Introduction

The biggest impact that my experiences in Belfast had on my thinking as a jurist related to Normative Jurisprudence. Towards the end of my time there I became involved in public debates about emergency powers and torture and this linked closely with my growing interest in Jeremy Bentham’s utilitarianism in relation to rights, justice and public policy. I have written extensively in this area recently, especially in my General Jurisprudence (2011),¹ but many of my ideas were forged in observing and reflecting on the conflicts in Northern Ireland, which is why this chapter belongs to the Belfast period. It outlines their development through the problem of belief, classical utilitarianism, Hart’s fragile modified utilitarianism, to a position that is generally agnostic, quite sceptical about universalism and ‘ideal theory’, and much closer to the pragmatism of Amartya Sen and Yash Ghai on human rights and justice than to Rawlsian idealism or Dworkinian objectivism. I do not claim to have added much to these topics that is original or distinctive, except perhaps in relation to human rights scepticism,² but it is an important part of my intellectual journey.

Normative Jurisprudence

Understanding law involves concepts, values, facts and legal knowledge. Normative Jurisprudence is a rough label for that aspect that deals with values: questions about law and morality, justice, rights, legitimacy and so on. ³ One way of looking at it is as moral philosophy and meta-ethics applied to law. Normative jurisprudence now occupies a central place on the agenda of Anglo-American jurisprudence as is illustrated by the attention given to Bentham, Dworkin, Finnis, Rawls, Raz and modern critical theory. Whether normative theories of reasoning and rationality, and questions of relativism or scepticism about them, are subsumed under Normative or Analytical jurisprudence is largely a matter of convenience.

I believe that Normative Jurisprudence is a central part of understanding law, but, as suggested above, my contribution has been modest.⁴ There is a particular reason for this: I am personally a moderate sceptic or agnostic about values. I do not believe in universal moral or natural law principles; I have a quite pragmatic, mildly sceptical view of human rights and justice as ideas; I am not a strong relativist or atheist,⁵ but nor am I an objectivist in morals. I think there is a strong element of ethnocentrism in most universalist positions. I have some principled moral and political commitments, but I do not claim that these are based on firm philosophical foundations. I am not a strong subjectivist in that I do have a working assumption that reflection, reasoned debate, conversation and negotiation can help to advance understanding and build working consensuses and reasonable accommodations up to a point. But I also accept that entrenched beliefs are not much susceptible to rational persuasion nor Habermasian dialogue. Belief pluralism is a fact that we have to live with. I want to try to understand the world as well as to change it. For such reasons I regret that so much legal scholarship is normative and opinionated.

This chapter gives a brief account of the development of my ideas in this area, in which I end up remarkably close to Herbert Hart, a modified utilitarian, a democratic liberal (in the John Stuart Mill sense) and a kind of legal positivist. But the roots of this are somewhat different from Hart’s.

As recounted in Chapter 2, from an early age I had problems with beliefs, values and commitments. Although my revolt in the Boy Scouts was mischievous, lurking behind it was probably an instinctive resistance to being pressured into making a promise that I did not intend to keep. I had no objection to helping old ladies across the road or to doing a good deed every day, but staying clean in thought, word and deed was neither attractive nor feasible. Similarly, having opted for confirmation as less undesirable than boxing, we were in theory free to duck out of the ceremony until the day before, but having feebly expressed some of my doubts, I succumbed to the pressures to go ahead. I swore that I believed the Thirty-nine Articles of the Anglican Faith. But how could one swear to belief in those that one just did not understand or in those that one thought that one understood but did not agree with, or in those on which one was agnostic or even more doubtful? Like Bentham, I felt that I was being coerced into lying. Legalistic? Not really. Literalistic? Not by my lights.

Later, as an undergraduate, I kept returning to the fact of belief pluralism: we live in a context in which people believe many different things; the world contains many ideologies, religions, cosmologies, moralities; but for the accident of birth I could have been a Jew, a Buddhist, a Mormon, some sort of Muslim or a militant atheist. Most people cannot be persuaded to change their beliefs. Belief pluralism is a social fact (Chapter 3). That was the starting point for my personal philosophy and approach to Normative Jurisprudence.

I puzzled – sometimes agonised – about belief and acceptance, belief and commitment, belief and action, leaps of faith, miracles, revelation, prayer, bowing to authority. This uncertainty seemed to be a psychological state as much as a tangle of philosophical puzzles. In time, I accepted agnosticism about religion and, more guardedly, about morality. I understood that in order to act and make choices, to decide what one thought was right, one needed certain working assumptions – some values for the time being, some planks or rafts to keep one afloat in a sea of uncertainty.⁶ These agnostic concerns to some extent inhibited unwavering commitment to any particular ideology, ethic or cause. At Oxford I sampled various political clubs, stayed away from religious ones, was convinced by none and joined the Liberal Club, which I did not take seriously. I had some strong instincts – to preserve my autonomy, to resist authority and to go my own way – with occasional acts of visible non-conformity. Basically, I felt that I did not know and had to live with this. A rather intellectual version of a not atypical adolescence – also not very different from the young Bentham.

In studying Jurisprudence, I was suspicious of Natural Law; even Aquinas’s subtle reconciliation of revelation and reason failed to persuade. How could one be sure about revelation? Was not reason another wobbly plank? The culture of legal education in Oxford in the 1950s was quite strongly positivist. Law as it is should be distinguished quite sharply from law as it ought to be. Our task was to learn what the law said and apply it. One should not let one’s value preferences or political views influence one’s interpretation of the law; one should master the law before one attempted to criticise it. Indeed, criticism was not really a proper activity for law students.

In Oxford, John Austin, and to a lesser extent Bentham, were one part of that culture, but it was Austin’s positivist theory of law rather than his utilitarianism that one studied. Austin was preferred to Bentham. He was ‘the Father of English Jurisprudence’. He dominated taught Jurisprudence, which was perceived as mainly analytical, though caps were casually doffed to some other ‘schools’: Historical Jurisprudence, Natural Law, Sociological Jurisprudence, Scandinavian (but not American) Realism. Law is a social phenomenon – what else? – but understanding law was knowing legal doctrine – the basic man-made concepts, principles and detailed rules of English and Roman law. Hart was my guru, and conceptual analysis became my starting point.

Herbert Hart had his own concerns about morality.⁷ These became apparent to us in his debates with Lord Patrick Devlin about morality and the criminal law, especially in regard to prostitution and homosexuality in the wake of the Wolfenden Report (1957). Hart revived and refined John Stuart Mill’s view in arguing that law should not prohibit or punish acts, even if they were perceived to be immoral, unless they involved harmful consequences to others or to the ‘public interest’. He strengthened his case in his brilliant writings on punishment in which he struggled with Benthamite utilitarianism. He found consequentialism attractive, especially in relation to public morality: generally, the law should be concerned with the maximisation of utility, the greatest good of the greatest number. But some implications of pure utilitarianism went contrary to his deepest instincts: inflicting harm on the innocent; sacrificing the rights of the few to the interests of the many and other forms of unqualified majoritarianism. In all of these instances pure utilitarianism went against his intuitions and he felt the need to invoke some principles independent of utility to modify his utilitarianism. In extreme cases one might justify punishing the innocent, but only if no utilitarian considerations allowed an escape and one acknowledged that one was sacrificing an important principle independent of utility (e.g. punishing the innocent is unjust). Hart never found a satisfactory basis for his rather weak moral pluralism. Towards the end he acknowledged as much: ‘[W]e have not yet developed a theory of individual rights, comparable with utilitarian theory in clarity, detailed articulation and in appeal to practical men … So it is true on this subject as on others, that where Bentham fails to persuade, he still forces us to think.’⁸

I was attracted to Hart’s debates with Devlin about the relationship between law and morals, his treatment of punishment and, not always consciously, by his underlying political liberalism in the English (not the American free-market) Millian sense. Hart was more a social democrat, committed to the welfare state, than a liberal democrat, but he stuck with the individual as the primary moral unit and with John Stuart Mill on the importance of autonomy. In nearly all of these matters I came close to Hart on this, with the exception that I was personally more concerned about ethnocentric tendencies in Western moralising and probably more attracted to aspects of communitarianism.

I mainly encountered philosophical issues in ethics via Hart, especially in relation to the justification of punishment. After studying them in more detail I was attracted to Benthamism, but worried by some of its implications. I took a whole course on Utilitarianism in Chicago (taught by J. B. Schneewind), from which I learned that Bentham’s idea of pleasure could cover all human desires and satisfactions; that wealth was a dangerous proxy for these; that the felicific calculus was a metaphor and should not be interpreted literally in a mathematical way, as some maintained. Chicago economists’ propensity to apply cost–benefit analysis to almost anything gave me pause. I also learned that most of the more trenchant criticisms of utilitarianism were focused on individual ethics rather than public morality; and that in the latter sphere Benthamism had been ably defended by A. J. Ayer against some of the main attacks.⁹ That was helpful in underlining that both Jurisprudence and Bentham were mainly concerned with public morality rather than individual ethics. Later, when teaching about Bentham, I urged students to work out which version of utilitarianism they thought to be the least vulnerable before pitting that version against their own intuitions, beliefs and commitments. Moreover, even if they believed that they had some natural or moral rights, they should take serious account of Bentham’s criticisms of the French Declarations of Rights.¹⁰

Torture

My interest in utilitarianism was brought into sharp focus by events in Northern Ireland. The revival of the Troubles from the mid-1960s and the British response raised important issues about interrogation techniques and emergency powers. In 1971 the Compton Report found that certain brutal techniques of interrogation, notably hooding, noise, deprivation of sleep and a diet of bread and water amounted to physical ill-treatment and were unacceptable. In 1972 the Parker Report confirmed that these techniques were illegal and they were discontinued for the time being.¹¹ Later in Ireland v The United Kingdom (1978) the European Court of Human Rights held that the ‘Compton techniques’ did not constitute torture but were nevertheless violations of Article 3 of the European Convention on Human Rights as constituting ‘inhuman and degrading treatment’. These techniques, together with derogation of civil liberties, especially internment without trial, were publicly debated mainly in terms which had affinities with utility versus human rights.

Queen’s had a strong tradition of not tolerating sectarian intolerance on campus. This stance was generally understood and respected both within and outside the University. However, universities are expected to contribute to their local community and to engage in appropriate ways with important issues of the time. In 1971–2 some students became increasingly critical of the alleged aloofness of Queen’s. A standard response was: ‘Get off the fence? – on which side?’, given that local students divided approximately in a ratio of 50–55 per cent (Protestant) to 45–50 per cent (Catholic). But this was too glib. In the Law Faculty some of us formed a staff–student, non-sectarian, working party to contribute to public debate on contentious issues ‘with relative detachment’, starting with interrogation techniques and emergency powers.¹² We consciously applied academic values in our approach to the task and some people may have felt that this over-intellectualised fiercely contested political issues. This was an exercise in consensus politics. The process was illuminating, but I was ambivalent about some of its products. In particular, we produced a pamphlet on emergency powers which inevitably represented a balanced package of compromises.¹³ I was dismayed when some Conservative MPs later selectively cherry-picked particular recommendations out of context. However, the exercise was a valuable experience for the participants and it did represent a strong public reaffirmation and application of the academic ethic to political issues.

Involvement in this working party increased my interest in these topics and I devoted a good deal of time to them both as a scholar and public intellectual, gradually getting dragged into the murky waters of the literature on torture. In 1971 I was invited to join the Bentham Committee, which was responsible for the editing and publication of Jeremy Bentham’s manuscripts at University College London. There I found two unpublished manuscripts on torture dating from the mid-1770s to 1780. In the mid-twentieth century, most English moral philosophers had lost interest in torture, treating it as ‘beyond the Pale’, but these manuscripts were intellectually interesting as well as topical. With the help of Penelope, who did most of the editing, we prepared an article containing the two pieces together with a commentary.¹⁴ Interestingly Bentham acknowledged at the start that, until he turned his attention to the subject, he would never have imagined that he would approve any practice that could properly be called ‘torture’. Indeed, he had welcomed its abolition by several ‘of the most absolute governments of Europe … But in the course of a scrupulous examination a man learns to render himself proof against the delusive power of words, and to correct the first impressions of sentiment by the more extensive considerations of utility.’

Bentham reluctantly concluded that ‘there are a very few cases in which, for a very particular purpose, Torture might be made use of with advantage’. He even argued that in some circumstances coercive torture could be more easily justified than punishment because the infliction of pain could be stopped the moment that the objective of the coercion was achieved (duration). Perhaps the strangest aspect of Bentham’s account is his claim that ‘The great objection against Torture is, that it is so liable to abuse.’ That is not most people’s answer to the question: ‘What is wrong with torture?’ Some may emphasise the extremity of pain, the denial of dignity, extreme coercion or the cumulation of bad consequences both direct and indirect. Bentham had two significant insights: torture is a vague and complex concept that covers a variety of practices of varying degrees of horror;¹⁵ and as a practical matter the greatest evil is its institutionalisation and routinisation.

It is unnecessary to summarise Bentham’s complex, insightful and shocking analysis here – it is readily available elsewhere. To be fair to him, he came to his main conclusion reluctantly, he laid down quite stringent conditions for the application of torture and he restricted the concept of torture to the infliction of bodily pain for the purpose of coercion – thereby excluding many of its current uses, such as incapacitating political opponents and terrorising the population. Moreover, he did not publish what he had written; perhaps he realised that his arguments, like the practice itself, could be readily abused and that he indulged in self-censorship.

However, I took responsibility for publishing the manuscript because, contrary to Bentham’s rather complacent assumptions, far from being ‘abolished’ the practice of torture had become widespread, even routine, in many countries of the world in the twentieth century. Bentham’s discussion of torture is easily criticised. His definition of torture is both too wide and too narrow: it is wide in that leaves out any requirement of extreme pain; but it is also too narrow for today in that it defines the purpose of torture in terms of coercing an individual to do or desist from doing something, typically to make a confession during interrogation. Despite setting down some stringent conditions for justified use, Bentham’s account boils down to little more than cost–benefit analysis. He concludes that there may be situations where inflicting torture is the lesser of two evils so that its use may occasionally be justified.

Aware that Bentham might be cited out of context or misinterpreted, my commentary emphasised the extreme narrowness of his justification and supplemented his arguments against the practice. In particular, I argued that in addition to arguments based on principles independent of utility, even a utilitarian could support a general absolute legal prohibition on torture and analogous practices for the pragmatic reason that it would probably be, and still is, widely used beyond any colourable justification. Torture needs to be studied, analysed, reported and fought just because, even more than slavery, it has not been abolished as an institutionalised practice. It still flourishes in some countries.¹⁶

In addition to the article on Bentham, I attended a conference in Paris on Torture in 1973 and gave a paper to the Aristotelian Society in 1978,¹⁷ urging philosophers to pay attention to the conceptual and philosophical issues involved. Both experiences were unpleasant. The Paris Conference, organised by Amnesty International, was the start of the campaign for a UN Convention on Torture. I was dismayed by the experience: horrendous reports not only of individual cases but of the extent of institutionalised torture; human rights activists wringing their hands helplessly; international lawyers thinking in terms of a twenty-year process (in fact the Convention came into effect in 1987, ‘only’ twelve years later). Amnesty itself dealt admirably with individual cases, but did not seem to have much interest in systematic research on the causes and means of combating torture nor a vision about how to prevent, preferably abolish, it in practice, not only in law.¹⁸ At the meeting of the Aristotelian Society a well-known philosopher objected to having the subject debated at all. I insisted that there was a real-world problem with philosophical aspects, but I sympathised with the objector: even at that meeting some of the discussion seemed to me to trivialise the issues, so that I felt that we were fiddling while Rome burned. Bentham frequently gets cited out of context, without mention of his hesitations and strict conditions. Many arguments can be abused, especially the argument from the extreme case (e.g. the ‘ticking bomb’ scenario), which when invoked usually ignores the distinction between institutionalised torture and extreme one-off choices. The recent debased US debate since 9/11 over water-boarding and other practices amply illustrates the problem.¹⁹

After leaving Northern Ireland in 1972 I gradually escaped from studying torture, although like poverty, inequality, insecurity and even slavery the subject is always with us. I can no longer claim any special knowledge of torture and efforts to eradicate it. But my sense is that while a great deal of attention has been focused on law and individual cases at national, transnational, international and supranational levels, the literature is unbalanced and skewed away from some of the most important issues. For example, nearly all of the legal literature has been focused on international law or on the ‘morality of torture’. Very little attention has been paid systematically to such questions as: under what conditions does torture flourish? Who is responsible and accountable for institutionalised torture? By what process does torture become routine? What is the link, if any, between torture and democracy? With a few exceptions, hardly any serious historical accounts of the phenomenon have been undertaken, but there is a lot of thinly disguised prurience about techniques and instruments of torture. One interesting exception is John Langbein’s Torture and the Law of Proof (1977), which convincingly shows that changes in the Law of Evidence, especially in regard to confessions, contributed more to the decline of the practice in canon law than the exaggerated influence of enlightenment thinkers, such as Beccaria, who influenced Bentham. Sir Edward Coke complacently claimed that English law did not condone torture but, even now, ‘visitors with strong stomachs’ can ponder this as they queue for tickets (‘no refunds if you faint’) to the dungeons of Warwick Castle, complete with oubliette, interactive and participatory gimmicks and selfies (‘What a Scream!’).²⁰

One of the very few exceptions to the lack of systematic analysis of institutionalised torture is work sponsored by the Association for the Prevention of Torture (APT). Founded in Geneva 1977, APT is an international non-governmental organisation focused on the prevention of torture and other acts of cruel, inhuman or degrading treatment. APT’s strategy is based on the belief that prevention of torture is best achieved through three integrated elements: effective monitoring, legal and policy frameworks and ensuring determination and capability on the part of international and national actors. In 2011–12 it supported a four-year project on torture prevention led by Dr Richard Carver of Oxford Brookes University, the objective of which is ‘to identify the key factors leading to a reduction in the risk of torture and other ill-treatment’.²¹ This study, with a modest team, resulted in an excellent interim report to the Swiss-based APT, followed by a substantial book published in 2016, co-edited with Lisa Handley. Its starting-point was no more than a hypothesis:

Carver acknowledges that there is an extensive scholarly literature about torture in philosophy, psychology, medicine and law (especially international law and human rights). But nearly forty years after the Paris Conference, he found the literature still unbalanced:

In 1984 Amnesty published a strategy for reducing the incidence of torture generally. Although this was based largely on anecdotal experience in a few countries rather than systematic research and analysis, the Carver Report and book suggest that by and large their prescriptions were sound. In the past thirty years the situation has improved substantially, mainly in countries whose governments actually want to try to tackle the problem.²⁴ Amnesty’s twelve-point programme did correctly pinpoint measures that can work.²⁵ With the wisdom of hindsight they look like not much more than common-sense answers to unasked questions about the demography and distribution of institutionalised practices, such as where and when does torture take place? Who are the victims and who are the perpetrators? What are the incentives and deterrents for those responsible? And so on. One crucial change has been to switch the focus to police stations in the first forty-eight hours after arrest rather than in prisons over longer periods. Statistically, the main victims are the deprived, the homeless and persons suspected of petty crimes rather than ‘terrorists’ and members of transnational criminal organisations. Preventive measures in police stations can be effective, such as recording or videoing interviews, good record-keeping, rules excluding improperly obtained evidence, availability of lawyers, professionalisation of police training and discipline and greater transparency overall.

Returning to the subject in 2016, I have been surprised and pleased that Carver and Handley convincingly conclude that:

Of course, there is still a huge problem, especially in countries with civil wars, extensive unrest, undisciplined security forces or repressive regimes. It is tragic that this kind of research was not undertaken twenty or thirty years earlier. On the whole academics seem to have contributed little in this period, except for moralising and formal legal measures. Insofar as ‘the problem of torture’ has attracted scholarly attention in the past thirty to forty years, from the point of view of prevention generally the wrong people have been barking up the wrong trees.²⁷

The main reason that I have dwelt here on this distressing topic is that I think that the distortions in the academic literature on torture and its relative neglect of the central practical issue of its prevention echo similar distortions in Jurisprudence and the discipline of Law when attention has been focused on analytic truths and ethical puzzles to the neglect of empirical reality. We need an epidemiology of torture and an empirically informed discipline of law.

This is not to suggest that philosophers have nothing to contribute. Bentham’s manuscripts illustrate some of the limitations of utilitarianism. Moral philosophers who argue that torture is always wrong and jurists who support an absolute prohibition in law (as I do) seek to justify their position within different frameworks – some consequentialist, some deontological, some appealing to intuition. Bentham’s account is not an answer to the question: ‘What is wrong with torture?’ But it contains the seeds of two important insights: first, he was right in identifying its susceptibility to abuse, to its being used beyond any colourable justification; secondly, this illustrates an important distinction between individual infliction in an extreme case and torture as an institutionalised practice.

Today it is recognised that torture is used for many purposes. In his book on Torture and Moral Integrity, Matthew Kramer has produced a useful typology including placatory, intimidatory, extortionate, act-impelling, punitive, sadistic, discriminatory, humiliative, extravagantly reckless, incapacitative and edifying (including aversion therapy).²⁸

This is illuminating, but one wishes that Kramer had not confined himself to justifying absolute moral prohibitions using mainly hypothetical examples, rather than turning his attention to the extent, causes and conditions for actual practices. He even criticises Shue for being as much concerned with empirical matters as analytic truth.²⁹ The problem of torture needs both. Conceptual analysis (e.g. of responsibility, accountability, transparency, inhuman, degrading cruel treatment) has its uses; but if conceptual and moral issues are treated as isolated from practical problems in the real world they tend to become irrelevant, when they are not, and can distract attention from the most acute and common practices.³⁰

Today torture is still endemic in a majority of countries, almost always without any colourable justification or excuse. This suggests that the central ‘problem of torture’ is not about its justification in a narrow band of extreme cases, but about its prevention and – optimistically – its abolition as an institutionalised practice that is widespread, embedded and tolerated very widely. Like ‘the peculiar institution’ of slavery the main question about abolition is not whether, but how. Like slavery, it is so commonplace that political and moral opinion has been cauterised – routine torture is not news. Like slavery, laws at global, international, regional and local levels are of symbolic value, but often ineffectual. Like slavery, the mere passing of laws does not mean ‘abolition’ in fact and does not solve ‘the problem’; unlike slavery, it has not yet been the subject of a really powerful movement that has captured the public’s imagination. One special characteristic of the present picture is that most victims of torture worldwide are criminal suspects, not alleged terrorists or political opponents. Bodies like Amnesty and APT have done noble work, but their resources are tiny compared to the scale of the problems. Contrast the investment in other diseases such as cancer and dementia, and one can see the imbalance.

Human rights and justice

Of course, torture was not the only topic in Normative Jurisprudence that engaged my attention. Over the years I struggled with Bentham’s vicious, but incisive, attacks on human, moral and natural rights.³¹ For him rights are creatures of positive law; talk of non-legal rights is mischievous nonsense. On the whole, I think that human rights law and human rights movements have probably been a force for the good and I have supported Bills of Rights and other human rights instruments and activities, mainly for pragmatic reasons. But it is difficult to construct a stable philosophical basis for non-legal rights and some of the claims of human rights discourse seem to me to be overblown. I have so far ended in the intellectually unsatisfactory position that natural and human rights may not exist as moral rights, but the discourse of human rights – talking as if they do – can pragmatically be very useful, and sometimes effective, in holding governments to account. As my friend Yash Ghai argues, human rights talk provides a workable language and an armoury of arguments for debating and negotiating constitutional and other political settlements. It is useful to talk as if they exist.³²

In teaching I have usually devoted quite a lot of attention to Justice. Again, agnosticism and hesitations about universalism and ‘ideal theory’ have inhibited any attempt to make a distinctive contribution in this area. Since 1971 John Rawls’s A Theory of Justice dominated the landscape. It deserves respect and careful study, but it always left me uneasy. Like Hart and Amartya Sen, Rawls had initially been attracted by utilitarianism and had worked out his ideas in opposition to it. His arguments were very carefully crafted and challenging, but I was never really persuaded. When Rawls ventured beyond some American cultural diaspora and took up ‘globalisation’, I had no difficulty in finding The Law of Peoples naïve, parochial and of almost no practical interest.³³

I have long been an admirer of Amartya Sen’s writings on famines, the capabilities approach, gender and the human development index.³⁴ When he belatedly published The Idea of Justice in 2009, I found this more appealing than Rawls, but I still had reservations.³⁵ Llewellyn highlighted Edmond Cahn’s The Sense of Injustice (1951), an intriguing work of armchair psychology, and for a time I flirted with the idea that there may be a near universal sense of injustice, but I did not find the empirical research very satisfactory.³⁶ I have found the writings of Singer and Pogge inspiring, but I have remained a relatively well-read agnostic. In teaching about distributive justice, I used a Llewellynesque nursery example: mother has one indivisible cake (or other unique good). Her six children put forward different claims that they were the one to have it: desire, merit, age, strength, timing, ‘my turn’, ‘destroy it’ and fair procedure. In class we played with degrees of desire and merit and others of Bentham’s dimensions, but usually the discussion ended up with drawing lots as the fairest distribution. Pedagogically this worked rather well, but it is hardly ground-breaking. So, although I devoted much of my teaching to Normative Jurisprudence, I cannot claim to have had a very distinctive set of views: I am a modified utilitarian, a political liberal, and I prefer Amartya Sen’s practical capabilities approach to justice to Rawlsian ideal theory.