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.

Friday, April 15, 2011

Natural Law's Modern Cousin Germain: Rule of Law: What It's Not

THE RULE OF LAW IS GENERALLY CONSIDERED TO BE a benefit for life within community. The idea is that within such a thing as a "Rule of Law," the individual has the legitimate opportunity to autonomy in a true sense in that he avoids being made to live his life "for the convenience of others." He is "allowed and assisted to create a subsisting identity across a 'lifetime'." It allows individuals to be "selves," according to Finnis. NLNR, 272. This seems like a rather vague and unsatisfying reason or justification for the Rule of Law. But the general concept that Finnis appears to be advocating is one where the Rule of Law is something that exists when law is maintained as a public thing, a res publica, and not a vehicle for private benefit or private gain. The Rule of Law allows fair and equal social or communal environment where people may share in the common life in a manner which is predictable, which is reasonable, and which promotes peaceful interchange and exchange. There will be a fair reciprocity between men and men, and men and the State. The aim is for all to be given their due, and none less or none more than their due, and so the "Rule of law is thus among the requirements of justice or fairness." NLNR, 273.

The Rule of Law, however, has limited substantive flesh. It is large a creature of procedure. Due procedure, due process, even if procedural provides great advantage and is a great good. But it is instrumental, not fundamental. As a consequence, the "Rule of Law" could, at least notionally though perhaps implausibly, exist within a larger framework of unjust substantive law. A very fine pen or a nice sharp knife can be used by a tyrant as well as a beneficent ruler.

Our Lady of Justice (La Madone de la Justice)
by Bernardo Strozzi (1581-1644) (Louvre)

Although it is speculatively intelligible that a tyrant would subject himself to the "Rule of Law," it is highly unlikely in practical fact. "A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesi, hold in contempt." NLNR, 273. In point of fact, the tyrant would find the "Rule of Law" irksome, limiting, constraining, and not likely something that fits in with his plan. In other words, the "Rule of Law" would work at cross-purposes to the tyrant's larger goals which would contradict the common good and would serve some ideology, some private good if nothing other than his vanity or lust for power, something, in any event, other than the common good. In other words, a tyrant is motivated by either "exploitative" or "ideological" motives, or a combination of both, and these do not readily lend themselves to expression or limitation by the "Rule of Law." At best, the tyrant will adopt the mantle of the "Rule of Law" for tactical and superficial reasons, as part of his "exploitative" or "ideological" regime. Finnis therefore doubts that, in practice, the "Rule of Law" is "simply an efficient instrument which, like a sharp knife, may be good a necessary for morally good purposes but is equally serviceable for evil." NLNR, 274. There is enough substantive flesh on the Rule of Law to make the very Rule of Law counterproductive to any tyranny. It is not merely instrumental so that it is equally available to tyrant and non-tyrant; in Finnis's view, it has a substantive anti-tyrannical end so that a tyrant is not likely to pick it up as part of his grab bag of instruments with which to express his iron rule.

There is, however, a danger to the Rule of Law which Finnis thinks warrants some focus, and it arises in contexts where a people may be accustomed to the Rule of Law so that it becomes an "ideological popularity," and not fully integrated with the larger framework of a "steadily grasp of practical principles." NLNR, 274. In other words, the danger arises when people speak the "Rule of Law" with their lips, but have lost the "Rule of Law" in their hearts and brains. In such situations it is possible that a small cadre of men, "conspirators against the common good," may use constitutional and legal forms to gain power so that there power grasp appear legitimate, has the form of good. "Thus the Rule of Law does not guarantee every aspect of the common good, and sometimes it does not secure even the substance of the common good." NLNR, 274.

Finnis observes that tyrants are unlikely to adopt the Rule of Law because it is "always liable to reduce the efficiency of an evil government, since it systematically restricts the government's freedom of manoeuvre." NLNR, 274. But if the Rule of law restricts a government's freedom of maneuver if the government tyrannical, then mightn't it restrict the government's freedom if the government is not? Can there by such a situation, Finnis asks, where "the genuine Rule of Law and authentic constitutional government are best served by departing, temporarily but perhaps drastically, from the law and the constitution"? It may be that unthinking application of the Rule of Law could, in an extreme situation, be unreasonable and against the common good, particular in the situation where there may be those who would exploit the protections of the Rule of Law for the very purpose of overthrowing it. If so, are there instances where one may transgress the Rule of Law be suppressed for the benefit of the Rule of Law?* The answer would appear to be "yes." In one sense, one departs the realm of human law to go the the law behind all law, the natural law, which provides that any law must have the common good in mind, and that law itself is ordered towards the benefit of the common good, and no law ought to be construed against the common good. Salus populi suprema lex.

In a sense, when push comes to shove, the weakness of the positivist philosophy appears naked in extremis. In an extreme situation, the positivist will have no justification for any act against the written law even if it is to protect that written law. This is so because the justification cannot be found by reference to any written law. In an extreme case, "the answer cannot be determined by any positive rule (written or unwritten) of the 'system'--not even a rule stipulating that the question is illegitimate." NLNR, 276. There are times when one must go outside the "system" to save the "system," namely when staying within the "system" would spell the demise of the very "system" itself. An advocate of the natural law, which conceding the ordinary importance of maintaining the positive law and its binding nature, will recognize that there are instances, be they rare yet they have historically not been non-existent, where the natural law is the final justification for ignoring human law for the sake of human law itself, that is more precisely for the common good of the society governed by it. The positivist may stew in his inability to articulate the justification. The natural law advocate would not. "There is," as Jefferson put it, a law of "higher obligation" to which we have recourse.

*In this United States, this was the question confronting Abraham Lincoln. On April 27, 1861, with an aim to controlling the secessionists in Maryland, Lincoln suspended the writ of habeas corpus. The suspension of the writ of habeas corpus gave the military the power to arrest and hold indefinitely anyone without charging them with any specific crime. The U. S. Constitution allowed for such extreme measure in the case of "in Cases of Rebellion," if the "public Safety may require it." U.S. Const., art. I, s. 9. It is a right which Chief Justice Salmon Chase once referred to as "the most important human right in the Constitution." On May 25, 1861, John Merryman, a lieutenant of the Maryland State Militia, was arrested by U.S. Soldiers under orders of the Union General Keim, and was confined to Fort McHenry, and held without charges and without right to legal counsel. In response to a petition brought by Merryman's lawyer, Chief Justice Taney (acting as circuit court judge) issued a writ of habeas corpus which was refused enforcement by the General George Cadwalader, commanding officer of Fort McHenry, who justified himself by the order of President Lincoln suspending the writ. Taney wrote an opinion Ex parte Merryman in which he held Lincoln's act of suspending the writ of habeas corpus unconstitutional since it required Congressional authorization. Lincoln ignored the Chief Justice's opinion, justifying himself before a Special Session before Congress on July 4, 1861: "Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?" (Writings of Abraham Lincoln, Vol 5, p. 117) This concept is frequently given voice in the rhetorical statement, "The Constitution is not a suicide pact." Thomas Jefferson enunciated the principle in this fashion: "A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, or saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means" (Letter of Jefferson to John B. Colvin, Sept. 20, 1810).

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