Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Monday, March 14, 2011

Natural Law's Modern Cousin Germain: Introduction

JOHN FINNIS IS WITHOUT DOUBT a premier advocate of the modern natural law theory, a theory previously described in this blog as the "integration" theory of natural law.* The Australian-born Finnis, a lawyer (admitted to the English bar as a member of Gray's Inn), an Oxonian scholar of St. Thomas, and Professor of Jurisprudence fashioned and promoted a theory of natural law which has had significant impact on Academia, both Catholic and non-Catholic. Its most articulate advocate in the United States is Robert C. George, a professor at Princeton. There is much scholarship and much good in this theory, but it is not in any sense a "classical" or Aristotelian/Thomistic theory of natural law. Essentially, it assumes some of modernity's philosophical presuppositions, and from those attempts to fashion a theory of natural law that may resonate to moderns in the way, perhaps, St. Thomas's theory would have resonated to his contemporary Europeans or Cicero's to his fellow Romans. The theory is based upon the work of moral theologian Germain Grisez, as Finnis himself acknowledges in the Preface to his work in his magnum opus Natural Law and Natural Rights:** "My debt to Germain Grisez is similarly acknowledged . . . and the theoretical arguments [in fundamental sections of my book] are squarely based on my understanding of his vigorous re-presentation and very substantial development of the classical arguments on these matters." NLNR, vii. It is for this reason that the series is denominated "Natural Law's Modern Cousin Germain."***

John Finnis begins NLNR with human law, its reality, its ubiquity, and its necessity:

There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy.

NLNR, 3. What are those goods? What are those requirements of practical reasonableness? The answer to those two questions are at the heart of the Finnisian project. Finnis' project is not analytic, not descriptive, not even scientific in the sense of empirical. It is a theoretical work, one that seeks to get behind the varied conceptions of law and even more variegated legal systems and practices. It is a jurisprudential project, one that aims to define what law is, to get behind the taken-for-granted definitions of law by analytic and positivist jurists to which we are heir, such as Bentham (1748-18329, or John Austin (1790-1859), or Kelsen (1881-1973),† and even more modern broadening versions, such as those advanced by H. L. A. Hart, Joseph Raz, and Lon Fuller.

The influential legal philosopher H. L. A. Hart (1907-1992), author of The Concept of Law, and Professor of Jurisprudence at Oxford, retained while critiquing the positivism of Austin, amplifying it to "fit the [functional] facts" but retaining the "fundamentally descriptive theoretical purpose," emphasizing its functional aspect. NLNR, 6. For Hart, law is "to be described in terms of rules for the guidance of officials and citizens alike." A legal system is one where "secondary rules" have come about to remedy the limitations of the "primary rules" of a pre-legal regime. It is a nominally richer understanding of law.

John Finnis

Joseph Raz (1939-), one-time student of Hart, Professor of Jurisprudence, and author of multiple books on legal philosophy, is another modern advocate of legal positivism. Focusing on law as a method or technique for resolution of disputes by means of norms which provide guidance to "primary institutions" through "binding applicative determinations," which limit discretion or freedom of decision, and which "binding applicative determinations" also serve to guide the behavior of those who fall under the evaluative or judicial auspices of those "primary institutions." NLNR, 7 (quoting Raz, Practical Reason). Law may be said to be "the supreme guardian of society." NLNR, 7 (quoting Raz, Practical Reason). Law is still seen in its functional role.

Lon Fuller (1902-1978), another legal philosopher, focused on the connection between law and morality, particularly in his book The Morality of Law. Fuller outlines eight defects which, if any of them are in a legal system, make it bound to fail: (1) lack of rules or law leading to ad hoc or inconsistent and arbitrary adjudication; (2) failure to promulgate or publicize law; (3) vague, unclear, or obscure laws that are impossible to understand; (4) legislation that is post facto or retroactive; (5) laws that are contradictory; (6) laws that that are not possible of being obeyed; (7) frequent, unstable, and ever-changing laws; and (8) a split or divergence between legislation and the execution of laws or adjudication.

Though the work of Bentham and Austin has therefore been fleshed out by Kelson, Hart, Raz, and Fuller and others, the enterprise remains "descriptive," seeking by design to "identify law on the basis of non-evaluative identifying criteria." NLNR (quoting Raz, Practical Reason). The descriptions differ, but the aim to describe and nothing else is shared:
[T]he differences in description [among the advocates of legal positivism] derive from differences of opinion, amongs the descriptive theorists, about what is important and significant in the field of data and experience with which they are all equally and thoroughly familiar.
NLNR, 9.

These early legal positivists, as Finnis rightly points out, were hampered by a desire to restrict the word law to a univocal sense, completely disregarding the analogical breadth of the concept of law which was comprehended by the word. The concept of "law" is much broader, much richer, much more multiplicitous and variegated than Bentham, Austin, Kelsen or other positivists or analytic jurists would have us think. The word and hence concept of law is used in a whole panoply of ways, and it means means similar, but not the same thing in any of these manners used. In some respects the meaning is the same, in other respects they are different. This is exactly how analogical thinking goes. But the "naïve methodologies" of Bentham, Austin, and Kelsen excise out of our understanding of "law," such concepts as "law of nature," "moral law," "sociological law," "law of physics," "international law," "eternal law," "law of grammar," etc. The discomfiture of these with the analogical breadth of the concept law is what seems to define these narrow-minded men who enjoyed using narrow words to narrow their discipline. They did not behave much differently, or perhaps not less foolishly, than a man who is so focused on the pie's crust, that he forgets the eat the filling. Though Hart, Raz, and Fuller softened the notion of "law" so that it was a little less univocally applied, it remained unduly restrictive. For this reason none of the descriptivists understood the natural law to be law. They all wanted to separate out and distinguish law from morality, as if the latter were not law. Indeed, as Finnis notes, "Bentham, Austin, Kelsen, Weber, Hart, and Raz all published stern repudiations of what they understood to be the theory of natural law; and Fuller carefully dissociated himself from that theory in its classical forms." NLNR, 18. By restricting their concept of "law" to such a narrow sliver, they lost sight of the entirety of the phenomena which is law.

Relying on Aristotle's insights, Finnis suggests that law is a broader concept that the descriptivists have made it, that there is a "focal meaning" or "central case" of law, the law simpliciter or "without qualification," and then there is law "in a sense," or "in a manner of speaking," or "in a way," law secundum quid. The concept of law is not univocal, but analogical. There is "law," at least law in a manner of speaking, in both the center and in the peripheries. The problem (largely unacknowledged) the positivists or declarativists have is in defining the central case from the more broad case. How is it that they distinguish "law" in the central case from "law" in the more peripheral case?

Obviously they need to select definitional criteria, usually be stressing features they consider important and significant. But in so doing they are importing into the task their own personal predilections under the guise of being objective. H. L. A. Hart, for example, uses what he calls the "internal point of view," that is, the point of view from the practitioners of law. Raz originally adopted what he called "the ordinary man's point of view," but later seems to have taken "the legal point of view," that is, the point of view of those "who believe in the validity of the norms and follow them." (NRNL, 12-13, quoting Hart and Raz). These criteria, Finnis suggests, are "unstable and unsatisfactory," if for no other reason than because "it involves a refusal to attribute significance to differences that any actor in the field (whether the subversive anarchist or his opponent the 'ideal law abiding citizen') would count as practically significant." NRNL, 13 (quoting Raz).

What Finnis suggests is the following central case:

If there is a point of view in which legal obligation is treated as at least presumptively a moral obligation (and thus as of 'great importance' and 'at the cost of sacrificing considerable personal interest'), a viewpoint in which the establishment and maintenance of legal as distinct from discretionary or statically customary order is regarded as a moral ideal if not a compelling demand of justice, then such a viewpoint will constitute the central case of the legal viewpoint.

NLNR, 14-15. For "moral," Finnis understands in conformity with "practical reasonableness."†† But the central case must take the viewpoint "of those who not only appeal to practical reasonableness but also are practically reasonable, that is to say: consistent; attentive to all aspects of human opportunity and flourishing, and aware of their limited commensurability; concerned to remedy deficiencies and breakdowns, and aware of their roots in the various aspects of human personality and in the economic and other material conditions of social interaction." NLNR, 15. This focus, Finnis believes, removes or at least ameliorates the otherwise subjective component that exists in descriptive jurisprudence, since the use of practical reasonableness may allow the descriptive jurist to be "reflective and critical" and so identify his culture's "practical 'prejudices' into truly reasonable judgments about what is good and practically reasonable." NLNR, 17.
A sound theory of natural law is one that explicitly . . . undertakes a critique of practical viewpoints, in order to distinguish the practically unreasonable from the practically reasonable, and thus to differentiate the really important from that which is unimportant or is important only by its opposition to or unreasonable exploitation of the really important. A theory of natural law claims to be able to identify conditions and principles of practical right-mindedness, of good and proper order among men and in individual conduct.
NLNR, 18.

One has to admire Finnis's nettle and his grit. From within the ramparts of analytical jurisprudence, he raises a banner of revolution and throws in what some would laugh off as a squib. To a large degree, his audience was close-minded, arrogant, vituperative, dismissive toward any theory of natural law.††† Yet Finnis confronted them, threw in his squib, and the whole academic world was surprised at the conflagration it started.

*See By Nature Equal: Human Equality and the Natural Law, Last Possible Ally Fails.
**John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) (hereinafter NLNR).
***A play on words: cousin germain is French for "cousin german," a term used for first cousins, i.e., children one's parent's brother or sister. Is is therefore referent to the bonds between the modern theory and the classical Aristotelian/Thomistic theory, the latter being more in line with traditional Catholic teaching. Germain Grisez has generously made his three volumes of his moral work, The Way of the Lord Jesus, available online.
†Jeremy Bentham defined law as "an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state." Jeremy Bentham, Of the Limits of the Penal Branch of Jurisprudence (ed. Phillip Schofield) (Oxford: Oxford University Press, 2010), § 30, p. 24. In his Province of Jurisprudence Determined, John Austin advocated a definition of law that was similarly based upon will: law, he suggested was nothing but the command of the sovereign backed by sanction and enjoying the habit of obedience. Hans Kelsen defined law as "the social technique which consists in bringing about the desired social conduct of men through the threat of a measure of coercion which is to be applied in case of contrary conduct." Hans Kelsen, General Theory of Law and State (trans., Anders Wedberg) (Clark, N.J.: The Lawbook Exchange, Ltd. 1945), 19.
††One will note the total absence of any reference to human nature. The theory thus seeks to rely on a sort of Kantian or Enlightenment standard of "pure reason." There is also no speculative or theoretical (metaphysical) component to this standard, being entirely one based upon practical reason alone. Finnis states in no uncertain terms that in his theory, "there is no question of deriving one's basic judgments about human values and the requirements of practical reasonableness by some inference from the facts of the human situation." NLNR, 17. This is a rejection of deriving human values from human nature. Finnis accepts the Humean critique, and thus seeks to work around it.
†††In his On Law and Justice, the Danish jurist Alf Ross, for example, banishes natural law "into oblivion along with other myths and legends of the childhood of civilisation." Alf Ross, On Law and Justice (Clark, N.J.: The Lawbook Exchange, Ltd. 2004), 258. In the original German, Hans Kelsen in his Allgemeine Staatslehre, refers to the natural law "naivety or arrogance." The passage was omitted from the English translation. NLNR, 25, n. 4. The stage for such deprecations had already been sent by Bentham, who called the natural law "nonsense on stilts," and by the likes of Justice Oliver Wendel Homes who called natural law (in the form of implicit in common law) a belief in a "brooding omnipresence in the sky"

No comments:

Post a Comment