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.

Thursday, April 21, 2011

Natural Law's Modern Cousin Germain: Obligation and the Bad Man

IN HANDLING THE TOPIC OF OBLIGATION, John Finnis addresses some subsidiary issues. One of those has to do with defining the obligation that is involved in a promise, more specifically the obligation that may be implied in law on an enforceable promise, a contract. Is the promise made a promise to perform the promised performance or is the promise (more subtly) one to perform the promised performance and if that promised performance not rendered, to pay for damages in such event? If I make a promise to paint a man's house, and I breach that promise, what are my obligations? Are they to paint the house as promised or are they to pay compensatory damages for having failed to paint the house? There is, similarly, a question that arises regarding the obligation to obey a law (say a prohibition against driving more than 70 mph, the breach of which is fined at $100). Is my obligation one to obey the law (that is, not exceed 70 mph on the road) or is it merely to pay the fine or suffer the sanction if I decide to disobey the law (pay the $100).*

The distinction between whether a law (or promise) obliges in conscience to prohibit or to require an act or whether a law (or promise) obliges only to make good if one violates the law (or promise) is a distinction that arose in the 16th century, largely as a result of Spanish theologians and jurists. While it might have some value if applied judiciously to ease conscientious confronted with a multiplicity of laws, particularly in the modern bureaucratic state, it was a principle that the "bad man" could grab and abuse. And so the "bad man" in the law, who wrote for the "bad man," Oliver Wendel Holmes,** sought to remove all moral obligation from the law, particularly in the area of contract (promise).

In his famous works "The Path of the Law" and The Common Law, Holmes sought to "wash with cynical acid" (which ran through the arteries of the cynical Holmes) the notion of duty. He fashioned a notion of duty from the perspective of a "bad man," a man without conscience, and therefore dumbed down the notion of duty to the "prophecy that if he does certain things he will be subjected to disagreeable consequences." In the area of contract, the sense of wrong in failing to fulfill a promise was entirely scrubbed out: "[T]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,--and nothing else." NLNR, 322 (quoting Holmes). "[T]he law's ambitions," however, "are higher than this, and its distinctive schemata of thought quite different" from that advocated by the cynical Holmes. NLNR, 325.

Justice Oliver Wendell Holmes, Jr.

But pace Holmes and his tendentious writings which sought to scrub moral duty from the law, most legal systems--recognizing the benefit to the common good of enforcing promises and laws as obligatory in themselves and not as merely providing for disjunctive options--seem to find something valuable in the enforcement of promise qua promise:

This virtually universal interpretation of contracts and contractual obligation has its significance . . . as an indication that contracts are upheld by the law for the sake of the common good, which is positively enhanced (i) by the co-ordination of action, and solution of co-ordination problems, made possible by performance of contracts (in the ordinary, not the Holmesian, sense of 'performance') and (ii) by the continued existence of a social practice which actively encourages such fully co-ordinate performance and discourages non-performance. If all contracts were interpreted and upheld in the Holmesian disjunctive sense, the common good of co-ordination might still, of course, be served to some extent. But it is served to a much greater extent if the law, as it does, (a) allows parties to enter into disjunctive contracts if they chose to, but (b) allows the parties to a contract to know with precision what unique course of action is required of the other party by law, in all those cases (the great majority) in which it is to the advantage of each party not to give the other party a free option between more than one course of action (as Holmes's contract does give).

NLNR, 324.
*This refers to the distinction between a law that is "purely penal" (lex pure poenalis), "merely penal" (lex mere poenalis), or "disjunctive," and one that is not but binds the conscience pure and simple. There were also laws that were simply moral: lex moralis, and laws that were mixed in character (in other words incorporated a moral prohibition, but also added a fine or penalty for its violation): a lex poenalis mixta. If prohibitatory, the lex moralis and the lex poenalis mixta bound the conscience as to prohibited act. On the other hand a law purely penal did not bind the conscience as to the prohibited act, but simply bound the actor either to obey the law or pay the fine or penalty (if caught?!). One of the effects of the theory of purely penal laws is that it seems to inject a blurring into the difference between a tax and a penalty or fine. It changes most penalties into a tax for engaging in the "prohibited" activity. Ordinarily, this is not the intent of the legislative authorities. When the legislature passes a statute prohibiting speeds of 70 mph, it really desires to prohibit speeding, not provide for a tax on vehicles exceeding 70 mph.
**Lex Christianorum is no fan of the positivist and duty-bashing Holmes: See The Natural Law's Devil: Justice Oliver Wendell Holmes for the vicious theories of this vicious jurist, this jurist with cynical blood and cynical brain. He is a singularly unattractive fellow, as unattractive as Rousseau, but for different reasons. Whereas Rousseau was just a selfish little self-regarding and whining prig, Holmes was a cynical and warped moral monster with a stentorian voice. With Rousseau one has to deal with little demons and foolish and irresponsible inconsistencies. One can laugh at Rousseau. With Holmes one is dealing with legal nihilism advanced via a first-class intellect, with all the power of the devil himself. It was as if hell itself occupied the center of the jurist's mind so absent was God from anything he believed. One cannot laugh at Holmes. One either pities him or recoils with horror.

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