Suppose it to be true that respecting justice as defined by the fundamental natural rights discussed in Chapter 4 is the best way to address the first-order problem of knowledge. This strategy would still fail if no one in the world had knowledge of these rights or what conduct they require or prohibit. Without this knowledge no one's conduct could be influenced by the dictates of justice, and order of actions would not be achieved, and the first-order problem of knowledge would go unaddressed. Assuming widespread acceptance of this strategy, the rights of several property, freedom of contract, and first possession that to this point comprise the liberal conception of justice may be intuitively obvious to some of the people most of the time and to all of the people some of the time. But unless acting consistently with natural rights is instinctive to all of the people all of the time, we need a way to disseminate knowledge of these rights in such a manner as to make its requirements accessible to everyone in a society.

This is, moreover, to understate the problem. For the difficulty lies not merely in gaining knowledge of the substance of natural rights, but in the very nature of these rights. For, as will be discussed at greater length in Chapter 6, the natural rights of several property, freedom of contract, and first possession (and the other rights to be identifies later) are extremely abstract. By this I mean that they cannot be applied automatically and logically to any but the most simple of actual disputes. The natural right of several property and the right of first possession, for example, does not specify in sufficient detail all the permissible or impermissible ways that property can be used or acquired. The right of freedom of contract does not tell us how to identify those actions which constitute consent to transfer rights.

Where knowledge of justice is not instinctive or the implications of abstract natural rights are not obvious, the requirements of justice must be communicated and, for this to be accomplished, justice must take a certain form. These formal characteristics make up an important part of the liberal conception of the rule of law. (The other part of the rule of law is the type of legal processes that are needed to resolve disputes.) Unless the formal precepts of the rule of law are respected, the knowledge of justice that is needed to address the first-order problem of knowledge will not reach individuals and associations and consequently will not inform their decisions.

In sum, we need a way to disseminate knowledge of justice in such a manner as to make its requirements accessible to everyone in a society. This is the second-order problem of knoweldge:

The second-order problem of knowledge is the need to communicate knowledge of justice in a manner that makes the actions it requires accessible to everyone.

The problem of communicating justice is "second order" because it must be faced only once we use a conception of justice to address the first-order problem of knowledge.

Suppose, while Ann is away working, Ben enters the apartment in which she has been living and begins to fix himself some dinner with the food he finds in the refrigerator. When Ann returns and demands that Ben leave the apartment, how are they to know who has the stronger claim to the apartment or that they must share? Or suppose that Ann cultivates some land for crops. While she is away negotiating a loan for equipment, Ben comes along and, seeing no one around, begins to build a house in the clearing. Ann returns, informs Ben of her prior activities, and asks him to leave. Ben refuses. In the absence of a voluntary compromise, how is this conflict to be resolved? Whatever the just resolution of this dispute may be, unless they have some way of knowing whose claim is stronger, or that they must share, Ann and Ben do not know which of them must yield to the other.

Or suppose that Ben wishes to have sexual relations with Ann, but Ann refuses. Although the very idea that Ben could make a claim of right here is repugnant to us, I think that this example deserves to be included. For we must somehow have come to know the injustice of Ben's claim and, given the history of the subordination of women (and others) by otherwise well-meaning persons, we cannot take this knowledge of justice for granted. There was a time in the United States and elsewhere when a male master was thought to have a right to the sexual favours of a female slave.In each of these examples, Ann and Ben have a knowledge problem, but of a different kind than we have studied previously. Their problem is not in knowing the uses to which resources have be put so as to serve their interests. Their problem is in knowing who the resources belong to. Nor is the second-order problem of knowledge limited to such simple examples. Without adequate advance knowledge of what justice requires, complex economic activity is nearly impossible. No business, for example, will invest substantial sums in building an office tower unless they have confidence that their investment will not be expropriated by someone claiming to be the true owner of the land on which they are to build. Nor will they do so unless they have confidence that they will be free to occupy and charge rent for leasing the office space. And without complex commercial activity, life for everyone would truly be nasty, brutish, and short.

In each of these examples I have assumed that Ann and Ben or commercial enterprises desire only to do the just or right thing, provided that they know what this is. Assuming that Ann and Ben or the managers of a company do not instinctively or intuitively know who should prevail, however, some way must be found to communicate the answer to them,. This is what I am calling here the second-order problem of knowledge.

Of course, there are people who would act unjustly even if they have perfect knowledge of what justice required. The only thing that matters to such perople, if anything matters, is whether they will be injured by the physical resistance of their victims or will be punished for their unjust actions. That some people are like this led Oliver Wendell Holmes, Jr., to posit what has come to be called the "bad man" theory of law:

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law, or outside of it, in the vaguer sanctions of conscience. [1]

H.L.A. Hart, describing this as "the external point of view,"[2] rejected the idea that it accurately explained the whole of law:

At any given moment the life of any society which lives by rules, legal or not, is likely to consist in a tension between those who, on the one hand, accept and voluntarily co-operate in maintaining the rules, and so see their own and other persons' behaviour in terms of the rules, and those who, on the other hand, reject the rules and attend to them only from the external point of view as a sign of possible punishment. One of the difficulties facing any legal theory anxious to do justice to the complexity of the facts is to remember the presence of both these points of view and not to define one of them out of existence.[3]

I contend that each of the "points of view" identified by Hart reflect distinguishable social problems. A proper conception of justice and the rule of law should be based on neither undue optimism, nor undue pessimism about human nature and the human condition, but a proper mixture of the two. Adopting Hart's distinction, the "internal" view of law should realistically address the second-order problem of knowledge (while "optimistically" assuming good intentions); the "external" view of law should realistically address the second-order problem of compliance by those who are motivated solely by interest (while "optimistically" assuming such people have knowledge of the behavior that justice requires). The first of these problems - how "good people" who find their reasons for conduct "in the vaguer sanctions of conscience" come to know what justice requires of them - is the subject of this chapter and is addressed by the liberal conception of the rule of law. The second problem - how "bad people" who care "only for the material consequences which such knowledge enables him to predict" can be made to comply with the requirements of justice and the rule of law - is a problem of interest I shall call the "compliance problem" and is the subject of Chapter 9.

[1] Wendell Holmes, Oliver Jr. "The Path of the Law," Harvard Law Review 10 (1897) p. 459Return

[2]H.L.A. Hart, Concept of Law, (Oxford: Oxfrod University Press, 1961)pp. 86-7.Return

[3]Ibid. 88.Return