Natural Law's Modern Cousin Germain: Lex Iniusta

WHAT IS THE CENTRAL THEOREM of authority which forms the foundation of the apologia in support of the the proposition that an unjust law is no law at all? For Finnis, that central theorem is defined thus:

[T]he ruler has, very strictly speaking, no right to be obeyed; but he has the authority to give directions and make laws that are morally obligatory and that he has the responsibility of enforcing. He has this authority for the sake of the common good . . . . Therefore, if he uses his authority to make stipulations [laws, orders, judgments, etc.] against the common good, or against any of the basic principles of practical reasonableness, those stipulations altogether lack the authority they would otherwise have by virtue of being his.

NLNR, 359-60. What this means is that laws, or orders, or judgments, or other "stipulations," if made for partisan, private reasons or if made in clear excess of legal authority, or if they direct that things be done that are violative of fundamental human rights, or impose inequitable burdens on his subjects, these sorts of "stipulations . . . fail, of themselves, to create any oral obligation whatever." NLNR, 360.*

Finnis then sides with the "classical position." An unjust law does not bind in any fashion in the moral sense. "Such laws lack the moral authority that in other cases comes imply from their origin, 'pedigree', or formal source." NLNR, 360. So he joins the chorus led by St. Thomas who himself relies on St. Augustine: lex iniusta non est lex: virtutem obligandi non habet, an unjust law is not law: it has no power to obligate.** This is so even if the law comes from a legally authorized source, is enforceable by courts, and is spoken of by all as law.

This, however, takes us to another issue. When a law is perceived by the greater majority of the citizenry as not unjust, what is the person who believes the law grossly unjust to do? If he disobeys the law the injustice of which his fellows have difficulty seeing, will he not cause scandal? Will not that act of disobedience against an unjust law have the consequence of minimizing respect for law generally? "It may be," as Finnis notes, "that if I am seen by fellow citizens to be disobeying or disregarding this 'law', the effectiveness of other laws, and/or the general respect of citizens for the authority of a generally desirable ruler or constitution, will probably be weakened, with probable bad consequences for the common good." NLNR, 361.

If that is the situation, is there a collateral reason relating to the common good--apart from the unjust law that does not bind--which may bind us nevertheless not to disregard an unjust law but to mind it? Another way of looking at the situation is does one unjust law impugn the entire system? And if not, then does our obligation to the entirety of the system demand compliance with the law that--taken by itself--is unjust and therefore not morally binding? The answer is that it depends upon the circumstances which must be prudentially assessed:

This degree of compliance will vary according to time, place, and circumstance; in some limiting cases (e.g., of judges or other officials administering the law) the morally required degree of compliance may amount to fully or virtually full compliance, just as if the law in question had been a just enactment.

NLNR, 361. It is foreseeable that, in some circumstances, the conscientious (and rightly thinking) citizen and (a fortiori since the scandal is greater) the public official may be called not to act on his conscientious objection to one law in order to heed to what ought to be his conscientious attachment to the legal system as a whole:

So, if an unjust stipulation is, in fact homogeneous with other laws in its formal source, in its reception by courts and officials, and in its common acceptance, the good citizen may (not always) be morally required to conform to that stipulation to the extent necessary to avoid weakening 'the law', the legal system (of rules, institutions, and dispositions) as a whole. . . . [T]he citizen, or official, may . . . have the diminished, collateral, and in an important sense extra-legal, obligation to obey it.

NLNR, 362. In short, there are (possibly) moral reasons for obeying immoral laws.

Unless the law involves a direct offense against a basic human good (or a direct violation of the natural law or divine law), the problem of obeying (or disobeying) and unjust law under these circumstances is an exercise in prudence, and there are many factors to consider:

• The difficulty in identifying the injustice, the actual distribution of burdens, and the actual motivation of the authority passing the unjust law, and so determining the extent of injustice in the law in any particular circumstance (when are we informed enough of the law, the circumstances, and the costs and benefits?).
  
• The difficulty of the lawmaker and his need to compromise in the prudent exercise of his authority (when are we allowed to second-guess the legislature?).
• The difficult of assessing when the common good's requirement that one be obedient to the legal system "as a whole" is compromised by the unjust law, singly, or in common with other unjust laws (when is revolution, or less radically, civil disobedience against an unjust regime (or law) conscientiously permitted?)
• The difficulty of determining when it is proper to exercise conscientious civil disobedience for the purpose of spurring legal reform (when should I break a law for the purpose of raising the public awareness of a wrong?)
• The practical availability of intra-systemic channels for challenging the unjust law. (When should the courts or petition to the legislature be used as a an avenue for attacking an unjust law, and when is recourse to the courts excused?)
• The other obligations (institutional, familial) that may limit my freedom of action. (Does a man who has no obligation to wife and children have a different threshold for civil disobedience than a man who has no such obligations?)
  

The entire issue is "highly contingent upon social, political, and cultural variables." One should not "expect generally usable but precise guides for action in circumstances where the normally authoritative sources of precise guidance have partially broken down." NLNR, 362. One may quote here a text referred to be Finnis in his notes, a text by P. T. Geach (The Virtues) which supports the classical formulation but expresses it in a "vigorous modern formulation."

University people argue mightily about whether laws that violate these principles are laws or (as Aquinas called them) mere violence. Of course it doesn't matter whether you call them laws or not: the question is what consequences follow. An unjust piece of legislation exists de facto, as an institution: but it is no debt of justice to observe it, through it may be imprudent to ignore it. And though a private person should not lightly judge a law to be unjust, its contrariety to the Law of Nature and the peace and justice of society may be so manifest that such a judgment is assured. A sufficient mass of unjust legislation may justify a man in deciding that the civil authority is a mere Syndicate. I think Old John Brown rightly so judged about the slave-owning U. S. commonwealths of his time. Rebellion, however, is another matter, because the evils it may bring about are so great: whether Old John Brown judged rightly about this is a matter we must leave between Old John Brown and his Maker . . . .

NLNR, 367.

Old John Brown

And the most issues of obedience to an unjust law and lie within the discretion of prudence, yet there are situations where obedience to an unjust law is simply not allowed a man under any circumstances. There are some situations where exceptionlessly an unjust law must be disobeyed regardless of the cost to oneself. Put in secular terms, there are instances where "[i]t is universally true that one has an absolute (liberty-)right not to perform acts which anyone has an absolute (claim-)right that one should not perform." NLNR, 362. Put in religious terms, there are times when must obey God rather than men. (Acts 5:29) This is what the statement an unjust law is not law at all is supposed to encapsulate.

The statement an unjust law is not equivalent to law would seem to be one of two things. Either it is pure nonsense (being self-contradictory) or it is the "dramatization of the point" that an unjust law is not law in the focal or central sense, but law, at best, in a non-focal, "in a manner of speaking" sense. An unjust law is not law simpliciter, it is only law secundum quid.

It is interesting to observe that the classical formulation has been carelessly re-written by modern enemies of natural law so as to confuse categories. So citing largely H. L. A. Hart, Finnis summarizes the modern re-characterization as follows:

[M]odern critics [of the lex iniusta doctrine express the traditional doctrine in terms such as] 'what is utterly immoral cannot be law,' or that 'certain rules' cannot be law because of their moral iniquity', or that 'these evil things are not law, or that 'nothing iniquitous can anywhere have the status of law', or that morally iniquitous demands [are] in no sense law, or that 'there cannot be and unjust law.'

NLNR, 364 (quoting Hart passim) (emphasis in Finnis).

Note the re-characterization by Hart. As Finnis notes, the "tradition, even in its most blunt formulations, has affirmed unjust LAWS are not law." NLNR, 364. The classical tradition clearly recognized that the unjust law is law in one sense. But they also recognized that the unjust law is not law in another, more plenary sense.*** The tradition therefore recognized that unjust laws may be laws in a purely positive sense or they may be laws which of their own do not justify obedience, but as part of a greater legal system may demand conscientious obedience for collateral reasons (to avoid scandal, etc.). It is not unusual to "shift" senses of a term "within the space of a single sentence." The term "law" may be used to refer to its "intra-systemic expository viewpoint," or its "historical/sociological viewpoint," or its "viewpoint of unrestricted practical reasonableness." So the sentence's seeming contradictory nature disappears if one considers the subtility of the advocates' thought: A law from the viewpoint of unrestricted expository viewpoint is not a law from the viewpoint of unrestricted practical reasonableness.

With a little bit of good faith and a little bit of intellectual effort an understanding of the classical position is easily gained, and it is impossible to say that it is nonsense. The positivist's accusation against the exponent of the classical doctrine of natural law of falling headlong into a contradiction is clearly meritless. The argument is one born of ideology; it is a cheap shot; it is the result of intellectual torpor, carelessness, or just plain intellectual dishonesty. In a word, nonsense. Indeed, nonsense on stilts.
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*Finnis excludes motive from the formulation. Thus, a ruler can pass a law or make a judgment for improper motive which yet conforms with the interests of the common good. Also, those people unaffected by the distributive injustice of a law are not exempt from the moral obligation of that law. NLNR, 360.
**S.T. IaIIae, q. 96, art. 6, c.
***The traditional analysis is replete with words that made it clear that they used words in non-univocal senses; that is, that terms were frequently analogical or ambiguous and allowed for a wide sense of meanings, some precise some less so precise. So they distinguished between a term or concept simpliciter or vere or propie or in senso stricto (respectively, simply, true, proper, in a strict sense) and a term or concept in senso lato or secundum quid or secundum aliquem modum or secundum similutidnem or cum aliqua adjectione (respectively, in a loose sense, in a manner of speaking, in a certain mode, in a similar sense, with certain limitations).