By Professor Brian M. McCall
Adapted from Chapter 1 of The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame Press 2018).
Summum jus, summa injuria.
The greater the law the higher the injury.1
With these words the great Roman orator Cicero warned against the dangers of an exaggerated exaltation of human law. His words take on a new poignancy in light of much contemporary jurisprudence. Not only have human positive laws grown exponentially in their number and scope, but the dominant theory of legal positivism has exalted the place of human positive law by building an entire system of law upon it alone. Human made law has come to be viewed as self-referential, self-justified, and essentially self-restrained. Classical natural law jurisprudence understood human law to be merely one part within a grand hierarchical edifice of laws. Human-made positive law is the detailed and varied decoration that brings into clearer view the lines, structure, and foundation of a larger legal edifice. This structure is organized and held together by a frame, or universal principles, and erected on a firm ontological foundation.
Great jurists and philosophers from Aristotle and Cicero to Gratian and Aquinas, to varying degrees of clarity, saw this cosmological edifice and wrote of its grandeur. The tradition to which they contributed was for centuries the foundation of all legal studies. Yet, in recent times the tradition has all but faded into obscurity. We have lost sight of the legal architecture because of our myopic focus on the decorations. Our primary aim must be to understand the importance of human law within its proper context, not reducing it to insignificance or elevating it beyond its rightful limits. Putting positive law in its place requires a full exploration of the architecture of the classical natural law tradition and an examination of both the craftsmen who labor on its erection and preservation and the architect who designed it.
Various general themes are woven through the discussion of these components of the architecture of law. In the first theme, the hierarchical frame of natural law is anchored to its foundation, the eternal law, by two equal pillars, reason and volition. Outside this structure, law balances precariously either on the sole pillar of abstract rationalism or on that of antirational willfulness. The second theme centers on the interdependence of each level of the structure—natural law cannot survive if severed from its source and foundation, the eternal law. Otherwise it becomes a nonobligatory element floating by itself. Human law severed from the eternal and natural law becomes a sconce detached from its wall. It becomes lost and unrestrained. It has become disconnected from its purpose and wanders about with greater danger of oppressing the people the law is meant to guide toward virtue. The metaphor of a building exemplifies the third theme, namely, that law is something real, possessing deep ontological properties and a clear form and purpose. Although human beings have a role in guiding the decoration of this cosmological building, it is not solely a product of human ingenuity or desire. Law has an existence and an essence independent of human understanding of it or human desires for it.
SURVEYING THE BUILDING SITE: CONTEMPORARY LEGAL THEORY AND LAW AS POWER POLITICS
The term “classical natural law jurisprudence” or the “classical natural law tradition” is used to distinguish this type of jurisprudence from three other categories of contemporary jurisprudence identified by Philip Soper: classical positivism, modern positivism, and modern natural law.2 Classical natural law refers to the jurisprudential and philosophical tradition shared among Aristotle, Cicero, Augustine, Gratian, and Aquinas (notwithstanding the important differences among them). Contemporary examples of scholars with a close affinity to the classical natural law tradition are Stephen D. Smith, J. Budziszewski, Jean Porter, and Philip Soper. Classical positivism, exemplified by John Austin, understood law as pure command backed by force. Modern positivists, such as Hans Kelsen, H.L.A. Hart, and Joseph Raz, accept the idea of law as command backed by threat, but add the claims that, at least from the internal point of view of a posited legal system, law is normative. Modern natural law scholars, such as Ronald Dworkin, John Finnis, and Michael S. Moore, attempt to salvage normative criteria for evaluating what is binding as positive law but do so by abandoning the philosophical and theological commitments integral to the classical natural law tradition. My summations here of these schools are obviously oversimplified and incomplete but sufficient for an introduction. Although many points of agreement exist between classical natural law jurisprudence and modern (or new) natural law scholarship, I believe that modern natural law cannot prevail as a compelling system without the philosophical and theological commitments of classical natural law jurisprudence.
Much of what is erroneous about contemporary jurisprudence can be summarized in a misunderstanding of the ancient legal aphorisms: “What pleases the prince has the force of law,”3 and “The prince is not bound by the law.”4 In the nonregal American political context, the principle has been abstracted to a more generalized one: “The intention of the lawgiver is the law.”5 The aphorism has become politically ambivalent. Whatever political system happens to be the reigning system for making law (a monarchy, an oligarchy, republic, democracy, totalitarian regime, etc.) is irrelevant. All that matters is that whatever the designated lawgiver decrees to be the law is the law, without any other justification as long as the correct lawgivers comply with the reigning procedures for making and promulgating law. No higher legal criteria or foundation exists to make or judge or legally criticize human-made laws. In fact, this very procedure for making law itself is merely a creature of positive law. Lawmakers only have to comply with the “rule of law,” meaning they comply with the way laws are made, until that rule of law itself is changed. Law has come to resemble the satiric remark of the English poet Alexander Pope: “One truth is clear, ‘Whatever IS, is RIGHT.’”6
A common thread running between both classical and modern positivism is the premise that law is in the end a product solely of human will (of either an individual or a society). Like cars and airplanes and computers, law does not exist by nature; it is fabricated by men to help organize their common life. Although the concept might be helpful to coordinate activities, law is not, in the words of philosophers, a naturally occurring real being—it is merely a human construct. Although difficult to imagine, the world could exist without law. The pessimists view this world as possible but unpleasant (the Hobbesian state of nature), and the optimists dream of a natural paradise in which all people are good and law unnecessary.
If law is merely an artificial fabrication of men, then it can be whatever men want it to be. There are no universal intrinsic principles of law that enable us to identify any purported command to be law. It is simply a rule of behavior that, once posited by someone in a position of power, becomes law. John Austin, the father of the various forms of legal positivism, argued that any command to guide the behavior of persons that is given by one with power to back up his command is a law.7 In Austin’s own words, the idea of a command is “the key to the sciences of jurisprudence.”8 According to Austin, “If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command.”9 This understanding places law solely within the power of the will. It is a verbal manifestation of a desire or wish. For Austin, the source of our duty or obligation to obey this wish or desire of another is that the one uttering it can inflict harm on us if we do not comply.10 The only requirements necessary for some statement to become a law are that (1) it is the wish of someone (2) who can inflict harm on one who fails to comply. Law is located in the will of one person to move the will of another by threat of harm. Jeremy Bentham, Austin’s mentor, defined law as “an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state.”11 Bentham’s formulation (“or adopted by”) indicates that politics has been transformed into the game of “capturing” the will of the sovereign (the levers of power). The sovereign need not even “conceive” of the new law or in fact desire it. If the sovereign can be made to “adopt” it, the new command becomes law. Lawmaking is the art of persuading the sovereign to adopt one’s particular desire. Thomas Hobbes expands this notion of human control over law to the very idea of justice itself. Hobbes argues: “We ourselves make the principles—that is; the causes of justice (namely laws and covenants)—whereby it is known what justice and equity, and their opposites injustice and inequity, are. For before covenants and laws were drawn up, neither justice nor injustice . . . was natural among men.”12 Even positivists who have developed more nuanced positions beyond this blunt Austinian variety, such as H.L.A. Hart and Joseph Raz, are still faced with this strong dependence on the will to legitimize law. Although attempting to tone down the raw power element of this system by explaining how the sovereign (the dispute resolver) is bound by rules as to the way disputes are settled,13 they never offer criteria for establishing, evaluating, and changing these primary or system rules, which ultimately rest on the will of the sovereign.14 The will of the personal sovereign has been abstracted into impersonal concepts or systems (Hart’s “Rule of Recognition” or Kelsen’s “Basic Norm”), but even if the collective will of a society over time replaces Austin’s personal sovereign, the basis of the system is still unrestrained volition. The offspring of these theories is law as power politics. Pope Benedict XVI summarized the contemporary effect of the raw conception of power at the heart of modern law thus: “Today, a positivist conception of law seems to dominate many thinkers. They claim that humanity or society or indeed the majority of citizens is becoming the ultimate source of civil law. The problem that arises is not, therefore, the search for good but the search for power, or rather, how to balance powers.”15
For our purposes, two consequences follow from this concept of law. First, it does not contain a requirement that this wish or desire be reasonable to become law. There is no quality other than the desire itself being expressed by the right person or persons to conclude that the utterance is a law. A more refined positivist might insist that an unreasonable law is a bad law but it is a law nonetheless. Second, if one having power to use force utters the wish, it is law regardless of the command’s content. Hart attempted to soften this brute positivism by arguing that not everybody has the power to issue commands backed by force. To have this power, the one speaking must be authorized to do so through some other law (Hart’s Rule of Recognition, which tells us who has the power to command us to obey their wishes).16 Yet, this refinement only obscures the problem. It leads to an infinite regress. Who gave the one who commanded the Rule of Recognition the power to do so? Who gave that person the power to command, and so on and on? To avoid infinite regress, Hart merely assumes that a Rule of Recognition exists within every legal system, and whatever one or more people it designates as having the power to command can make law. We find this assumed Rule of Recognition by identifying whomever we would recognize as the one holding the power viewed from within that legal system.17 More importantly, any restraint the Rule of Recognition places on whose command counts as law does not restrict the content of the command. Even for Hart, law is a closed system that is caught within the internal point of view.
In his attempt to return normativity to law and transform classical positivism into modern positivism, Hart struggles to distinguish three things from law properly speaking.18 First, Hart is haunted by the need to distinguish law from the command of an armed gunman. We may comply with a gunman’s command, but we would not consider it law or normatively binding. Hart eventually uses procedure to distinguish the two: the posited Rule of Recognition tells us the gunman’s order is not law (until the Rule of Recognition is changed to declare the gunman capable of making law). (In contrast, classical natural law uses the concept of authority flowing from the eternal law to provide a clear distinction between the gunman’s order and law.) To remain faithful to positivism, Hart struggles to maintain law’s normative claims while arguing that law is separate from morality. At one point, Hart claims that “law is best understood as a ‘branch’ of morality.”19 This branch theory understands law and morality as two separate normative systems. Normativity returns to a positivist conception of law, but law is kept completely separate from morality, which is only analogous to law as a different normative system. Morality and positive law are not two independent normative systems but, rather, they are both particular determinations of general principles of natural law. They are both part of the same normative system founded on eternal law. The distinction between law and morality (as opposed to separation) lies merely in the identity of the person entrusted with making the determination and the jurisdictional scope of that determination: individuals or personal superiors, as opposed to governors of political communities. Finally, Hart seeks to distinguish law from rules, particularly developing customary rules of a community. Hart struggles to define rules in a way that distinguishes rules of law from rules as predictions of future behavior (i.e., as a rule people go to the cinema once a week), rules of games, rules of etiquette, and rules of morality.20 Hart experiences a problem defining the concept of a rule. He explains that definitions are usually a statement of a genus and the differentiae distinguishing the thing defined. Yet, for Hart, this method does not work because it is not clear to which genus these different types of rules belong.21 Once the full architecture of the cosmological legal system is explored, this difficulty will be solved. Rules as a principle of human action will emerge as a genus to which different types of rules belong. Legal rules are a species of rules demonstrated or determined from the precepts of the natural law. All rules in some way are related to natural law. Even rules of a game are particular determinations of just treatment of people’s interaction in a social context. They are not legal rules, because they are determined by those devising the game and not political authorities.
Having severed the ontological connections between law and morality, even modern positivism places the origin and meaning of law solely within human control. Legal systems are self-referential and closed within the will of whoever, from the internal point of view, is recognized as having the power to command and harm. Utterances that purport to be obligatory as law can only be judged to be such on the basis of other commands within that same closed system. Purported laws can only be denied legal validity on the basis of procedural flaws or inconsistency with other commands. The substantive content of a command is irrelevant to it being law. Using our human reason, we might judge a particular law to be harmful or unjust. It may command something we know to be unacceptable. Yet, it is still a law we are legally obligated to obey (even if we are compelled in fact to break the law sometimes). Hart and Kelsen solve the ontological problem by simply avoiding the question and pushing it outside of the internal point of view of the legal system. Hart’s Rule of Recognition or Kelsen’s Basic Norm are merely assumed to exist without any explanation of their origin.
Legal positivism deeply affects how people think about law. First, we tend to shut down our reason when considering the law. The law simply is; it does not have to be reasonable. It simply exists, and we must unquestionably obey even if we disagree with its content—unquestionably because there is no purpose to questioning it. The only questions we entertain are these: Was the law made by the correct person? Can we persuade the correct person to change the law in the future? Did it come from Congress? Was it signed by the president? Is it permitted by the Constitution? If there is no procedural flaw, we stop questioning the legally obligatory nature of the utterance. Our only option is to lobby those in power to change the law to something else. In the interim, if we find the law to order something unjust, we may disobey but we accept that we have “broken the law” and must accept the consequences of doing so as oxymoronically unjust but legally justified.
Most people have come to understand law as only the specific rules promulgated by the recognized authority. The law is confined to the texts produced by the correct persons. The only contexts for a law are other promulgated texts. Law has become synonymous with texts. This has led to an explosion of particular laws. Since nothing can supplement the law, the legislator is tempted to say everything. Legislatures try to write texts to cover every conceivable situation. To make certain a law is written for every scenario, we write more and more laws. The understanding of law as text has resulted in the depersonalization of law. Law, although seen as a product of human volition, is not understood as the product of any actual person. This tendency is exacerbated by prevalent forms of government that disperse lawmaking power throughout many populated institutions, parliaments, congresses, or administrative agencies.
These consequences have produced a dangerous legalism in our culture. We focus on the strict letter of the promulgated text, shutting down our reason or at least limiting its purview. We can also become acculturated to living with contradiction. In a legal positivist world, the law can, and does on occasions, contradict reason and what we perceive to be just. We can be presented with conflicting obligations, legal and moral. The two are not necessarily reconcilable. Even if the pull of our conscience requires we disobey a particular law (that commands something wrong, for example), we accept that we have broken the law and deserve any legal consequences. We do not conclude that the text purporting to be law is not binding as law and that it would be unjust to punish our apparent disobedience. As long as it is written in a book and we can prove its legal genealogy, its obligatory force is unquestioned.
Politicians should not be surprised at the lack of “bipartisanship” or “cooperation” in our political system. Under positivism, politics is merely the combat to see who can control the “intention of the legislator.” Lawmaking and politics are about power, not justification. Democrats or Republicans, as the case may be, can pass whatever laws they want because they have a “mandate” to do so in conquering the will of the legislature by winning an election. This is no different from the victorious prince claiming the right to revise the laws of the vanquished territory according to “his” will. The principles of legal positivism apply equally to the “rule of law,” the procedural system for controlling the will of the legislator. Thus, when a desired result is not obtained, the power seekers need only change the rules of the game or the existing “rule of law” so that they can effect their will. Thus, when the proposed EU constitution was voted down in France and the Netherlands,22“the will of the people” was not allowed to stand as the rule of law. The will of the governments of the member states simply dismissed the need for a popular referendum to enact the constitution and simply amended existing treaties to accomplish the same changes voted down in France and the Netherlands. According to a UK Parliament research report: “Under the Lisbon Treaty most of the text of the Treaty Establishing a Constitution for Europe concluded in 2004 (referred to here as the EU Constitution) will be incorporated as amendments to the existing Treaties.”23 A document with essentially the same provisions was reproposed as amendments to existing treaties, thus avoiding a vote in all countries except Ireland.24 When elections produce an undesired result, the rules of the game are simply changed. As Pope Benedict XVI has remarked: “It is necessary to go back to the natural moral norm as the basis of the juridic norm; otherwise the latter constantly remains at the mercy of a fragile and provisional consensus.”25
This paradigm of law as power is not the only available paradigm. Other structures have and can be utilized. Classical natural law jurisprudence encapsulates the act of making human law within a broader and more complex system. For thousands of years, from ancient Greek philosophers through Roman and medieval jurists, understanding of this vast system developed, and the interaction, relationship, and interdependence of the components of its structure have been elucidated. We must rediscover these lost threads of the tradition and weave them back into a richer, deeper, broader, and ultimately more accurate understanding of the thing we call “the law.”
(To be continued).
2. See Philip Soper, “In Defense of Classical Natural Law in Legal Theory: Why Unjust Law Is No Law at All,” Canadian Journal of Law and Jurisprudence 20, no. 1 (2007): 204– 6.
3. Quod principi placuit, legis habet vigorem; Justinian, Digest, in Corpus Iuris Civilis, ed. Joannis L. G. Beck (Leipzig: Carolum Cnoblock, 1829), 1.4.1 (hereafter Digest), http://www.archive.org/stream/corpusiuriscivi00beckgoog#page /n2/mode/2up. To be fair to the ancient Roman legal theorists, this phrase was qualified by many other legal concepts, not least of which was the natural law. Thus, “what pleases the prince” was not always law but only what legitimately pleased the prince. Classical positivism rejects all of these qualifications and accepts this principle as an absolute.
4. Princeps legibus solutus est; Justinian, Digest 1.3.31.
5. Abraham Lincoln, “First Inaugural Address” (March 4, 1861), in The Speeches of Abraham Lincoln (London: Chesterfield Society, 1908), 310.
6. Alexander Pope, “An Essay on Man,” in The Poems of Alexander Pope: A Reduced Version of the Twickenham Text, ed. John Butt (New Haven, CT: Yale University Press, 1966), 1.10.294.
7. See John Austin, The Province of Jurisprudence Determined and Uses of the Study of Jurisprudence (New York: Noonday Press, 1954), 10– 13.
8. Ibid., 13.
9. Ibid., 13– 14. Emphasis in quoted material is in the original throughout the book, unless I indicate it as mine.
11. Jeremy Bentham, Of Laws in General, ed. H.L.A. Hart (London: University of London Press, 1970), 1.
12. Thomas Hobbes, De Homine, trans. Charles Wood, T.S.K. Scott-Craig, and Bernard Gert (Indianapolis: Hackett, 1991), 10.5, quoted in Ted H. Miller, “Thomas Hobbes and the Constraints That Enable the Imitation of God,” Inquiry 42, no. 2 (1999): 165.
13. See, e.g., H.L.A. Hart, The Concept of Law (New York: Oxford University Press, 1961), and Joseph Raz, Practical Reason and Norms (London: Hutchinson, 1975).
14. For a discussion of how modern positivism still retains an aspect of “might makes right,” see Roger Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition (Cambridge, MA: Harvard University Press, 2005), 5 (associating legal positivism with the view that law is “nothing but a willful decision” and with the idea that “might makes right”).
15. Benedict XVI, “Address to Members of the International Theological Commission” (October 5, 2007), https://w2.vatican.va/content/benedict-xvi/en /speeches/2007/october/documents/hf_ben-xvi_spe_20071005_cti.html.
16. Hart, Concept of Law, 97– 107.
17. Ibid., 99.
18. Ibid., 6– 13.
19. Ibid., 7.
20. Ibid., 8– 10.
21. Ibid., 15.
22. Elaine Sciolino, “French Voters Soundly Reject European Union Constitution,” New York Times, May 30, 2005, http://www.nytimes.com/2005/05/30/world /europe/french-voters-soundly-reject-european-union-constitution.html?_r=0; Marlise Simons, “Dutch Voters Solidly Reject New European Constitution,” New York Times, June 2, 2005, http://www.nytimes.com/2005/06/02/world/europe/dutch -voters-solidly-reject-new-european-constitution.html.
23. Vaughne Miller and Claire Taylor, The Treaty of Lisbon: Amendments to the Treaty on European Union, House of Commons Research Paper No. 08/09, January 24, 2008, http://researchbriefings.files.parliament.uk/documents/RP08 -09/RP08-09.pdf.
25. Benedict XVI, “Message for the Celebration of the World Day of Peace”