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, April 25, 2011

Natural Law's Modern Cousin Germain: Unjust Laws and How They May Arise

JOHN FINNIS SEEMS ALWAYS ON THE VERGE of being embarrassed or apologetic about some of the concepts or coinages of traditional or classical natural law. One of those that he seems eager to disassociate, or at least distance himself from, is the statement that "unjust laws are not law." The statement has a superlative pedigree, found in such orthodox doctors of the Church as St. Augustine, who, in his De libero arbitrio (I, V, 11.53) states that an "a law that is unjust does not seem to me to be a law at all."* The thought is also embraced by St. Thomas Aquinas who states (in his Summa Theologiae, IaIIae, q. 93, art. 3, ad 2) that "in so far as [a human law] deviates from reason, it is called an unjust law, and has the nature, not of law, but of violence."** These men were not prone to foolish prating, and though the former sometimes waxed eloquent with imprecise rhetorical flourish, the sober and precise scholastically-trained St. Thomas can hardly be accused of such. More respect ought to be given these thinkers than that which would state that whatever concern drove them to use such language is nothing but a "subordinate concern," or a "subordinate theorem." It seems to me not so much a subordinate theorem, but, properly understood, as a rather good short-hand synopsis (what Finnis depreciates into a "slogan") of their theory of law.***

It is true that the entirety of St. Augustine's and St. Thomas's thought on the natural law--its relationship to the eternal law, and the relationship of the positive law to both the natural law and eternal law, etc.--is more than this pithy saying. So we can agree with Finnis when he says:

The principal concern of a theory of natural law is to explore the requirements of practical reasonableness in relation to the good of human beings who, because they live in community with one another, are confronted with problems of justice and rights, of authority, law, and obligation. And the principal jurisprudential concern of a theory of natural law is thus to identify the principles and limits of the Rule of Law, and to trace the ways in which sound laws, in all their positivity and mutability, are to be derived (not, usually, deduced) from unchanging principles--principles that have their force from their reasonableness, not from any originating acts or circumstances.
NLNR, 351.

Still, Finnis throws us a bone and humors us with quite a good apologia for the statement that an unjust law is no law at all. He sets the groundwork for an explanation of the meaning behind the statement that an unjust law is as if it were no law at all by recapitulating the concept he has of law and the role of the lawmaker in promoting the common good of those under his care:
The ultimate basis of a ruler's authority is the . . . furthering [of] the common good by stipulating solutions to a community's co-ordination problems. . . . [A]uthority is useless for the common good unless the stipulations [read: laws] of those in authority . . . are treated as exclusionary reasons, i.e., as sufficient reason for acting notwithstanding that the subject would not himself have made the same stipulation and indeed considers the actual stipulation to be in some respect(s) unreasonable, not fully appropriate for the common good. . . .
NLNR, 351-52.

As Finnis notes, it is the purpose of law, its authority, and the reason behind the exclusionary principle (which therefore demand conscientious compliance by the citizen) that drive the reasoning implicit in the slogan that an unjust law is no law at all. The reasonable pursuit of the common good is the raison d'être of law: it is at the heart of its moral bindingness. Indeed, we can identify injustice by the variance of law from its purpose. Thus injustice can arise in four different ways:
  1. The ruler's authority is fundamentally focused on the common good. Passing laws that are aimed at something other than the public, common good (private good, the ruler's own good or a cadre of his friends, or a lobbyist group's advantage, or supportive of his personal ideology, or out of malice for a group or minority . . . the ways are legion) are at variance with the ruler's authority and the purpose of law, and so may give rise to injustice.
  2. The ruler may act ultra vires, that is, beyond his authority, thus making a law unjust. When all powers are concentrated in one person (legislative, executive, and judicial) this may not be as significant (though even here, the ruler, though he may have plenary legislative, executive, and judicial authority, he may act against custom or against some sort of higher law to which he is beholden).†
  3. The Rule of Law by its very nature redounds to the common good;†† accordingly, a law, stipulation, or means of enforcement which contradicts the Rule of Law may be easily classified as unjust. Therefore, "the exercise of legal authority otherwise than in accordance of manner and form is an abuse and an injustice, unless those involved consent, or ought to consent, to an accelerated procedure in order to cut out 'red tape' which in the circumstances would prejudice substantial justice." NLNR, 353.
  4. The law may be substantively unjust, either as a result of violating distributive or commutative justice. Accordingly, a law could violate distributive justice by taking from the common stock and unjustly providing it to a certain group or minority, by unfairly concentrating or imposing a burden that would more properly be shouldered by a larger group or the commonality as a whole. Similarly, commutative justice could be violated by a law if it denies a person, a group, or the whole commonality of a human (fundamental) right which can be exercised within any restrictions that might be imposed by the needs of public order, health, or other fundamental rights, etc.
For the reasons outlined above, laws can, and frequently enough are, unjust. (This injustice is based upon reason alone. Obviously, laws can be unjust because they contradict divine positive law [e.g., prohibit or discourage the proclammation of the Gospel as done in China or in Muslim countries], but then they would also contradict reason.)

What are the effects of injustice on that law? The question itself brings forth another question because we have to define the range of our inquiry. Finnis identifies four "scopes" of the question, and they seem to comprehend all possible meanings of the question, "what effect, if any, does a law's injustice have on that law being a law?"
  1. What "empirical liability" will one have if a law is unjust and one disobeys that law on the ground of its injustice? What are the practical chances of me being punished for disobeying an unjust law?
  2. What "legal liability" will one have if the law is unjust and it is disobeyed? What, within the positive framework of human law (bracketed from any moral question), will be the result of the violation of an unjust law? (Are there legal defenses or legal challenges to a law, such as does it violate due process, is it void for vagueness, or does it violate some provision of the Bill of Rights, etc.)
  3. What is the "legal obligation in the moral sense" to an unjust law. As we have discussed, positive laws enjoy a moral authority of sorts based upon their prima facie tie-in to the natural law and the common good. Can an unjust law still enjoy moral force, and if so, when?
  4. What is the "moral obligation deriving not from the legality of the stipulation-of-obligation but from some 'collateral' source"? Is there something extra-legal that would affect our moral obligation to obey the unjust law though the heavens may fall upon us?
Some jurists are impatient with some of these questions (the latter two, in particular) and suffer from "methodological obtuseness." So jurists of such stripe will "seek to banish the question, in some of its senses, to 'another discipline', or even declare those senses to be nonsense." NLNR, 354-55.Thus , for example, the positivists H. L. A. Hart and, before him, John Austin and Jeremy Bentham.

Now, to say that human laws which conflict with the divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity.

NLNR, 354-55 (quoting John Austin, The Province of Jurisprudence Determined (London: John Murray, 1832), 279.) (emphasis added). Silly Austin, it was he that was talking raving nonsense. Put blinders on, Mr. Austin, and your view is sure to expand. That's your argument? That's nonsense. But to get back to the point and to avoid ad hominem attacks on a man that can't defend himself . . . .

Back to the "scopes" of inquiry identified above. The concern of the first question's scope is, of course, the "bad man's" viewpoint of the law (a la Holmes) and it absorbs the concerns of the positivist who cannot look beyond it: "Am I or am I not likely to be hanged for non-compliance with this law?" is the only question. We mustn't dabble (in his view) with the question, "Is the law right or not?"

The second concern deals with legal attacks against the law. In some countries such defenses can void an unjust law. Frequently, "there are (and reasonably) quite a few opportunities of raising 'intra-systemically', for example before a court of law, the question whether what would otherwise be an indubitable legal obligation is in truth not (legally) obligatory because it is [legally] unjust." NLNR, 345-57. Unfortunately, this avenue is sometimes foreclosed by prior rulings, and so, for example, the extreme injustice and unconstitutionality of a case like Roe v. Wade, is, in practice law, and it cannot be argued against intra-systemically with any hope of reversal until the Supreme Court is rid of some of its ideologically-left-leaning members, the scruple given to the principle of stare decisis overcome, and a more intellectually honest and originalist jurisprudence governs the Court. The system sometimes fails, and Roe v. Wade--the legal Kristallnacht for fetuses in this country--was and is an abhorrent failure, from the perspective of constitutional law and natural law both.

A red and blue pencil.

Which brings us to the third sense. What happens when "one is confident that the legal institutions of one's community will not accept that the law in question is affected by the injustice one discerns in it?" Here, we may place the abolitionist prior to the Civil War, a member of the Confessional Church in Nazi Germany, the abortion protester in the contemporary United States. What hope would they find intra-systemically with the positive law--whether it be the Fugitive Slave Acts, or the Nuremberg Acts, or Roe v. Wade--and among the passions and mores of the people? What ought such folks do?

Here, the positivist wants to hide in positivist sands both his head and his discipline (ostensibly jurisprudence, a rather odd duck if we take both justice and prudence out of it), blue-penciling any deep, moral questions, not unlike one scratched through unwanted words in a contract in days of yore.

This enterprise may be severely criticized. First, such a bracketing is "artificial," and ignores the overlap between ethical, moral, and legal questions. Second, the very concept of law imports a standard of practical reasonableness, which is the same standard that is involved in moral questions. "Since there can be no sharp distinction between the 'two disciplines' [law and ethics or political philosophy] at that basic level, it is not clear why the distinction, if such there be, should be thought so very important at other levels." NLNR, 358. Third, one should be aware that the advocate of "bracketing" often only wants to "bracket" one version of morality, and suffers no similar scruple in importing his own into his jurisprudence (we may cite John Rawls as a chief offender, who sought to bracket the natural law jurisprudence, but disingenuously welcomed his own liberally-based jurisprudence with welcome arms in his system). The very importation of moral and political elements by jurists (even those who most fervently advance the separate discipline of jurisprudence) shows that law, morality and ethics, and political philosophy belong together. It is apparent that:

[T]he state of the scholarly literature testifies, so to speak, to what a sound philosophy of practical reason establishes abstractly: the principles of practical reasonableness and their requirements form one unit of inquiry which can only for a pedagogical or expository convenience which risks falsifying the understanding of all three.
NLNR, 359.

So Finnis, to his credit, has no such scruples, and he asks the very pertinent question: "What, then, are we to say in reply to the question whether an unjust law creates a moral obligation in the way that [a] just law of itself does?" NLNR, 359. What do we do if the emperor has no clothes, or if his clothes have "injustice" writ all over them? Is there a point beyond which the presumptive moral obligatory force of human law is overcome? And if so, when?

Finnis first of all sets the stage with a brief review of authority, its source and its purpose. Next, he sets forth some caveats. Finally, he answers the question point blank.

These will be the subject of our next posting.
*Nam lex mihi esse non videtur, quae iusta non fuerit.
**See also S.T. IaIIae, q. 95, art. 2 ("Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law." [Unde omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur. Si vero in aliquo a lege naturali discordet, iam non erit lex sed legis corruptio.])
***The principle has a Pagan pedigree. One sees it in Plato. See, e.g., Laws, IV: 715a-b:
Where offices of rule are open to contest, the victors in the contest monopolize power in the State so completely that they offer not the smallest share in office to the vanquished party or their descendants; and each party keeps a watchful eye on the other, lest anyone should come into office and, in revenge for the former troubles, cause a rising against them. Such polities we, of course, deny to be polities [οὔτ᾽ εἶναι πολιτείας], just as we deny that laws are true laws [οὔτ᾽ ὀρθοὺς νόμους] unless they are enacted in the interest of the common weal of the whole State. But where the laws are enacted in the interest of a section, we call them feudalities rather than polities; and the “justice” they ascribe to such laws is, we say, an empty name.

It is present in Cicero (De Legibus, II, v.11):
[t]hose who formulated wicked and unjust commands, thereby breaking their promises and agreements, put into effect anything but "laws".

Ex quo intellegi par est, eos qui perniciosa et iniusta populis iussa descripserint, quom contra fecerint quam polliciti professique sint, quidvis potius tulisse quam leges.

And, of course, we must not forget that classic Pagan source of unjust laws meriting disobedience: Sophocles's Antigone.
One thinks of the Fueros or basic rights that the King of Spain had to uphold as part of his assumption of kingship over various Spanish domains. For example, the Aragonese required the king to take an oath to uphold the Aragonese Fueros before the justicia who, in the name of the Cortes, and representing the people, would say: "Nos que valemos tanto como vos, os hacemos Rey y Señor con tal que nos guardeis nuestros fueros y libertades, y sino no." "We, who are worth as much as you, make your our King and Lord, provided you keep our laws and liberties, otherwise not." (Interestingly, cited by John Adams in his A Defence of the Constitutions of Government of the United States of America (Union, N.J.: The Lawbook Exchange, 2001), Vol. I, 393. But this could clearly happen if Congress passes an unconstitutional law, for example, or if the President violates the separate of powers doctrine by some act.
The Finnisian treatment of the Rule of Law has been addressed in prior postings. See Natural Law's Modern Cousin Germain: Rule of Law: What It's Not and Natural Law's Modern Cousin Germain: Rule of Law: What It Is

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