Law: Is It Will First or Reason First?

LAW IS A RULE AND A MEASURE OF HUMAN ACTION. With this "nominal and dialectical definition," the "commonly accepted" definition, Yves Simon begins his exploration of human law with the aim of establishing a "real and scientific" definition of law through further reasoning. He does this by trying to grasp what exactly law must have, what conditions must be present, for something to be a rule and a measure of human action. In doing so, Simon fashions four fundamental questions: (1) whether law is the work of reason; (2) what is the end or purpose of law; (3) what is the cause of law; and (4) how and what is promulgation of the law.

In addressing the first question--whether law is predominantly a work of reason--the opposite question naturally raises itself: whether law is principally or predominantly work of the will. Legal rationalism or legal voluntarism appear to be the two choices as we walk the great divide of the law. But whether law involves reason and law involves will are not mutually exclusive options. The real question is which ought to predominate in law? Which is another way of asking which ought to be subordinate in law? Reason or will? Yves Simon concedes what seems apparent: "That every law involves an act of will is taken for granted." Simon, 71.

Thus the first question in our progression from the nominal and dialectical [common] to the real [and scientific] definition of law is whether, in order to have the character of a rule and measure of human action, the thing called law should be primarily a work of the reason or a work of the will.

Simon, 72.

From a historical perspective, a theory of legal voluntarism (where the will predominates over reason in law) has a checkered reputation. It seems a refuge of tyrants and revolutionaries and democratic demagogues. So we see it as a justification for the arbitrary power of Caesar, or the alleged "divine right" of Kings, or the ukase of the Czar: The Roman jurist Ulpian's unsettling dicta: princeps legibus solutus est (the prince is not bound by the laws) and quod principi placuit legis habet vigorem (what pleases the prince has the force of law) come to mind as indicative of this tendency. See Dig. 1.3.31; 1.4.1. More contemporaneously, we might point to Rousseau "for whom law is an act of the general will, and expression of what the people will, so that, in case of dispute about justice or wisdom of the law, the fact that the people wants it to be that way is final." Simon, 73. Populi locuti, causa finita est. Rousseau and his French Revolution minions decapitate the noble tradition of Heraclitus: that the counsel of one man is also law, for the opinion of one man, if he is the best, is worth ten thousand. See DK 33, 49 (νόμος καὶ βουλῇ πείθεσθαι ἑνός, "and it is law also to obey the counsel of one," and εἷς ἐμοὶ μύριοι, ἐὰν ἄριστος ᾖ, "one is ten thousand to me, if that one be the best.") It matters not reason: the general will supplies its own reason. Here, Juvenal's line is relished: Hoc volo, sic jubeo sit pro ratione voluntas. (Satires, VI, 223). "I will this, I order it, so let my will stand for reason." Will, whether of one tyrant or of a tyrannous majority, is the juggernaut in law for the legal voluntarist.

Yves Simon

On the other hand, the proposition that law is "a thing which is a rule and a measure of human action," and "primarily the work of reason," is what Yves Simon calls "axiomatic," which, from a philosophical viewpoint, is to say that it is an "absolute premise," that is, a proposition that is undeducible, indemonstrable. (This, of course, suggests that the opposition premise, that law is "primarily the work of will," is also an opposing absolute premise, one which cannot be deduced or demonstrated to be true, but one, since erroneous, which can be demonstrated to be false.) To say that a proposition is axiomatic is to say "that if we understand the subject" (in this case, "law"), "and the predicate of this proposition," (in this case "a thing which is a rule and a measure of human action"), "we also understand that they are to be connected by the copula 'is'". Simon, 77. That an axiomatic proposition, one which is logically self-evident, is psychologically evident is a different story. "It may take years or generations or centuries for the mind to understand a proposition that is logically immediate." Simon, 77. As an example, one might point to traditional Islamic societies. It is doubtful that these societies, having been so ingrained with the irrational notion that law is nothing but the will of Allah, would recognize the self-evident nature of the proposition that law is a rule or measure principally of reason. (See, e.g., Robert R. Reilly's The Closing of the Muslim Mind (ISI Books 2010). On the matter of legal voluntarism, these minds have been poisoned at the intellect's well, have been stunted by a sort of mental hydrargyria. It exhibits itself by their mercurial, irrational, impulsive violence.

Law involves a rule or measure of "human action." By "human action" we mean to exclude those parts of men's activities that are involuntary or the result of insanity, temporary or lasting, or some sort of pathological emotion. (These latter are "cosmic events" in Simon's nomenclature, not "human actions," though the acts of humans may be incidentally involved.) In other words, to be in the world of "law" we must be placed in the realm where there is a sufficient modicum of freedom so that actions can be governed by rational measure or rational rule. This is the realm where the external action would be generally viewed as having with it moral implication in addition to a mere physical implication. Where the man is answerable for it, where he ought either to be praised or to be condemned.

How do we know that a case of killing is a cosmic event rather than a human action? We hold that the mind of a man is gone, that the use of his judgment is suspended, that his reason is out of commission. It is the presence of reason which makes all the difference. . . .Thus by reflecting upon the rational character of what is recognized as "human action" we come to understand that ruling human action primarily pertains to reason. The rule of an action proceeding from the reason must be rational. If the will is reasonable, if it follows the reason, it is to the reason that primacy belongs; but if the will is held to enjoy primacy, it is also held to be free from reasonableness, from agreement with the reason, from direction by the reason. Such a will is arbitrary, and the most adequate way to convey the rationality of the law may be to say that such a will is lawless.

Simon, 79-80. Ordinary cosmic events, events which man has no control over, such as the movement of the planets, the countless physical and chemical processes witnessed every day, are subject to "law," as they exhibit an order; however, it is an order or law entirely outside the scope of human law. In comparing the order relating to "cosmic events," to a notion of legal voluntarism, the absurdity of the latter relative to legal rationalism is apparent: "A voluntaristic interpretation of law would place less rationality in human actions than in processes that are just natural. The absurdity of such an interpretation helps to perceive the truth of the opposite view and of its consequences." Simon, 80. In other words, to hold to legal voluntarism would mean to say that man is governed by processes less rational than the world of nature in which he finds himself. There is a fundamental absurdity in such a proposition. Thus, the self-evident proposition that "law" must be a measure or rule principally based upon reason preserves itself through the apparent absurdity of the opposite proposition.

There is, however, the question of instinct, which itself is a sort of "rule" or "intelligence" by which animals, and in a certain manner, also man are governed. How does human "law" differ from such rule of instinct? It is in the apprehension of an end, knowing it to be an end, that we find what distinguishes instinct from reason. The ordering of activity with knowledge of an end, knowing it to be an end, and the structuring of means to achieve that known end, is what distinguishes the impulse of instinct from the impulse based upon reason. The legislative activities of man, which encompass "a constant effort to embody a certain philosophy of man and society," cannot be confused with animal instinct. If there are societies, or part of societies, that base themselves on such nonrational instinct, they are, at least to that respect, infrarational or subhuman. Simon, 81.