The Nature of Law
Part III: Law vs. Legislation
by Roderick T. Long
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Outline (all four parts)
Part I: Law and Order Without Government
- Varieties of Law
- Public Goods vs. Public Choice
Part II: The Three Functions of Law
- Why Three Functions?
- Should Law Be Monopolized?
- Locke's Case for Monocentric Law
- The Lockean Case Against Locke
Part III: Law vs. Legislation
- Socrates on Law
- Two Senses of Law
- Natural Law and Human Law
- Natural Law and Customary Law
- Law vs. Legislation: Documentary Evidence
Part IV: The Basis of Natural Law
- Is There Room for Natural Law?
- Who Has the Burden of Proof?
- Objection One: Natural Law Serves No Useful Purpose
- Objection Two: There Couldn't Be Such a Thing as Natural Law
- Objection Three: Even If There Were a Natural Law, It Would Be Unknowable
- Objection Four: Evolutionary Explanations Make Natural Law Obsolete
- John Locke on Natural Law
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Part III: Law vs. Legislation
Socrates on Law
In one of Plato's philosophical dialogues, called the Minos, Socrates asks an unnamed comrade for a definition of law. The comrade complies, offering the following definition: "Law is what is legislated." But Socrates objects: just as sight isn't what we see, but rather that by which we see, so likewise law is not what is legislated but that by which we legislate. The comrade accepts this criticism and retracts his definition. This might surprise us: surely law is the product of legislation, not vice versa. But in saying that law is that by which we legislate, Socrates is in fact appealing to a very old and deep-seated idea, as we shall see.
The comrade's second definition is this: "Law is the judgment of the state." But through repeated questioning Socrates quickly proves that this definition clashes with other things the comrade believes; thus the comrade is committed to an inconsistent triad of beliefs:
Clearly, Socrates' comrade is attracted both to a positivist conception of law (according to which law is whatever the government says, be it just or unjust) and to a moralized conception of law (according to which law is inherently just); and Socrates exploits this tension.
So Socrates suggests a revision: "Law is the correct judgment of the state." Thus only those judgments of the state that are correct count as genuine laws. This may seem odd to us; when state decrees are incorrect, we tend to say that they are bad laws or unjust laws, not that they aren't laws at all. Being a law is a purely descriptive fact with no evaluative weight: anything the legislature cooks up, whether good or bad, is ipso facto a law.
Why would anyone think otherwise? Well, consider the distinction between power and authority. What's the difference between a command issued by a legislature, and a command issued by a mugger with a gun? Both have the power to enforce their demands; but the legislature, unlike the mugger, is presumed to have authority. Yet the legislature's authority is conditional; if Congress were to pass a bill outlawing Methodism, it would be overstepping its constitutional authority, and so its decree would not have the force of law. But if the Congress derives its authority from the Constitution, where does the Constitution get its authority? At this point we can only conclude that the Constitution's authority, if any, must be moral in character, deriving from natural justice. Only something with intrinsic normative weight could serve as the Unauthorized Authorizer that transforms all lesser decrees into laws.
But Socrates needn't be relying purely on an argument of this sort. He also has a weighty historical tradition on his side. Socrates' conception of law is arguably the dominant one historically, and our positivistic one a mere anomaly; the concept of law as an objective standard to be declared or discovered (rather than created) by legislators was the dominant notion both in legal practice and in legal philosophy throughout most of history — called rta or dharma in India, ma'at in Egypt, and torah in Judea. That's why Socrates can speak uncontroversially of law as not what is legislated but that by which we legislate. It was a standard principle of jurisprudence for the next two millennia that lex injusta non est lex: an unjust law is not a law. Not until the Enlightenment did the notion of Natural Law degenerate from its original notion, a constraint on what law was, to a mere constraint on what law ought to be.
Today's positivistic conception of law is thus really something of a historical aberration; though it seems to have had some currency in ancient Greece as well, as is shown by the comrade's resistance, as well as by the fact that the Greek word nomos means both "law" and "convention." (A similar tension between positivist and moralized conceptions of law is found in the Greek statesman Pericles' confused responses to Alcibiades' Socratic questioning in Xenophon's Recollections of Socrates. Perhaps the fact that Athens was a democracy, and the average Athenian was constantly engaged in passing and repealing laws, served to weaken the traditional moralized conception of law.)
Socrates argues that only decrees based on knowledge of objective justice
and injustice can count as true laws; he adds that all states legislate
the just, but they make mistakes about what in fact is just. Socrates'
point here is reminiscent of an argument by David Lyons that legal interpretation
presupposes moral theory:
(David Lyons, "Constitutional Interpretation and Original Meaning." Social Philosophy & Policy IV, pp. 85-99.)
Professor Lyons' point is that precisely the same argument applies to moral terms: if the Constitution demands just compensation for victims of eminent domain, then such victims must receive whatever is actually just, not what the framers thought was just, since the Constitution says to give "just compensation" rather than saying to give "what we consider just compensation." (The 19th-century abolitionist Lysander Spooner used similar arguments in his Unconstitutionality of Slavery, claiming that slavery was outlawed by various clauses in the Constitution even if the authors of those clauses had no such intention, because such phrases as "republican form of government" and "against domestic violence," when interpreted in accordance with the correct moral and political theory, ruled out slavery.)
The conclusion of Plato's Minos, then, might be described as
follows: All states legislate both the concept of justice, and particular
conceptions of it. Insofar as they legislate the concept, they all
legislate the same thing, and these legislations are genuine laws. Insofar
as they legislate different conceptions, their decrees (or most of them)
are not genuine laws, and their legislators are simply proving themselves
to be ignorant of what the law truly requires.
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Two Senses of Law
In Part I of this series of articles on the nature of law, I defined law as "that institution or set of institutions in a given society that adjudicates conflicting claims and secures compliance in a formal, systematic, and orderly way." (Formulations, Vol. I, No. 3.) It should now be clear that I was there defining positive law, not Law in the traditional strict sense discussed here. One of my principal aims in Parts I and II was to argue in favor of a specific kind of positive legal system — market anarchism — as both morally and practically superior to other systems. My conclusion there might now be rephrased as follows: market anarchism is the variety of positive law most in accordance with Law in the proper sense.
But what is the precise relation between positive law and Law proper?
To that question I now turn.
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Natural Law and Human Law
My account of the traditional conception of Law proper might suggest that the content of this Law is entirely independent of human will. Some legal philosophers in this tradition have indeed thought this. Lysander Spooner, for example, insists that human legislation can neither add to nor remove from the true Law a single provision.
The more common view historically, however, has been that of the great mediæval philosopher Thomas Aquinas. Aquinas held that the content of true Law included not only Natural Law — that is, the principles of justice requisite to genuine human well-being, and inherent in human nature as created by God — but also Human Law. By Human Law Aquinas does not mean what I have been calling positive law. His idea is rather the following:
Some of the provisions of Natural Law, while absolute and binding, are
often lacking in specificity. For example, it might be a provision of Natural
Law that cars going in opposite directions on a highway should drive on
opposite sides of the highway — but the Natural Law might be silent on
the question of whether cars should drive on the left or on the right.
Any decision on this latter question is a matter of indifference, from
the standpoint of Natural Law, and may be left up to human convention.
All the Natural Law requires is that there be some decision on the
matter, and that whichever convention is adopted should then be obeyed.
Thus if a particular nation adopts the rule of driving on the right, this
latter provision then acquires the force of Law, and so is morally binding.
The rule "Drive on the right" is not part of the unchanging Natural Law,
but is rather a provision of mutable Human Law. Mediæval jurists
spoke of such rules as reducing (that is, as making more specific)
the provisions of Natural Law; but they denied that Human Law could ever
contradict the Natural Law. Law in the strict sense, then, covers
both Natural Law and Human Law, the latter being subordinate to the former;
but Human Law is narrower than positive law, since only those provisions
of positive law that are consistent with justice are to be counted as Human
Law. The legislator may have some creative freedom, but only within the
bounds of the Natural Law, and it is his or her task to discover those
bounds, not to stipulate them by fiat.
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Natural Law and Customary Law
I have spoken of the standard to which legislation must answer as Natural Law — a set of immutable moral principles that transcend human will. Such was indeed the view of Plato, Aristotle, Cicero, Aquinas, and indeed most legal philosophers throughout history. (For some representative quotations, see the documentary evidence on pp. 17-18.) But legal historians point to what might seem a different conception of true Law: the practice, in most pre-modern societies, of regarding traditional custom as the supreme standard of Law. (Again, see pp. 17-18.) The task of the legislator, in such societies, is seen as the attempt to discover, state, and apply the already existing practices of the tribe or nation — what the British jurists call the "custom of the country" — and not to appeal to some abstract standard of transcendent justice such as Natural Law.
This conflict is largely illusory, however. For we must recall that (Spooner to the contrary not withstanding) the true Law comprises not only Natural Law but also Human Law — and Human Law may be enacted not only by an official legislature but likewise, and with equal (if not greater) authority, by spontaneously evolving custom. Indeed, such customary law is probably a more reliable method for "reducing" the Natural Law, because a spontaneously evolved and voluntarily maintained custom is more likely to promote mutual advantage than a decree devised and imposed by a small group in power.
On similar grounds it has been argued, by F. A. Hayek and Bruno Leoni among others, that a common-law system, in which legislation arises through judicial precedent, is superior to a system in which judges and courts simply apply legislation created by a separate legislature. (The American system is a mixture of these two.) One advantage of the common-law system of judge-made law is that a judge cannot simply start legislating about anything that strikes his fancy, but must respond to particular claims brought by particular people, and so the system of precedents that evolves has been shaped by the needs of individuals.
Such a common-law system works best, however, if there are competing courts and competing jurisdictions, so that courts that make bad decisions will lose out over time to those with better judgment. Under a centralized judiciary with restricted choice in jurisdictions, many of the advantages of common law are lost — though even here there is a sort of competitive element, insofar as different precedents may be thought of as competing against one another.
A common-law system will not work well if courts ignore precedents altogether;
at that point a judge simply becomes a mini-legislator, rejecting the wisdom
embodied in earlier judicial experience. On the other hand, a common-law
system will also fail to work well if it adheres too closely to precedent;
for if judicial entrepreneurs refuse to innovate or to introduce competing
precedents, the invisible hand has nothing to work with. Human Law, unlike
Natural Law, is supposed to be flexible, adapting itself to changing
circumstances. Tom Bethell offers the Islamic legal system as an example
of a common-law system that degenerated when it lost its flexibility, thus
freezing the once dynamic and progressive Islamic civilization into mediæval
Taqlid brought with it serious problems. ... Some Islamic scholars .... believe that the closing of the gate was a major cause of the decline of Islam. ... With independent thought no longer desired, law in the Muslim world became dominated by people of a subservient disposition who were attracted to the service of power. ... Taha al Alwani denounces the fallen state of the Muslim world .... 'Muslims and non-Muslims alike are amazed that one of history's most advanced civilizations could fall into such a state of overwhelming wretchedness, ignorance, backwardness and overall decline ....' He believes that the ingrained deference to authority and the discouragement of reason that began with the 'closing of the gate' is an important part of the explanation."
(Tom Bethell, "The Mother of All Rights," Reason 25 (April 1994), p. 45.)
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Law vs. Legislation: Documentary Evidence
"Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. ... Such rules might in a sense not be known and still have to be discovered, because from 'knowing how' to act, or from being able to recognize that the acts of another did or did not conform to accepted practices, it is still a long way to being able to state such rules in words. But while it might be generally recognized that the discovery and statement of what the accepted rules were (or the articulation of rules that would be approved when acted upon) was a task requiring special wisdom, nobody yet conceived of law as something which men could make at will. It is no accident that we still use the same word 'law' for the invariable rules which govern nature and for the rules which govern men's conduct. They were both conceived at first as something existing independently of human will. ... they were regarded as eternal truths that man could try to discover but which he could not alter. To modern man, on the other hand, the belief that all law governing human action is the product of legislation appears so obvious that the contention that law is older than law-making has almost the character of a paradox. Yet there can be no doubt that law existed for ages before it occurred to man that he could make or alter it. ... A 'legislator' might endeavor to purge the law of supposed corruptions, or to restore it to its pristine purity, but it was not thought that he could make new law. The historians of law are agreed that in this respect all the famous early 'law-givers', from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been."
— F. A. Hayek, Law, Legislation and Liberty
"Since it is by law that what is legislated is legislated, in virtue of law's being what is this legislated? Is it in virtue of its being some awareness, or some showing, as what is learned is learned through the science that shows it? ... Aren't right, and law, most fine? ... And wrong, and lawlessness, most shameful? ... And the former preserves states and all other things, while the latter destroys and overturns? ... So one ought to think of law as something fine, and seek it as good? ... So it wouldn't be appropriate for the wicked official judgment to be law. ... And yet even to me law seems to be some sort of judgment; but since it's not the wicked judgment, isn't it clear that law, if indeed it is judgment, is the worthy? ... And what is worthy judgment? Is it not true judgment? ... Isn't the true, the discovery of what is so? ... Law, then, wishes to be the discovery of what is so .... but men, who (so it seems to us) do not at all times use the same laws are not at all times capable of discovering what the law wishes: what is so. ... What's right is right and what's wrong is wrong. And isn't this believed by everyone ... even among the Persians, and always? ... What is fine, no doubt, is everywhere legislated as fine, and what is shameful as shameful; but not the shameful as fine or the fine as shameful. ... And in general, what is so, rather than what is not so, is legislated as being so, both by us and by everyone else. ... So he who errs about what is so, errs about the legal. ... So in the writings about right and wrong, and in general about ordering a state and about how a state ought to be organized, what is correct is royal law, while what is not correct, what seems to be law to those who lack knowledge, is not, for it is lawless."
— Plato, Minos (5th c. B.C.)
"But what is violence and lawlessness, Pericles? Isn't it when the stronger party compels the weaker to do what he wants by using force instead of persuasion? ... Then anything a despot enacts and compels the citizens to do instead of persuading them is an example of lawlessness? ... And if the minority enacts something not by persuading the majority but by dominating it, should we call this violence or not? It seems to me that if one party, instead of persuading another, compels him to do something, whether by enactment or not, this is always violence rather than law. Then if the people as a whole uses not persuasion but its superior power to enact measures against the propertied classes, will that be violence rather than law?"
— Xenophon, Recollections of Socrates (5th c. B.C.)
"I find that it has been the opinion of the wisest men that law is not a product of human thought, nor is it any enactment of peoples, but something eternal .... From this point of view it can be readily understood that those who formulated wicked and unrighteous statutes for nations, thereby violating their trust and compact, put into effect anything but laws. It may thus be clear that in the very definition of the term law there inheres the idea and principle of choosing what is right and true. ... What of the many deadly and pestilential statutes which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physicians' prescriptions."
— Cicero, Laws (1st c. B.C.)
"Jurisprudence is acquaintance with things human and divine, the knowledge of what is right and what is wrong. ... These are the precepts of the law: to live rightly, not to wrong another, and to render to each his own."
— Institutes of Justinian (6th c. A.D.)
"The Roman jurist was a sort of scientist: the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concerning their plants or their production. Hence, private Roman law was something to be described or to be discovered, not something to be enacted –– a world of things that there were, forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will."
— Bruno Leoni, Freedom and the Law
"The Anglo-Saxon courts, called moots, were public assemblies of common men and neighbors. The moots did not expend their efforts on creating or codifying the law; they left that to custom and to the essentially declaratory law codes of kings. ... As in other customary legal systems, the moots typically demanded that criminals pay restitution or composition to their victims .... The law codes of early medieval Europe consisted largely of lists of offenses and the corresponding schedules of payments. In issuing these, Kings were not legislating in the modern sense: they were rather codifying and declaring already existing custom and practice."
"When a case arises for which no valid law can be adduced, then the lawful men or doomsmen will make new law in the belief that what they are making is good old law, not indeed expressly handed-down, but tacitly existent. They do not, therefore, create the law: they 'discover' it."
— Fritz Kern, Kingship and Law in the Middle Ages
"As Augustine says, that which is not right seems to be no law at all; wherefore the force of a law depends on the extent to which it is right. ... Consequently, every human law has the nature of law only to the extent that it is derived from the law of nature. But if, in any point, it deviates from the law of nature, it is no longer a law but a perversion of law. ... when an authority imposes on his subjects burdensome 'laws' conducive not to the common good but rather to his own cupidity and vainglory .... the like are acts of violence rather than laws .... wherefore such 'laws' do not bind in conscience .... A tyrannical government is not right ... Consequently, there is no sedition in disturbing a government of this kind .... Indeed, it is the tyrant, rather, that is guilty of sedition .... If a thing is of itself contrary to natural right, the human will cannot make it right ...."
— Thomas Aquinas, Summa Theologiæ (13th c.)
"A human legislator does not have a perfect will, as God has; and therefore ... such a legislator may sometimes prescribe unjust things, a fact which is manifestly true; but he has not the power to bind through unjust laws, and consequently, even though he may indeed prescribe that which is unjust, such a precept is not law, inasmuch as it lacks the force or validity to impose a binding obligation."
— Francisco Suarez, On Laws, and on God as Legislator (17th c.)
"Nihil quod est contra rationem est licitum: nothing which is against reason is lawful. It is a sure maxim in law, for reason is the life of law."
— Richard Overton, A Defiance Against All Arbitrary Usurpations or Encroachments (17th c.)
"These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render every one its due; to which three general principles Justinian has reduced the whole doctrine of law. ... [God] has graciously reduced the rule of obedience to this one paternal precept, 'that man should pursue his own happiness.' This is the foundation of what we call ethics, or natural law. ... This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. ... Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them .... For that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. ... [A judge is] sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet .... if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm ...."
— William Blackstone, Commentaries on the Laws of England (18th c.)
"But let the origin of government be placed where it may, the end of it is manifestly the good of the whole. Salus populi suprema lex esto [let the welfare of the people be the supreme law], is of the law of nature .... To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5: Omnipotency cannot do it. The supreme power in a state, is jus dicere [to state the right] only: — jus dare [to give the right] strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void: and so it would be adjudged by the parliament itself, when convinced of their mistake. Upon this great principle, parliaments repeal such acts, as soon as they find they have been mistaken, in having declared them to be for the public good, when in fact they were not so."
— James Otis, The Rights of the British Colonies Asserted and Proved (18th c.)
"... justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by human power. ... It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name.
It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law. Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, –– that is, all the laws of their own making, –– have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. ... It is intrinsically just as false, absurd, ludicrous, and ridiculous to say that lawmakers, so-called, can invent and make any laws, of their own ... as it would be to say that they can invent and make such mathematics, chemistry, physiology, or other sciences, as they see fit .... "
— Lysander Spooner, Letter to Grover Cleveland (19th c.)
"I deny that legislators make law. They create legal Acts, statutes, which may or may not coincide with real Law, and in fact seldom do. ... the great majority of such legislative Acts are intended to prevent or hamper or stop harmless and useful human action, so the enforcement of them has that lamentable effect."
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