Natural Law's Modern Cousin Germain: Lex Iniusta

WHAT IS THE CENTRAL THEOREM of authority which forms the foundation of the apologia in support of the the proposition that an unjust law is no law at all? For Finnis, that central theorem is defined thus:

[T]he ruler has, very strictly speaking, no right to be obeyed; but he has the authority to give directions and make laws that are morally obligatory and that he has the responsibility of enforcing. He has this authority for the sake of the common good . . . . Therefore, if he uses his authority to make stipulations [laws, orders, judgments, etc.] against the common good, or against any of the basic principles of practical reasonableness, those stipulations altogether lack the authority they would otherwise have by virtue of being his.

NLNR, 359-60. What this means is that laws, or orders, or judgments, or other "stipulations," if made for partisan, private reasons or if made in clear excess of legal authority, or if they direct that things be done that are violative of fundamental human rights, or impose inequitable burdens on his subjects, these sorts of "stipulations . . . fail, of themselves, to create any oral obligation whatever." NLNR, 360.*

Finnis then sides with the "classical position." An unjust law does not bind in any fashion in the moral sense. "Such laws lack the moral authority that in other cases comes imply from their origin, 'pedigree', or formal source." NLNR, 360. So he joins the chorus led by St. Thomas who himself relies on St. Augustine: lex iniusta non est lex: virtutem obligandi non habet, an unjust law is not law: it has no power to obligate.** This is so even if the law comes from a legally authorized source, is enforceable by courts, and is spoken of by all as law.

This, however, takes us to another issue. When a law is perceived by the greater majority of the citizenry as not unjust, what is the person who believes the law grossly unjust to do? If he disobeys the law the injustice of which his fellows have difficulty seeing, will he not cause scandal? Will not that act of disobedience against an unjust law have the consequence of minimizing respect for law generally? "It may be," as Finnis notes, "that if I am seen by fellow citizens to be disobeying or disregarding this 'law', the effectiveness of other laws, and/or the general respect of citizens for the authority of a generally desirable ruler or constitution, will probably be weakened, with probable bad consequences for the common good." NLNR, 361.

If that is the situation, is there a collateral reason relating to the common good--apart from the unjust law that does not bind--which may bind us nevertheless not to disregard an unjust law but to mind it? Another way of looking at the situation is does one unjust law impugn the entire system? And if not, then does our obligation to the entirety of the system demand compliance with the law that--taken by itself--is unjust and therefore not morally binding? The answer is that it depends upon the circumstances which must be prudentially assessed:

This degree of compliance will vary according to time, place, and circumstance; in some limiting cases (e.g., of judges or other officials administering the law) the morally required degree of compliance may amount to fully or virtually full compliance, just as if the law in question had been a just enactment.

NLNR, 361. It is foreseeable that, in some circumstances, the conscientious (and rightly thinking) citizen and (a fortiori since the scandal is greater) the public official may be called not to act on his conscientious objection to one law in order to heed to what ought to be his conscientious attachment to the legal system as a whole:

So, if an unjust stipulation is, in fact homogeneous with other laws in its formal source, in its reception by courts and officials, and in its common acceptance, the good citizen may (not always) be morally required to conform to that stipulation to the extent necessary to avoid weakening 'the law', the legal system (of rules, institutions, and dispositions) as a whole. . . . [T]he citizen, or official, may . . . have the diminished, collateral, and in an important sense extra-legal, obligation to obey it.

NLNR, 362. In short, there are (possibly) moral reasons for obeying immoral laws.

Unless the law involves a direct offense against a basic human good (or a direct violation of the natural law or divine law), the problem of obeying (or disobeying) and unjust law under these circumstances is an exercise in prudence, and there are many factors to consider:

• The difficulty in identifying the injustice, the actual distribution of burdens, and the actual motivation of the authority passing the unjust law, and so determining the extent of injustice in the law in any particular circumstance (when are we informed enough of the law, the circumstances, and the costs and benefits?).
  
• The difficulty of the lawmaker and his need to compromise in the prudent exercise of his authority (when are we allowed to second-guess the legislature?).
• The difficult of assessing when the common good's requirement that one be obedient to the legal system "as a whole" is compromised by the unjust law, singly, or in common with other unjust laws (when is revolution, or less radically, civil disobedience against an unjust regime (or law) conscientiously permitted?)
• The difficulty of determining when it is proper to exercise conscientious civil disobedience for the purpose of spurring legal reform (when should I break a law for the purpose of raising the public awareness of a wrong?)
• The practical availability of intra-systemic channels for challenging the unjust law. (When should the courts or petition to the legislature be used as a an avenue for attacking an unjust law, and when is recourse to the courts excused?)
• The other obligations (institutional, familial) that may limit my freedom of action. (Does a man who has no obligation to wife and children have a different threshold for civil disobedience than a man who has no such obligations?)
  

The entire issue is "highly contingent upon social, political, and cultural variables." One should not "expect generally usable but precise guides for action in circumstances where the normally authoritative sources of precise guidance have partially broken down." NLNR, 362. One may quote here a text referred to be Finnis in his notes, a text by P. T. Geach (The Virtues) which supports the classical formulation but expresses it in a "vigorous modern formulation."

University people argue mightily about whether laws that violate these principles are laws or (as Aquinas called them) mere violence. Of course it doesn't matter whether you call them laws or not: the question is what consequences follow. An unjust piece of legislation exists de facto, as an institution: but it is no debt of justice to observe it, through it may be imprudent to ignore it. And though a private person should not lightly judge a law to be unjust, its contrariety to the Law of Nature and the peace and justice of society may be so manifest that such a judgment is assured. A sufficient mass of unjust legislation may justify a man in deciding that the civil authority is a mere Syndicate. I think Old John Brown rightly so judged about the slave-owning U. S. commonwealths of his time. Rebellion, however, is another matter, because the evils it may bring about are so great: whether Old John Brown judged rightly about this is a matter we must leave between Old John Brown and his Maker . . . .

NLNR, 367.

Old John Brown

And the most issues of obedience to an unjust law and lie within the discretion of prudence, yet there are situations where obedience to an unjust law is simply not allowed a man under any circumstances. There are some situations where exceptionlessly an unjust law must be disobeyed regardless of the cost to oneself. Put in secular terms, there are instances where "[i]t is universally true that one has an absolute (liberty-)right not to perform acts which anyone has an absolute (claim-)right that one should not perform." NLNR, 362. Put in religious terms, there are times when must obey God rather than men. (Acts 5:29) This is what the statement an unjust law is not law at all is supposed to encapsulate.

The statement an unjust law is not equivalent to law would seem to be one of two things. Either it is pure nonsense (being self-contradictory) or it is the "dramatization of the point" that an unjust law is not law in the focal or central sense, but law, at best, in a non-focal, "in a manner of speaking" sense. An unjust law is not law simpliciter, it is only law secundum quid.

It is interesting to observe that the classical formulation has been carelessly re-written by modern enemies of natural law so as to confuse categories. So citing largely H. L. A. Hart, Finnis summarizes the modern re-characterization as follows:

[M]odern critics [of the lex iniusta doctrine express the traditional doctrine in terms such as] 'what is utterly immoral cannot be law,' or that 'certain rules' cannot be law because of their moral iniquity', or that 'these evil things are not law, or that 'nothing iniquitous can anywhere have the status of law', or that morally iniquitous demands [are] in no sense law, or that 'there cannot be and unjust law.'

NLNR, 364 (quoting Hart passim) (emphasis in Finnis).

Note the re-characterization by Hart. As Finnis notes, the "tradition, even in its most blunt formulations, has affirmed unjust LAWS are not law." NLNR, 364. The classical tradition clearly recognized that the unjust law is law in one sense. But they also recognized that the unjust law is not law in another, more plenary sense.*** The tradition therefore recognized that unjust laws may be laws in a purely positive sense or they may be laws which of their own do not justify obedience, but as part of a greater legal system may demand conscientious obedience for collateral reasons (to avoid scandal, etc.). It is not unusual to "shift" senses of a term "within the space of a single sentence." The term "law" may be used to refer to its "intra-systemic expository viewpoint," or its "historical/sociological viewpoint," or its "viewpoint of unrestricted practical reasonableness." So the sentence's seeming contradictory nature disappears if one considers the subtility of the advocates' thought: A law from the viewpoint of unrestricted expository viewpoint is not a law from the viewpoint of unrestricted practical reasonableness.

With a little bit of good faith and a little bit of intellectual effort an understanding of the classical position is easily gained, and it is impossible to say that it is nonsense. The positivist's accusation against the exponent of the classical doctrine of natural law of falling headlong into a contradiction is clearly meritless. The argument is one born of ideology; it is a cheap shot; it is the result of intellectual torpor, carelessness, or just plain intellectual dishonesty. In a word, nonsense. Indeed, nonsense on stilts.
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*Finnis excludes motive from the formulation. Thus, a ruler can pass a law or make a judgment for improper motive which yet conforms with the interests of the common good. Also, those people unaffected by the distributive injustice of a law are not exempt from the moral obligation of that law. NLNR, 360.
**S.T. IaIIae, q. 96, art. 6, c.
***The traditional analysis is replete with words that made it clear that they used words in non-univocal senses; that is, that terms were frequently analogical or ambiguous and allowed for a wide sense of meanings, some precise some less so precise. So they distinguished between a term or concept simpliciter or vere or propie or in senso stricto (respectively, simply, true, proper, in a strict sense) and a term or concept in senso lato or secundum quid or secundum aliquem modum or secundum similutidnem or cum aliqua adjectione (respectively, in a loose sense, in a manner of speaking, in a certain mode, in a similar sense, with certain limitations).

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.

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.
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*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