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May. 11th, 2006 01:17 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
mi_guidaLex iniusta non est lex – What does this mean? Should this view be attributed to all natural lawyers? Consider Finnis’ view of the matter.
Literally translated, lex iniusta non est lex means, “An unjust law is not law”. We must, however, consider the sense of the phrase, rather than its literal meaning. “Unjust”, and the meaning attributed to it in any given context, will alter the sense of the phrase and thus our conception of whether or not an unjust law can still be considered law. It is clear that we must investigate this connection between law and morality, as both have a common use of the word – as well as the notion – of justice or injustice.
In the traditional formulation of Natural Law, Aquinas said that human nature is intrinsically good because it was created by God. Therefore, the body and mind together are inclined to the good. Certain actions, discoverable and immanent in nature, are intrinsically good, so it is in human nature and part of the Natural Law to pursue these goods. These goods, and the pursuit thereof, are evident in legal systems. Hobbes said that the world has a natural state of chaos, and it is human nature to work for the common good by establishing a society, or several societies, with a governing authority. Each such society is a community of mutual service where the end of each part of that society contributes to the overall end, the common good. The ruler of a society has responsibilities: to uphold the unity of peace; to direct the multitude to the common good; to correct what is wrong; to perfect what can be improved; and to provide what is needed through a good life through the suppression of vice and the advancement of virtue in enacted laws. Human laws should, according to traditional Natural Law, mirror the Natural Law to protect society and leave citizens free to fulfil their potential. However, human law is framed for imperfect humans, and so not all vices can be forbidden, as human law cannot attempt to do what nature cannot. In enacting just and moral laws, the authorities must exercise right use of reason, for as Aquinas said, “Law is nothing but a dictate of practical reason issued by a sovereign who governs a complete community.”
This conception of laws as being posited by man in accordance with the law of God, or the Natural Law, has been echoed by Martin Luther King Jr. However, at this stage the morality of law as Natural Law is still intrinsically linked to theology, following the precept of St Paul in Romans 13 that “every person [should] be subject to their governing authorities. For there is no authority except from God, and those that exist have been instituted by God.” Whilst it is worth noting that the original conformation of Natural Law by the Cicero and the Stoics consisted essentially of right use of reason in conformity with nature, with no mention of religion or any authority conferred thereby, it was Hugo Grotius who finally severed the link between the precepts of Natural Law and religion when he said that “even the will of an omnipotent being cannot change or abrogate” Natural Law, which “would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs.”
In the traditional jurisprudential view, just laws are immanent in nature. They cannot be created, they are discovered or found. They emerge as constituents of legal systems though the resolution of conflicts in the common law, but they are not posited in the sense of being created and enacted as codified law. We cannot understand law without reference to some intrinsic moral value or purpose to it.
Law and morality can be said to be generally related in that every law has a basic moral aim. A hospital, or a health service and the laws governing it, could be viewed from an institutional or functional approach, but to do so would be to ignore the basic moral purpose of working towards the common good by alleviating suffering and thus increasing happiness, the basic aim in the older Natural Law theories. Problems arise where two people from different societies hold two different and conflicting things to be moral and thus part of the law, as this introduces the concept of moral relativism. However, it is arguable that this is no bar to the intrinsic link between law and morality, as what is a law and moral in a particular society is a law in that legal system.
Hart held that law is not merely applied morality. The validity of law, in Hart’s conception, comes from the practices of the officials of the system in how they use and accept the rules. Duff has agreed with Hart’s logic and arguments in so far as the fact that there is some link between law and morality. Existing social practices, which tend to exist because they lead to the common good, are validated by the actions of the officials and their acceptance of the rule of recognition. However, Duff queries whether the officials are following social rules, or are being guided by them. If they accept the rule of recognition, there is some part of the internal aspect as expressed by hart which seems to contain some acceptant of the rules as morally good. Following rules through fear of sanctions, as in the command theory as criticised by Hart, means that people are acting for the wrong motivations. Social practices must exist for the ultimate achievement of certain values or ends, though these need not in themselves necessarily be moral values. However, as long as these values add to the common good of the community, then they, and the attached social practices, are inherently moral.
Fuller distinguishes between the internal morality of law and the external morality, which he said was concerned with the basic question of whether laws were just or unjust. He said that the internal morality of law consisted of eight principles, namely:
1) there must be rules;
2) they must be prospective, not retrospective;
3) the rules must be published;
4) the rules must be intelligible;
5) the rules must not be contradictory;
6) compliance with the rules must be possible;
7) the rules must not be constantly changing;
8) there must be congruence between the rules as declared and as applied by officials.
Where two people have a disagreement about whether or not a particular law is just or unjust, it could be that both have applied that eight principles yet achieved a different result.
We understand law by reference to the purposes of it, particularly the purpose of an ideal state of affairs in accordance with the rule of law as enacted through the use of the eight principles. Law is a method of governance or social control (as opposed to methods such as organised coercion, assuming we reject the command theory and sanctions along with Weber’s view that the state is the monopoly of violence) which entails moral commitments. The two key moral commitments are to citizens as rational purposive agents capable of their regulating their conduct by rules, and to the values of the rule of law as expressed in the eight principles. These eight principles are internal to law, and so as values play a different rôle to values such as equality and justice. It is the duty of a judge to apply the law; whilst this may not include considerations of obviously moral values, it must include Fuller’s eight principles. This, Fuller says, is the difference between fidelity to law and deference to authority.
However, it would be logically possible to conform to the eight principles, and thus enact valid law, yet get unjust laws resulting from this process. This is what led Hart to say the Fuller’s inner morality of law is “compatible with very great iniquity”. For example, it is arguable that the Nazi laws were evil yet came out of a legal system. However, this is easy to dismiss as a problem, because the Nazi regime falls foul of the eight principles and the rule of law on a number of counts. Much harder to reconcile is the apartheid laws of South Africa.
Fuller said that it could be logically consistent for evil laws and the eight principles to co-exist, but they were very unlikely to be found together, if only because an evil regime likely to meet opposition from its subjects would be unlikely to choose to apply its laws through the precepts of the rule of law. He explained the problem of vague “race” rules, as in apartheid South Africa, as contravening both the requirement of clarity and the requirement of congruence between declared law and official action. He also noted that under the concept of Natural Law, the state must have a commitment to their citizens as rational purposive agents, which would be highly unlikely under a tyrannical authority. Fuller felt that all seeming injustices in the law, for example in laws against homosexuality, should be taken back as not being law: not because they offend against a sense of external morality (at least in a permissive society, again raising the question of relative morality) as being unjust, but because they flout one or more of the eight principles which make up the internal morality of law.
Hart’s criticism of Fuller’s theory falls down when we take distance ourselves from the details and look at the sense of what Fuller is saying. Whilst it could be argued that it is possible for the eight principles to co-exist with unjust laws, this does not mean that compliance with these eight principles, law’s internal morality, does not have an inherent moral value. The public and predictable nature given by adherence to the rule of law in even an evil regime gives the citizens areas of freedom in which they may actively oppose the regime.
Kramer criticised Fuller’s theory on the basis that the morality of law depends on the content of the law and a moral analysis of official deviations from them; these two have separate values, as the content of laws may be unjust but deviation from those rules by officials in morally good, and vice versa. However, the eight principles of Fuller’s theory are desirable, because they provide interstices of liberty in which citizens can act freely, thus giving them the opportunity for both purposive creativity and exploiting their freedom to act against an evil regime.
This oversimplification is what makes Kramer’s argument weak. It ignores the fact that “benign” deviations from legality may have bad consequences for freedom, as citizens will not know when they are or are not free to act as they do knot know if the law will be deviated from in their case or not. Whilst the application of the eight principles will not always lead to a moral outcome – honesty is good and it is the nature of humans to seek it, but there may be circumstances where it is right to lie, though this is to be regretted – it is generally best for the common good and overall morality if we have the rule of law as expressed through the eight principles.
A problem arises where we allow judges not to enforce wicked laws, or to twist laws to allow victims of oppression to escape official persecution. In such cases, however, there is no black and white “correct” answer in terms of morality, as the judges have to balance different standards of morality; the value of the eight principles is just one of those moral standards. The moral cost of deviating from a wicked law could be greater than applying that law, as deviation would create uncertainty and undermine general principles of justice. When considering the morality of a law and how that affects its status as a law, it is not the individual laws we must consider, but the fundamental morality of the legal system.
Finnis’ view of law and morality begins with the premise that “good” does not mean morally good, but instead has the sense of “flourishing” or “well-being”. Morality is, he said, grounded in a concern for the objective goods, such as knowledge and aesthetic experience. It is clear why individuals would desire to pursue these for their own benefit, but less clear why people would pursue them for the benefit of others. However, people do not act just out of self-interest, but out of a generalised concern for others. Finnis argues that friendship itself is an objective good, because it involves caring about the other person for their own sake, as well as the self-interested life-enriching benefits it brings for the self. He draws an analogy between a political community and a friendship, or friendship group, as both uphold the objective good of sociability, which is in human nature, and the ultimate aim of upholding the common good.
Some people, such as Kant, have taken the alternative stance of contrasting prudential concern for the self with moral concern for others: however, such a viewpoint would, it seems, simply make it acceptable for everyone to act in a selfish fashion. Plato and Aristotle said that our moral concern for others is grounded in our concern for the flourishing of our own lives. The problem here with Finnis’ theory ids that it draws a distinction between friends and non-friends, people who are part of a community and people who aren’t. This raises, yet again, the issue of a relative morality, and thus not Natural Law as such. When we say lex iniusta non est lex, and unjust law is not a law, we must ask ourselves for whom it is that the unjust law is not a law. Socrates said that you are bound by the laws of your legal system when you choose to remain there, even if they seem unjust: they are still law if they have been properly enacted and you the citizen have accepted them. On the other hand, Henry Thoreau put forward a duty of civil disobedience, in which an unjust law is still law, but one that citizens have a duty to disobey. The question of obedience to or deviation from laws is, however, a separate question.
Finnis is not trying to follow the traditional Natural Theorists. He invokes the objective good of practical reasonableness, which structures the pursuit of other basic goods, including the principle that there should be “no arbitrary preferences amongst humans”. However, morality demands concern for others, and a degree of self-sacrifice (as Hart said, obligations to do something that are intended to work for the common good often involve self-deprivation or self-sacrifice). In the extreme, we should sacrifice everything to care for others. However, this would require acting in a way humanity never could or would do, within the bounds of human nature, and morality would be wrong to demand this. Laws cannot be said to be unjust or immoral in not requiring complete self-sacrifice.
Under a utilitarian argument, looking after one’s own welfare is a much more effective way of caring for the common good, because people know what they themselves require. However, Finnis rejects such teleological reasoning, saying that the objective goods are incommensurable and cannot be mixed or balanced; there must be some degree of general impartial concern that is not specifically for the self or for others.
Statutes and enacted law do not have normative language in them, speaking in terms of “It is an offence to…” rather than “One ought not to…”, but people understand and read in a normative content regardless. General legal norms and principles are, Finnis argues, backed up by being enacted in accordance with the rule of law. The act of positing law can and should be guided by moral principles and rules, as a matter of objective reasonableness. Moral norms justify the institution of positive law, the main techniques and institutions within that institution, and the institutions regulated and sustained by law. It would ,Finnis says, be immoral to have a systems not regulated thus, by practical reasonableness, which is the basis of moral norms.
Therefore, if we interpret lex iniusta non est lex as referring not to individual laws, but to legal systems, we can see that all the Natural Law theorists argue to approximately the same point: that it is the morality of the legal system which is key, and which in some sense grants morality to individual laws.
Please comment. Tell me they're talking rubbish. Tell me I'm talking rubbish. It's all fun.
Literally translated, lex iniusta non est lex means, “An unjust law is not law”. We must, however, consider the sense of the phrase, rather than its literal meaning. “Unjust”, and the meaning attributed to it in any given context, will alter the sense of the phrase and thus our conception of whether or not an unjust law can still be considered law. It is clear that we must investigate this connection between law and morality, as both have a common use of the word – as well as the notion – of justice or injustice.
In the traditional formulation of Natural Law, Aquinas said that human nature is intrinsically good because it was created by God. Therefore, the body and mind together are inclined to the good. Certain actions, discoverable and immanent in nature, are intrinsically good, so it is in human nature and part of the Natural Law to pursue these goods. These goods, and the pursuit thereof, are evident in legal systems. Hobbes said that the world has a natural state of chaos, and it is human nature to work for the common good by establishing a society, or several societies, with a governing authority. Each such society is a community of mutual service where the end of each part of that society contributes to the overall end, the common good. The ruler of a society has responsibilities: to uphold the unity of peace; to direct the multitude to the common good; to correct what is wrong; to perfect what can be improved; and to provide what is needed through a good life through the suppression of vice and the advancement of virtue in enacted laws. Human laws should, according to traditional Natural Law, mirror the Natural Law to protect society and leave citizens free to fulfil their potential. However, human law is framed for imperfect humans, and so not all vices can be forbidden, as human law cannot attempt to do what nature cannot. In enacting just and moral laws, the authorities must exercise right use of reason, for as Aquinas said, “Law is nothing but a dictate of practical reason issued by a sovereign who governs a complete community.”
This conception of laws as being posited by man in accordance with the law of God, or the Natural Law, has been echoed by Martin Luther King Jr. However, at this stage the morality of law as Natural Law is still intrinsically linked to theology, following the precept of St Paul in Romans 13 that “every person [should] be subject to their governing authorities. For there is no authority except from God, and those that exist have been instituted by God.” Whilst it is worth noting that the original conformation of Natural Law by the Cicero and the Stoics consisted essentially of right use of reason in conformity with nature, with no mention of religion or any authority conferred thereby, it was Hugo Grotius who finally severed the link between the precepts of Natural Law and religion when he said that “even the will of an omnipotent being cannot change or abrogate” Natural Law, which “would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs.”
In the traditional jurisprudential view, just laws are immanent in nature. They cannot be created, they are discovered or found. They emerge as constituents of legal systems though the resolution of conflicts in the common law, but they are not posited in the sense of being created and enacted as codified law. We cannot understand law without reference to some intrinsic moral value or purpose to it.
Law and morality can be said to be generally related in that every law has a basic moral aim. A hospital, or a health service and the laws governing it, could be viewed from an institutional or functional approach, but to do so would be to ignore the basic moral purpose of working towards the common good by alleviating suffering and thus increasing happiness, the basic aim in the older Natural Law theories. Problems arise where two people from different societies hold two different and conflicting things to be moral and thus part of the law, as this introduces the concept of moral relativism. However, it is arguable that this is no bar to the intrinsic link between law and morality, as what is a law and moral in a particular society is a law in that legal system.
Hart held that law is not merely applied morality. The validity of law, in Hart’s conception, comes from the practices of the officials of the system in how they use and accept the rules. Duff has agreed with Hart’s logic and arguments in so far as the fact that there is some link between law and morality. Existing social practices, which tend to exist because they lead to the common good, are validated by the actions of the officials and their acceptance of the rule of recognition. However, Duff queries whether the officials are following social rules, or are being guided by them. If they accept the rule of recognition, there is some part of the internal aspect as expressed by hart which seems to contain some acceptant of the rules as morally good. Following rules through fear of sanctions, as in the command theory as criticised by Hart, means that people are acting for the wrong motivations. Social practices must exist for the ultimate achievement of certain values or ends, though these need not in themselves necessarily be moral values. However, as long as these values add to the common good of the community, then they, and the attached social practices, are inherently moral.
Fuller distinguishes between the internal morality of law and the external morality, which he said was concerned with the basic question of whether laws were just or unjust. He said that the internal morality of law consisted of eight principles, namely:
1) there must be rules;
2) they must be prospective, not retrospective;
3) the rules must be published;
4) the rules must be intelligible;
5) the rules must not be contradictory;
6) compliance with the rules must be possible;
7) the rules must not be constantly changing;
8) there must be congruence between the rules as declared and as applied by officials.
Where two people have a disagreement about whether or not a particular law is just or unjust, it could be that both have applied that eight principles yet achieved a different result.
We understand law by reference to the purposes of it, particularly the purpose of an ideal state of affairs in accordance with the rule of law as enacted through the use of the eight principles. Law is a method of governance or social control (as opposed to methods such as organised coercion, assuming we reject the command theory and sanctions along with Weber’s view that the state is the monopoly of violence) which entails moral commitments. The two key moral commitments are to citizens as rational purposive agents capable of their regulating their conduct by rules, and to the values of the rule of law as expressed in the eight principles. These eight principles are internal to law, and so as values play a different rôle to values such as equality and justice. It is the duty of a judge to apply the law; whilst this may not include considerations of obviously moral values, it must include Fuller’s eight principles. This, Fuller says, is the difference between fidelity to law and deference to authority.
However, it would be logically possible to conform to the eight principles, and thus enact valid law, yet get unjust laws resulting from this process. This is what led Hart to say the Fuller’s inner morality of law is “compatible with very great iniquity”. For example, it is arguable that the Nazi laws were evil yet came out of a legal system. However, this is easy to dismiss as a problem, because the Nazi regime falls foul of the eight principles and the rule of law on a number of counts. Much harder to reconcile is the apartheid laws of South Africa.
Fuller said that it could be logically consistent for evil laws and the eight principles to co-exist, but they were very unlikely to be found together, if only because an evil regime likely to meet opposition from its subjects would be unlikely to choose to apply its laws through the precepts of the rule of law. He explained the problem of vague “race” rules, as in apartheid South Africa, as contravening both the requirement of clarity and the requirement of congruence between declared law and official action. He also noted that under the concept of Natural Law, the state must have a commitment to their citizens as rational purposive agents, which would be highly unlikely under a tyrannical authority. Fuller felt that all seeming injustices in the law, for example in laws against homosexuality, should be taken back as not being law: not because they offend against a sense of external morality (at least in a permissive society, again raising the question of relative morality) as being unjust, but because they flout one or more of the eight principles which make up the internal morality of law.
Hart’s criticism of Fuller’s theory falls down when we take distance ourselves from the details and look at the sense of what Fuller is saying. Whilst it could be argued that it is possible for the eight principles to co-exist with unjust laws, this does not mean that compliance with these eight principles, law’s internal morality, does not have an inherent moral value. The public and predictable nature given by adherence to the rule of law in even an evil regime gives the citizens areas of freedom in which they may actively oppose the regime.
Kramer criticised Fuller’s theory on the basis that the morality of law depends on the content of the law and a moral analysis of official deviations from them; these two have separate values, as the content of laws may be unjust but deviation from those rules by officials in morally good, and vice versa. However, the eight principles of Fuller’s theory are desirable, because they provide interstices of liberty in which citizens can act freely, thus giving them the opportunity for both purposive creativity and exploiting their freedom to act against an evil regime.
This oversimplification is what makes Kramer’s argument weak. It ignores the fact that “benign” deviations from legality may have bad consequences for freedom, as citizens will not know when they are or are not free to act as they do knot know if the law will be deviated from in their case or not. Whilst the application of the eight principles will not always lead to a moral outcome – honesty is good and it is the nature of humans to seek it, but there may be circumstances where it is right to lie, though this is to be regretted – it is generally best for the common good and overall morality if we have the rule of law as expressed through the eight principles.
A problem arises where we allow judges not to enforce wicked laws, or to twist laws to allow victims of oppression to escape official persecution. In such cases, however, there is no black and white “correct” answer in terms of morality, as the judges have to balance different standards of morality; the value of the eight principles is just one of those moral standards. The moral cost of deviating from a wicked law could be greater than applying that law, as deviation would create uncertainty and undermine general principles of justice. When considering the morality of a law and how that affects its status as a law, it is not the individual laws we must consider, but the fundamental morality of the legal system.
Finnis’ view of law and morality begins with the premise that “good” does not mean morally good, but instead has the sense of “flourishing” or “well-being”. Morality is, he said, grounded in a concern for the objective goods, such as knowledge and aesthetic experience. It is clear why individuals would desire to pursue these for their own benefit, but less clear why people would pursue them for the benefit of others. However, people do not act just out of self-interest, but out of a generalised concern for others. Finnis argues that friendship itself is an objective good, because it involves caring about the other person for their own sake, as well as the self-interested life-enriching benefits it brings for the self. He draws an analogy between a political community and a friendship, or friendship group, as both uphold the objective good of sociability, which is in human nature, and the ultimate aim of upholding the common good.
Some people, such as Kant, have taken the alternative stance of contrasting prudential concern for the self with moral concern for others: however, such a viewpoint would, it seems, simply make it acceptable for everyone to act in a selfish fashion. Plato and Aristotle said that our moral concern for others is grounded in our concern for the flourishing of our own lives. The problem here with Finnis’ theory ids that it draws a distinction between friends and non-friends, people who are part of a community and people who aren’t. This raises, yet again, the issue of a relative morality, and thus not Natural Law as such. When we say lex iniusta non est lex, and unjust law is not a law, we must ask ourselves for whom it is that the unjust law is not a law. Socrates said that you are bound by the laws of your legal system when you choose to remain there, even if they seem unjust: they are still law if they have been properly enacted and you the citizen have accepted them. On the other hand, Henry Thoreau put forward a duty of civil disobedience, in which an unjust law is still law, but one that citizens have a duty to disobey. The question of obedience to or deviation from laws is, however, a separate question.
Finnis is not trying to follow the traditional Natural Theorists. He invokes the objective good of practical reasonableness, which structures the pursuit of other basic goods, including the principle that there should be “no arbitrary preferences amongst humans”. However, morality demands concern for others, and a degree of self-sacrifice (as Hart said, obligations to do something that are intended to work for the common good often involve self-deprivation or self-sacrifice). In the extreme, we should sacrifice everything to care for others. However, this would require acting in a way humanity never could or would do, within the bounds of human nature, and morality would be wrong to demand this. Laws cannot be said to be unjust or immoral in not requiring complete self-sacrifice.
Under a utilitarian argument, looking after one’s own welfare is a much more effective way of caring for the common good, because people know what they themselves require. However, Finnis rejects such teleological reasoning, saying that the objective goods are incommensurable and cannot be mixed or balanced; there must be some degree of general impartial concern that is not specifically for the self or for others.
Statutes and enacted law do not have normative language in them, speaking in terms of “It is an offence to…” rather than “One ought not to…”, but people understand and read in a normative content regardless. General legal norms and principles are, Finnis argues, backed up by being enacted in accordance with the rule of law. The act of positing law can and should be guided by moral principles and rules, as a matter of objective reasonableness. Moral norms justify the institution of positive law, the main techniques and institutions within that institution, and the institutions regulated and sustained by law. It would ,Finnis says, be immoral to have a systems not regulated thus, by practical reasonableness, which is the basis of moral norms.
Therefore, if we interpret lex iniusta non est lex as referring not to individual laws, but to legal systems, we can see that all the Natural Law theorists argue to approximately the same point: that it is the morality of the legal system which is key, and which in some sense grants morality to individual laws.
Please comment. Tell me they're talking rubbish. Tell me I'm talking rubbish. It's all fun.
