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.

Monday, July 19, 2010

From Law to Law: De Legis ad Lege

THE WORD "LAW" DOES NOT CUT LIKE A KNIFE, and does not handle lightly, precisely. It is a blunt, broad, heavy word with a significant depth and breadth of meaning, and it is easy to get lost in a thicket if we forget that the word "law" has rich analogical meaning and varied conventional use. The context where the term is used (at least in English) is truly daunting: a "law" of physics (say, a "law" of thermodynamics or the "law" of gravity), to mathematics (one may mention the commutative, distributive, associative "laws"), to economics (e.g., the "law" of supply and demand), to the laws of human communities (the "law of the land"), to authority ("Stop! In the name of the Law!"), to moral behavior (the natural "law"), to religious, revealed law (the "Law" of Moses, the "Law" of Grace). We even attribute laws to bad luck: Murphy's "law." Except for perhaps its use with respect to Murphy (where the use of "law" is metaphorical), the uses of the word "law" in these various instances are clearly are certainly not used univocally, but neither are they used entirely equivocally. Their relationship is analogical. "The analogy involved is that of proper proportionality, it is not a metaphorical analogy, and it is not analogy of attribution." Simon, 110. [For discussion on analogy, see The Analogy of Law: From Law to Law.] Thus, we have the situation where there is a proportion of a proportion. In mathematical relationships, the proportionality analogy may be depicted thus:

The proportionality analogy may be applied mutatis mutandis to conceptual relationships, so that there may be an analogy of proportionality between human law and human society and the natural law and mankind, or even the eternal law and the cosmos.

The analogy of proportion may be extended even further, so that the relationship between the various elements of positive law that we have studied, say the requirement that the law be a rule of reason, or for the common good, or supported by sanctions, or promulgated by the one that has responsibility for the community have analogical relationships with the natural law. As a result, we may say that the natural law is also a rule of reason, for the common good of mankind, supported by sanctions, and promulgated by the one who is responsible for mankind. For example, the relationship between a human legislator and the positive law may, by analogy of proportionality, be extended to explain the relationship between God and the natural law.

Having defined the positive law and identified its various components, and aware of the analogical use of the term law, we may then ask ourselves "whether the understanding of the positive law leads rationally to an antecedent, to a more profound or universal law, which we might call the 'law of nature'." Simon, 111. In answering this question, Simon asks three further questions. First, what is it that is meant when one asks whether a human positive law is just or unjust? Second, on what grounds is it that we conclude that a positive law ought to be changed? Third, why should positive human law be obeyed? Through the use of these three questions, Simon concludes that there is a law underlying human positive law so that "nothing would be right by [human] enactment if some things were not right by nature." Simon, 118. In short, human law presupposes a natural law, or human law makes no sense.

On the question of whether a human law may be just or unjust, men are almost unanimous that human laws can be just and that human laws can be unjust. In the extremes we may find doubters, so that anarchists would believe any human law is, by definition, unjust. At the other extreme, we may find inveterate positivists that would maintain that it is meaningless to mix terms like "justice," which is a term of value, with a term like "law," which is a term of fact.

But the extremists are not consistent with their ideologies, however sincere they may hold them. One wonders, for example, if Anarchist groups do not have organizational rules to handle their operations and governance. And they would be the first to invoke the laws protecting free speech if governments made efforts to squelch them. And even the most stubborn positivist, unless he were a Nazi supporter and blinded by its ideology, would admit that the laws against non-Aryans in Nazi Germany would be unjust. "The problem of injustice certainly exists with regard to every positive law." Simon, 113. Indeed, the question as to one law (and its justice or injustice) may be framed so as to encompass an entire political system. As a matter of unanimous practice, men discuss the justice of laws and of political systems, a practice which implies a notion of an extra-legal or extra-political standard. By further implication, this extra-legal or extra-political standard suggests an end or a purpose of law or of political systems.

The second question--when and on what grounds ought a positive law be changed?--in one way is already answered by the first question. A law ought to be changed on the grounds that it is just to change it, or at least not unjust to change it. (In fact, the question is asked when the law is passed in the first place.) This clearly suggests, again, and extra-legal standard, a natural law underlying all positive law. The difficulty of discovering its particulars does not justify refusing to acknowledge its existence.

This brings us to the last question. Why should human law be obeyed? "If there is no idea of an antecedent law," Simon observes, "the reason why positive law should be obeyed is entirely contained in the constraint possessed by civil society." Simon, 116. In other words, law would have no claim on the conscience, but would be obeyed only to avoid the sanctions that the state could impose upon us. Obedience to law would based upon reasons entirely pragmatic. In other words, the motive for obedience to law would be reduced "completely and in all cases, to a desire to avoid the trouble which would follow if the law was disobeyed." This may be often a motive. But can it be the only motive all the time? Is this sufficient grounds for justifying obedience in all cases? Simon thinks not. Most fundamentally, if one were to accept the argument that obedience to human law is in all cases justified by avoidance of sanction or inconvenience, then we are really voiding men from any obligation toward the positive law, and instead basing the relationship between positive law and men "in sheer power." Simon, 116. With respect to this, Simon observes:
There is an almost universal reluctance to interpret the obligation to obey positive law in terms which annihilate it and replace it by a system of physical constraints where there is no choice, no freedom, and no morality. The obligation to obey positive law obviously requires a different interpretation and this must be derived from the definition of positive law.
And that definition of positive law includes references to an extra-legal standard. In this case, the legal standards are in the definition: reason, for the common good, etc. Others may be further implied. What it suggests, even if simply by inclination, is that there is an extra-legal justification, one other than sheer power, that would make human law something that ought, if just, if ordered to the common good and predicated upon reason, to be obeyed, even if it results in inconvenience to ourselves.

So Simon concludes:
To sum up. No one could maintain with any appearance of consistency that it makes no sense to ask whether a law is just or unjust. And if we confess that the question makes sense, we also confess that there is a justice anterior to human enactment, that prior to their being just by reason of enactment some things are just by nature. These considerations also explain why a law happens to be changed. Finally, to say law should be obeyed exclusively because of the trouble which somewhat regularly follows upon the breaking of law is dialectically impossible. Men have never reasoned that way. When a society is in such a condition that its laws are obeyed only insofar as there is real danger of being caught and punished, it has already disintegrated and even the fear of punishment cannot do much to hold it together.
Simon, 117-18.

On the last observation by Yves Simon, we may wonder if we have not already reached the point of social disintegration.

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