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, July 16, 2010

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.

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