ‘political representation.’
Common Principles of Other-Regarding Duties
Smith should not be read as aruging that all these powers are identical. He rightly stresses for instance, that ‘powers held on behalf of another have many sources, not a single source.’
Intersestingly, though, what he does think is universal about other-regarding relationships, and suggests some conceptual unity, is termination. He says:
‘It is universally true that administrators can be removed from their role, even against their will, when this is judged to be in the best interests of the beneficiary of the administration.’ and again: ‘Termination is important because it is a feature of all relationships of administration that the administrator does not hold their legal powers for their own benefit; it follows that the powers can always be taken away.’
In the book he is aiming, as I understand it, to move private private law away from questions of whether relationships are ‘akin to contract’ or ‘driven by self-interest’ and instead move towards thinking about understanding their justification in terms of other-regarding duties. I am not qualified to assess if he succeeds or fails in this mission with respect to private law, but I am interested in what he thinks about public law.
Other-Regarding Duties in Public Law (Chapter Nine)
Smith is not setting out to revolutionise public law. He says that ‘The main prescriptive or normative claim [he is making] is that [in public law, the treatment of other-regarding duties] is roughly… as it should be.’
While the idea of ‘public trust’ is a metaphor, Smith nevertheless thinks the idea of trusteeship is helpful in public law. He says: ‘public administrators are subject to legal duties that are unsurprisingly similar to those applied to trustees and other private law administrators; but neither public administrators, nor the State itself, are typically trustees in the technical sense of that word.’
His ambitions in public law are for more modest than in privlate law. He is clear he is not offering a theory of the state, or any part of the state, or a theory of state power, or any particular public power. Yet he does think the justificatory principles underlying other-regarding duties in public and private law are the same. I disagree in, at least four, instances.
Limit of Smith’s Theory for Public Law
There are at least four ways in which I do not think Smith’s account translates into public law.
1.Removability. Key to Smith’s argument is that what connects other-regarding duties across public and private law is removability. This is clearly false in administrative law, and false in a range of ways. Civil servants are not removable, nor should they (ususally) be. Second, the opaquity and non-removability of the security services is a central challenge for administrative law. I was not persuaded that removability cuts across these bodies of law in a way that does justificatory work in administrative law.
2.Ultra-Vires Revisited, Revisited. Smith clearly is seeking to connect his approach to public law with the (in)famous ultra vires rationale for administrative law. Under this doctrine, an action is unlawful when (and because) it is beyond the scope of the executive’s power. This approach has, I think, has been powerfully refuted by Tom Adams, showing that the aims of administrative law must be more multi-faceted than this, reflecting the different rationales and approaches of the different grounds of review.
3.The Case for Common Law Constitutionalism. The most puzzling of Smith’s interventions with respect to Public Law I found at 9I(C)(3) (again let me note my frustration there are no page numbers) There, Smith challenges the idea of ‘common law constitutionalism’ on the basis that such an account explains principles of law based on their source, rather than their justificatory character. He calls such a label ‘possibly true’ but ‘unhelpful.’ Like looking in a tort law book and finding such wrongs exist because the law said so.
I disagree. What common law constitutionalism captures, I think, is those limits in law that judges have, over centuries, asserted and established as necessary for a legal system to count as a legal system at all. It is a difficult doctrine to understand and enforce, but a helpful word which captures that it is judges that have carved out through the common law over centuries. That judges have asserted and established these principles is inseperable from both the justification and the rationale of common law constitutionalism. I think much is lost, rather than gained, by shelving this label to search for a higher and deeper justificatory purpose of the common law.
4.The Signifigance of Sources Smith acknowledges, as discussed above, that there are different sources of these other-regarding duties, but does not think that makes a difference to their justifactory character. I disagree. Further, I sceptical of thinking which suggests that public powers are ‘granted’ at all. I think, at least in public law, the differences between the kinds of ways that public bodies and officials act for others are more important than their similiarities. The ways in which powers arise in public law are a complex and overdetermined mix of statute, common law, tradition, convention, and fiction (think of the Carltona doctrine, for instance.) Public law is an ongoing set of relationships, pushing and pulling, between authority and power. The idea of singular grant of power, which flows one way and is terminated another directly connected way, did not strike me as reflecting the practise (or challenges) of the law.
Conclusion: What does it mean to ‘grant’ powers to others?
What is Smith trying to say, or not say, in this book? He says that ‘Although the differences are profound, the commonality [between public and private law] runs deep.’ His core arugment is that there ‘are legal norms that apply in both domains, which recognizably derive from common justificatory principles, precisely because both domains involve instances of acting for others in law.’ The two themes of his book, he says, are unity and diversity. Here we return to the hedgehog and the fox.
I thought this was an impressive, demanding, ambitious, and valuable book, although - at least in public law- it did not persuade me of its central aim. In public law, context is everything and so there is limited justificatory alue to bundling a wide range of legal and political duties together. Smith did persuade this public lawyer that there might be value here in private law in reconceiving the central missions of the field. While this book is the paradigmatic example of a hedgehog-ic endeavour, it demonstrates that legal scholarship requires, and benefits from, all kinds of approaches; including this cross-disciplinary one.
Isaiah Berlin, The Hedgehog and the Fox (Elephant 1993) 3.
John Gardner, The Law as a Leap of Faith (OUP 2012) v.
ibid. vi.
Lionel Smith, The Law of Loyalty (OUP 2023)