Natural Law's Modern Cousin Germain: Law's Relationship to Law

IN DISCUSSING THE RELATIONSHIP BETWEEN positive human law and the natural law, Finnis tries to fit in his theory of the relationship with traditional understandings of that relationship. It is not entirely convincing that with the Finnisian theory of natural law we are dealing with the same thing as the traditional, classical theory of natural law. It is in this nexus between human law and the natural law were Finnis's theory seems to depart, to degree if not entirely in kind, with the notions reflected in every theory of natural law which is that the human law is derived from and finds it source in the natural law and, ultimately, the eternal law itself. As an example of this traditional teaching, Finnis cites the 16th century words of St. Germain's Doctor and Student:

In every law positive well made is somewhat of the law of reason . . . and to discern . . . the law of reason from the law positive is very hard. And though it be hard, yet is much necessary in every moral doctrine, and in all lows made for the commonwealth.

NLNR, 281 (quoting D&S, I, c.4). This doctrine of St. Germain's is traditional. It is essentially identical with that of St. Thomas Aquinas: Omnis lex humanitus posita intantum habet de ratione legis inquatum a lege naturae derivatur. Every human law posited by man has the character of law insofar as it is derived from the eternal law. S.T. IaIae, q. 95, a. 2, c.

The relationship between positive law and natural law is most evident in certain laws that tightly bound with precepts of the natural law law. An example of this may be the criminal law against murder. St. Thomas would say (S.T., IaIIae, q. 95, art. 2, c.) that such a positive law is related to the natural law "by a process analogous to deduction of demonstrative conclusions from general principles," NLNR, 281, and consequently part of these laws' force comes from the natural law. Hooker, for his part, calls these sorts of laws "mixedly human" because they are a sort of admixture of human and natural law. NLNR, 281. (On the Laws of Ecclesiastical Polity, I, c. 10, sec. 11). Finnis calls St. Thomas's insight as "fundamentally correct, but vaguely stated and seriously underdeveloped." NLNL, 282. He finds Hooker's expansion not useful.

Finnis in some ways seems embarrassed by the traditional doctrine. Finnis avoids the term "natural law," and instead explores the question as one being the "relationship(s) between the particular laws of particular societies [i.e., particular positive laws] and the permanently relevant principles of practical reasonableness." NLNR, 281. He observes several qualities of human positive law that distinguish it from natural moral law:

1. Human legislation is generally written in propositional or indicative statements, not in hortatory or normative statements. The natural law would urge in the form of a command: "Do not kill!" State law would generally state it in a manner thus: "a person commits the offense of murder if he intentionally or knowingly causes the death of an individual." Finnis sees this characteristic as being one related to the acknowledgment that what's involved in the passage of law is the "pattern of a future social order," and that the language attempts "to reproduce that order." NLNR, 283.
   
2. Human law adds another level of reasoning since the "legal rendering of social order" provides the matrix for "a new train of practical reasoning." The law-abiding citizen therefore has more than the natural law to lean on; he may also lean upon the human law itself as defining for him the moral law in any given instance. He need not each and ever instance go back to fundamental principles, but may rely on the "artificial reason" of the law, as Edward Coke so adequately described it. Not only is it a new way of thinking, but it also gives a "distinct new motive for the law abiding citizen."
   

The example of murder is, of course, an easy one to work with because it is so intertwined with an intrinsic moral precept commonly and easily recognized that we ought not to take the life of someone who is innocent. The interrelationship between positive law and natural moral law (or the requirements of practical reasonableness) appears much more tenuous, perhaps even difficult to see when we deal with laws that seem to involve less strictly moral subjects, more jejune, even arbitrary decisions (such as that every-popular example of whether the state ought to decide whether drivers should drive on the right side or the left side of the road). The former type of laws (such as the laws against murder) Aquinas saw as derived from the natural law "like conclusions deduced from general principles," where these other types of laws were "like implementations [or determinations, or concretizations: the Latin term used by St. Thomas is determinationes, and it has no English equivalent by which it may be translated] of general directives."* NLNR, 284. Some of these determinationes are indeed so far-removed from, or only so-obliquely or tangentially related to, their original natural law basis that they become, as it were, authoritative "wholly from human law," as St. Thomas would say, or are, what Hooker calls "merely human laws." NLNR, 285.**

Perhaps the best way to understand the role of determinationes is to use the analogy of an architect. An architect knows that a house must have a means of entry and exit, a door, and knows further that such door must have some means of opening and closing it, say a knob, or handle, or similar device, and some means of security, a lock, deadbolt, chain, etc., to prevent those who we do not want opening it to open it. The determinationes or application, concretization, instantiation, or implementation of these general requirements and the freedom of action allowed an architect is virtually limitless yet in each and every instance he has remained faithful to the general requirements to have an instrument to allow opening and closing the door and unwanted access prevented.

"Determinationes" of "Door Entry Devices"
Should Human Law Have Less Freedom?

Why should the art of human law be any different from the art of architecture? Why should it trouble us that human laws can display such diversity and imaginative creativity, adaptability and arbitrariness, uselessness and utility, artistic beauty and simplicity, sophistication and intricacy and primitiveness and yet remain intrinsically faithful to, based upon, or tied with the natural law as determinationes? Indeed, no natural law theory is concerned with limiting the exercise of human freedom and ingenuity in the passing of laws, but is concerned with providing them legitimacy. "The tradition of natural law theorizing is not concerned to minimize the range and determinacy of positive law or the general sufficiency of positive sources as solvents of legal problems." NLNR, 290. Essentially, natural law does nothing other than insist that human laws ought to be human, and not inhuman. The laws ought to be in conformity with nature, and not disharmonious with it. The laws ought to be in accord with reason, and not unreasonable. Such constraint is hardly a constraint. To say that laws ought not be inhumane, that laws ought to be consonant with the deeply-felt needs of human nature, that laws ought to be reasonable constrains only those (and there are unfortunately sufficient of them around in history and at present) who wish to impose inhumane, unnatural, vicious, and irrational laws upon their fellows.

But ordinarily, in the area of "second order" decisions, the freedom of action is truly marvelous. How much of each handle or its ornament is due to the original need for a means of entry and exit, and how much is just sheer human ingenuity? It some cases it is hard to tell apart. In every case, however, there is the fundamental requirement that must be complied with, and the human ingenuity and independence that is--within the fundamental requirement that a door entry device comply with its nature--entirely free.

So the law that we drive on the right side of the road at at the maximum speed of 70 mph may be viewed in two ways. First, from the principle that gives it its force. Second, from the human component that fleshes the general principle out.

There is a sense in which . . . the rule of the road gets 'all its force' from the authoritative custom, enactment, or other determination which laid it down. For until the stipulation 'drive on the [right], and at leass than 70 miles per hour' was positived . . . there was no legal rule of the road . . . . But there is also a sense in which . . . the rule of the road 'gets all its normative force' ultimately from the permanent principles of practical reason (which require us to respect our own and others' physical safety) in combination with non-posited facts such as that traffic is dangerous and can be made safer by orderly traffic flows and limitation of speed . . . .

NLNR, 285.

A similar area is the institution of private property. Private property is a requisite to the efficient use of material goods necessary for human flourishing. In a general sense, the institution of private property is one of natural law, and so it participates even in the eternal law. But there will be a whole slew of subordinate laws that will address the definition, protection, transfer of such property rights, and these latter--all of which will be at the level of the determinationes will be at the discretion of properly constitute authorities and obtain their force from them. For example, whether a transfer needs to be filed at some public office, or notarized, or whether some property rights may be lost by adverse possession for a requisite number of years, and under what circumstances, etc. are determinationes left at the liberty of the law-making authorities.

Thus, the legislative (and to a limited extent--in the interstices of the law--even the judicial) will be one focused on the determinationes, and only rarely will their be the need to focus on the "first order" questions. The "second order" questions will itself be governed by rules, propositions, principles, and maxims, some of which are closely-tied to "first order" questions (e.g., the prohibition of ex post facto laws), some of which are requisite to a reasonable legal regime (i.e., the Rule of Law) (e.g., legislative intent is derived from the words of the statute), some of which are principles of practical prudence and experience (e.g., stare decisis: laws ought not to change without good reason).

In sum: the derivation of law from the basic principles of practical reasoning has indeed the two principal modes identified and named by Aquinas; but these are not two streams flowing in separate channels. The central principle of the law of murder, of theft, of marriage, of contract . . . may be a straightforward application of universally valid requirements of reasonableness, but the effort to integrate these subject-matters into the Rule of Law will require of judge and legislator countless elaborations which in most instances partake of the second mode of derivation. This second mode, the sheer determinatio by more or less free authoritative choice, is itself not only linked with the basic principles by intelligible relationship to goals . . . which are directly related to basic human goods, but is also controlled by wide-ranging formal and other structuring principles (in both first- and second-order form) which themselves are derived from the basic principles by the first mode of derivation.

NLNR, 289.
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*S.T. IaIIae, q. 95, art. 2, c.
**S.T. IaIIae, q. 95, art. 2, c. (ea quae sunt secundi modi, ex sola lege human vigorem habent); Laws of Ecclesiastical Polity, I, c. 10, sec. 11.