From Law to Judgment: Lex Nuda to Lex Vestita

FROM REALM OF GENERALITY TO THE REALM OF PARTICULARITY, from the realm of law to that of judgment, from the realm of certainty and necessity to the realm of probability and contingency, from premise to conclusion, from principle to determination, from the realm of reason and logic to the realm of inclination, prudence, feel, and soundness. This is the path one travels in moving up from the naked law, the lex nuda, to the fully determinate judgment immediately prior to action, which, if it is lex, is a lex vestita, a law clothed by contingency and particularity, a law only in a manner of speaking, not a law strictly so called.

"A law is a rule and there is nothing more essential to it than the intelligible features implied in the concept of rule. These include universality and necessity." In fact, "if any law is so grounded in a necessary state of affairs as to be unqualifiedly immutable, this is a law in the most excellent sense of the term." Simon, 83, 85. But law is the beginning point, not the ending point of the decision behind a human act. At the end of the decision ladder, "[t]he individual case with which practical judgment ultimately has to deal may always be in some significant respect, unique, unprecedented, and unrenewable." Simon, 82. Thus, the last conclusion of the practical reasoning from law to judgment is "marked in essential fashion by features of strict singularity and of contingency." Simon, 82. And as we clamber up this decision-making ladder we move from the realm of law into the realm of judgment, from lex nuda to lex vestita, the latter, in some ways, being even the opposite of law. The final product is not lawless, but it is in some ways no longer law. "But in a judgment marked by singularity and contingency we recognize features opposite to those of law." Simon, 83. This shift, this change is remarkable.


In many of the decisions that confront us immediately prior to action here-and-now, hinc et nunc, though the judgment may be informed by law, the final conclusion is so marked by contingency of time, place, manner, and circumstance that, at its end stages, the decision may be marked less by pure didactic reason than what Yves Simon calls "inclinations," or an "affective connaturality," a "practical wisdom," in short: the virtue of prudence.

Law is, by its nature, universal, broad, not particular, not narrow, not molded to the unique individual decision and individual judgment. In the region of law, reason and its syllogism reigns supreme. However, the judgment immediately prior to an individual action is, in most cases, particular, contingent, narrow, virtually in some ways the opposite of law. Ultimately, though judgment is not law-less, judgment is not law. And somewhere in between law and judgment there comes into play the notion of practical wisdom, something distinct from the steely syllogistic logic of premise to conclusion. At the end of the process from law to judgment, one begins to enter into the realm of "feel," of "soundness." Surely, not irrational "feel" or "soundness," but "feel" or "soundness" nevertheless. There is a subtle change as one travels from law to judgment, one where the actor shifts incrementally from logician to sage, from legislator to judge, from syllogism to prudence, from law to virtue. This is what happens when we move from the nomos physeos, the universal natural law whose subject is "We," to the nomos autos, the individual "law" (which is in reality judgment) of the here-and-now whose subject is the "I."

That prudence, sound inclination, or practical wisdom, and not syllogistic reason, take the upper hand in judgment immediately prior to action ought not to disturb us. First, such prudence or sound inclination is not in contravention of law or reason. Prudence and sound inclination is not, by any means, antinomian or irrational; at its lower rungs, the universal law and its ratio ordinis remain at the base of the law/judgment ladder. More, however, the tempering as it were of the law as it is adapted to contingencies allows for the entrance of something entirely new: love.

Prudence, practical wisdom, admits of a variety of states. In whatever state it exists, it remains a disciple of love. But it may be more or less enlightened. The more enlightened its condition, the better it satisfies the requirement that human conditions be ruled and measured by reason.

Simon, 85.

Law is, then, at the fundamental premise of human action, and as one progresses from absolute and unchanging moral law to judgments based upon prudential bases one progresses from law to judgment. Thus laws, to the extent they include within themselves more prudential aspects, become less like laws and more like judgments.

This fact reminds us that laws participate unequally in the character of law. Inasmuch as a law is a work of the reason, the ways of inclination used by prudence, no matter how reasonable and necessary they may be, satisfy the essential implications of law less completely, less plainly, than the ways of rational necessity. A law is more or less a law according as it has more or less completely and directly the character of a work of reason.

Simon, 86.

Between Necessity and Contingency

THERE CAN BE NO REAL MORAL LAW if all is determined, if all is a matter of necessity, of ineluctable, pre-programmed fate, moira (μοῖρα). Nor can there be any natural law if all is a matter of contingency, of chance; in its most radical form, chaos (χάος). The natural law presupposes that there is a certain thread of determinism arising out of the divine plan in creation, the existence of stable natures or essences, an order of reason (ratio ordinis) that manifested itself in the creation of the world and that governs its continuing existence. However, the natural law also presupposes that there is contingency in the world; that not all is determined, and there is a plurality of causes, and, in fact, moral freedom in at least part of creation that is man. Thus the natural law hovers in between metaphysical theories of pure necessity and pure contingency, holding that we are not dealing with a situation of either/or, but a situation of both/and.

An underlying metaphysics of pure determinism is incompatible with the natural law, at least in its moral aspects. If all is fated, determined, there is no moral law since there is no responsibility that may be assigned to the subject whether he or she obey it or disobey it. It matters not whether that fate is as a result of ineluctable cosmic laws or as a result of arbitrary whim of playful gods. The adverse relationship between determinism and natural law is both historical and logical. As Julius Stone wrote in his Human Law and Human Justice,

It is clear that the concept of "natural law" emerged in Greek philosophy concurrently and in entanglement with the notions of justice, representing still another expression of the rational endeavour to overcome the irrationalism of early myths. In these myths Moira, who personified inscrutable destiny, allotted to each man a destiny which, be it happy or unhappy, merited or unmerited, he must accept. "Justice" lay first in the inscrutable will of the gods, so that fate impenetrable to the rational understanding took its relentless course. As speculative hope, and then conviction, created a cosmology in which the appearance of chaos and discord were drawn aside to reveal a cosmic order and rationality, so too with human nature and human duties.

Julius Stone, Human Law and Human Justice (Stanford: Stanford University Press, 1965), 14.

Modern determinism is not assigned to the whim and caprice of gods or the part and parceling of the fates and the cutting of the threads of life. Modernly, determinism seems to be predicated on a mechanistic, Darwinistic, or materialistic, view of the cosmos, perhaps a life precoded in the genome, an ideology of historical dialectical materialism, or perhaps even the imposition of disordered chaos. Less likely now, but more likely in the past, determinism was based upon a philosophically monistic view of the universe. Thus the pantheism of the Stoics and of Spinoza lend themselves to a form of determinism. If there is only one overarching cause in the world, there is no room for freedom, for contingency; without some contingency, there is no room for the free obedience to the reasoned order of existence, that is, no room for free obedience to the natural law.

Yves Simon states the problem between contingency and necessity in the language of causality. When causality is looked at, any pretense at a monistic view of the world--where one cause that fully and necessarily explains all--becomes palpably implausible.

If there were only one cause at work in this world, there would be no independent causal lines and no possibility of interference. . . . When this problem is stated in terms of causal relations, it becomes particularly clear that the pluralistic answer is inescapable.

Simon, 55. Simon gives the example of a kernel of corn. The plurality of causes that either come together to allow a kernel of corn to grow into a plant or that can cause interference in its development is apparent:


The plurality of causes means the causes "can interfere with each other, and a contingent event takes place at the point of interference." Simon, 55. Thus, it is an inescapable conclusion, unless we are captured in the throes of ideology, that multiple causes exist, and that contingency therefore exists. The existence of contingency is significant for the area of the natural law.

If the plurality of causes and their interference are real, contingency is equally real, and the part it plays in the world, both physical and moral, may be huge.

Simon, 55-56. Accordingly, the full grown corn plant, like any fully-developed species of God's creation, should give us pause at the interaction of necessity and contingency, of law and freedom, of a plurality of causes all under the regency of the Providence of God. In a way, a fully formed plant is a plant that has overcome contingencies to reach a perfection. Analogously, a human who has managed to overcome the contingencies that would detract him from his end is a saint.


In a world of of pure determinism, pure necessity, there would be no room for a moral natural law. Thus contingency is a requirement for there to be a natural law.

However, the other extreme, in a world of pure contingency, pure indeterminancy, likewise any possibility of natural moral law is excluded.

No natural law would be conceivable in a world of all-embracing indeterminacy, in a world from which all determinate natures would be excluded . . .

Simon, 57. Wallowing in the world of indeterminacy, we find the skeptics, who disclaim the ability to measure, to comprehend any normative rules or norms, any universal natures. In the world of essences, the advocates of indeterminacy are the existentialists, skeptics of essence, disbelievers in universals. At least existentialists in their more radical forms refuse to acknowledge the determinacy which, although not robbing of freedom, does in both material and moral worlds, bind us to a universal to which we are answerable.

In short, one who says the world is all of necessity is a liar, as is he who says that the world is all contingency. The one who speaks the truth will hold necessity in one hand and contingency in the other. In such a world, the natural law mediates between necessity and contingency.