Foundations of the Law: An Appetizer

Major Contentions

  • We assume that law has some relation to justice but find it difficult to articulate what it is.
  • The relation is frequently thought of as fairness, which is inherently comparative between persons but which has two meanings, one stressing absolute equality and the other comparative superiority, meaning that seeking fairness as a term of proportionality can end in endorsing any preexisting conclusion.
  • Justice demands what is due subject to the moral principle of ought implies can.
  • Every citizen has to satisfy herself that the law has a right to compel her obedience, but what gives law that right?
  • Asking that question axiomatically brings law itself itself into question by dissolving the trust that powers legal authority, but it is a valid question for any citizen to pose in a democracy, indicating that authority alone is inadequate to answer it.
  • The oldest justification for law, divine authority seeking trust, is clearly inadequate to earn the sanction of citizens in a democracy.
  • A default alternative to divine authority is contractarianism, which defines “justice” as “the will of the majority,” but this puts minorities in the same relation to the majority as the majority would be to tyrannical rule and so grants minorities no continuing reason to sanction laws that disadvantage them.
  • Also, if contractarianism considers individuals the source of legal power, what prevents individuals from nullifying laws with which they disagree?
  • A second objection is that nothing guarantees that a majority will endorse legality that delivers justice to them either since history has shown numerous examples of majorities sanctioning laws that violated their long-term interests.
  • When these objections are considered, contractarianism seems less supportive of justice than suppressive of dissent, and in this respect, it is similar to a third justification for law: legal positivism.
  • Legal positivism considers justice coterminal with codified law and is the default position of legal experts for whom a theory of justice would be too contentious; therefore, most jurists promote positive law as a brute reality brooking no theoretical challenge, but this also fails to make justice the standard of value.
  • A further problem is that legal positivism is necessarily related to polity and therefore must be as relativist as divine command and contractarian justifications for law, allowing no universal defense of civil disobedience or human rights.

You receive a speeding ticket. Plaintively, you ask why the speed limit was set at forty-five. It should be fifty-five, the speed you are told you were going. But the law’s the law, and the cost of fighting it in time and energy isn’t worth the hassle. So you pay the fine and forget about it. The story ends with only a thinner bank balance, a warier eye, and a mild sense of resentment. But give it a bit of thought and you will find in the episode a parable about the nature of the law.

Can you put it away? What is the source of that little niggling negative residue that remains? Why does the entire event leave you with a slightly bitter aftertaste, the bile of resentment?

Let me nurture that bile for a moment and ask you to interrogate it. Could it be you think the cop was wrong, that he acted out of some personal animus in picking you out from among a fleet of speeders? Probably not. But there is something personal about the resentment, isn’t there? Looking at it objectively, you can really find nothing to complain about in the transaction, can you? Should someone else have related the tale, you might have smiled and said, “Well, you were speeding, weren’t you?”

This sense of victimization makes little sense then, does it? But let us keep it alive for a moment longer. I think it is the trickle you see just before the dam breaks, the wisp of smoke before the whole place goes up in flames. And if you respond that I am being too apocalyptic, I ask you to transfer your attention to other, stronger resentments as you search your memory spanning the last week, perhaps over some news story or colleague’s anecdote that leaves that same bitter aftertaste. That tinge of disgust over the ticket is the spume at the top of a tsunami of resentment so many of us feel for the intrusion of the law in our lives. What can it mean?

Only one thing. It speaks in our inarticulate whisper or in the screams of protesters in the street, “The law is unjust.” Now even facing that simple declaration is too difficult for some, for even thinking it compels us to examine the nature of that injustice, leading to further tiresome consideration of the nature of justice as it relates to the law. And that topic seems just too difficult to think about. Only it isn’t (see “Justice Is Almost Everything“).

Justice is a very simple concept at its root. It means “to give to each her due.” Now that will lead to asking who gives and what is due. These are fair questions that lead us further down the investigative path, but first let us narrow it a bit. We can eliminate for the purposes of this discussion a wide view of justice, say between individuals, in favor of considering the provenance of law.

At this point we should probe your resentment over getting the ticket. First, we face the question of fairness. Your complaint over being singled out from among the flock of speeding cars is an appeal to fairness, which can be defined as treating individuals who are the same as the same as well as treating individuals who are different as different in ways appropriate to those distinctions. But that definition poses problems for both kinds of comparison. Does every guest at the birthday party get the same size piece of cake, which treats all guests equally fairly or does the birthday boy get a larger size, which acknowledges his special status? Without nailing down which definition of fairness we are employing, nearly any outcome can be claimed as fair. Secondly, fairness must compare person to person without regard to what they are due inherently as individuals (see “Economic Justice”).So no question the cop treated you unfairly. Lots of cars were breaking the speed limit. But a moment’s honest thought should dissuade you from thinking fairness and justice to be identical. By that standard no murderer should ever be punished if even one ever escapes arrest. Every moral rule relies on the principle of “ought implies can,” which correctly argues that no one should be held morally responsible for a choice unless she is able to make the choice. It is fine to say that cop ought to have ticketed all those speeders, but as he could not catch all of them, he caught those he could. That would be you. But you might protest, if the ticket was not fair, how can it be just? It can be because you deserved it. The law set a speed limit and you violated it. You earned that ticket. It was your due.

But wait, you say. The law may set the speed limit at whatever pleases it, but how does that obligate me? I was driving safely, felt completely in control. That speed limit was set too low. The law was wrong.

Now you have really stepped in it! Just to be clear, you are now claiming it was not the cop who was unjust but something broader: that the set speed limit, the law, was unjust. You were not due that ticket. Now how could you hope to justify that kind of claim? So you turn the question back on the judge (the one you never got to meet: you paid the fine, remember?). How could she justify setting the speed limit so low? What gives the legislature who delegated the agency or whatever the right to set it at all? And while we are at it, let’s not stop there. What gives any law the right to compel your obedience?

At this point you might be tempted to step back from the ledge you’ve put yourself on with some very commonsense observations. After all, you concede, somebody has to decide. We can’t just go as fast as we want to. There would be wrecks. People would be killed. Chaos. If you are easily placated, you might lightly chide yourself at this point for your resentment over the ticket and try to let it go. If you are more stubborn, you will think the highway department, or the traffic engineer, or whoever made up that ridiculous speed limit was as incompetent as government itself, and so you might return to questioning the right of the government to set this law. To set any law. Just how arbitrary is this business of the law? At this point, you are challenging the totality of legal authority. You are beginning to withdraw the trust that you had willingly granted the law, challenging by your own judgment the wisdom of its dictates, submitting it to your own reasoning. That rational challenge is a problem though, for reasons you have already identified. Something has to justify laws, doesn’t it? But merely by questioning — much less rejecting– its right to do that, you have begun to dissolve its authority, meaning the trust that sustains its powers of moral suasion, for the act of challenge dissolves authority utterly (see “Authority, Trust, and Knowledge). You were right to feel uneasy about this line of thought. For now that you ponder it, your trust has evaporated along with an easy acceptance of every law you are expected to follow, leaving only the core question: what does warrant the law?

The thought experiment just related encapsulates a pretty good interrogation of that question as it pertains to our everyday lives, a challenge every citizen has the duty to throw down and every government to answer. In a democracy, the institutional authority of the law is not merely a matter of trust. It relies on citizens’ active sanction.  And in truth you did more than complain. You also made a stab at theory that captures one of three serious justifications for granting power over our liberties to the law. But it is neither the oldest nor the best one….

If tradition could impart power, we might still be genuflecting at the altar of the most ancient justification for legal legitimacy: divine command. Every government of every stripe found the ultimate answer to the questions posed above in the power of a deity to command obedience. This was a worldwide phenomenon. It characterized all the means of political affiliation that history has proved feasible. If tribalism, dynasticism, or nationalism proved insufficient for social cohesion, it was sure to be fortified with theocracy to add divine authority to its decrees (see “Which Clash of Civilizations?”). We see the conjunction of these appeals from ancient Egypt, where pharaoh-worship boosted dynasticism, to contemporary Argentina, where Catholicism to this day burnishes the patina of the nation-state. For most of human history, it was inconceivable to imagine a law without divine heft to stiffen its spine. The most naked exercise of power could, it was thought, be redeemed if “God wills it.” Considering that a tenet of divine command was that the deity not only enforces but defines justice as it pleases, it is not surprising either that it has enjoyed such widespread appeal among rulers eager to work their will or that it eventually found itself rejected by those who sought a more intelligible basis for law (see “Divine Justice). After all, remember how angry you were at the perceived injustice of that ticket!

I have previously examined the nature of that rejection and the misery it engendered, so I see no need to review that moment of transference when political affiliation found itself desperate for new foundations (see “Premodern Authority”). If you felt a bit of vertigo when you began questioning your ticket, consider the disorientation felt in western civilization when the most ancient and revered basis for governmental authority collapsed into chaos! To be more precise, that moment lasted nearly two centuries, from 1517-1688, and, as you might imagine, it was pretty ugly (see Modernism’s Midwives). The actual divorce from divine command was only sealed in that glittering year, 1776.

Now we get to your theory, the one that challenged and replaced divine command. Why do we need laws? You predictably responded with this: because we need order to prevent chaos. Your answer is the same one that supports the founding of the United States. We know it as the social contract (see “Why Invent a Social Contract?). The essence of social contract theory is that government is the product of a conventional compact among citizens who agree to limit some of their own freedoms in the interest of social order. Please correct me if I am mistaken, won’t you? Isn’t this what you were thinking when you said that somebody had to set that speed limit and, though you might have set it higher, you must bow to the general will of the majority that chose to set it lower? Now this is undeniably the case, as far as it goes. The problem, I think, is that it doesn’t go far enough (see “Alienation of Civil Affection).

The essence of this justification is that it seeks no warrant for political affiliation beyond some pragmatic or convenient arrangement. It judges success by the same means as politicians do: by approval ratings. Social contract is wonderfully malleable. It works with any of the old forms of political affiliation: tribalism, dynasticism, nationalism, even a very tolerant theocracy. The distinction, of course, is that it seeks its power from below, rather than from above, from the majority of the people rather than from God. And that is quite important. But in practical terms this may be a distinction without a difference, for the legal warrant turns out to be equally authoritarian (see “When Is Civil Disobedience Justified?”). The individual who disagrees with a law is bound in the same way by divine command and social contract. He may protest to God as Job’s chorus did or to the majority as minorities have in more recent years, but his recourse is equally circumscribed. The problem is that he has nothing to appeal with, nothing to point to in a plea for justice. If you go before the judge, what could be your defense for exceeding the posted speed limit? You may be hazy on the exact mechanism, but something tells you that law was a product of some democratic process, that somehow you had some indirect say in its passing, though now you challenge whatever majority view produced it. That’s the social contract at work.

Our culture nudges us toward acceptance of that view not only because it greases the skids of our own lives by discouraging dissent but also because it forces its logic on our view of other political entities. If we get to choose our own laws, then every other political union may with equal justice choose its own laws organically from its own cultural conditions. And isn’t that what democracy demands? But consider two disturbing logical consequences of this conclusion. First, nothing in social contract mandates an acceptance of the general will except its raw power. Under a social contract arrangement, the minority is in the same relationship to the majority as the majority would be to a dictatorial ruler in a tyranny: they are obliged to follow the laws without recourse. We have no trouble condemning a dictatorship that oppresses the majority, yet we excuse the same inflexibility when 50% plus one oppresses the minority. Why is that? What sanctifies the will of a majority culture? What gives it a moral superiority to a minority, one sufficient to allow it the power to define what is just as whatever it wishes? I submit this is an insoluble problem for social contract theory, one responsible for at least some of your resentment over your ticket (seeTwo Senses of the Common Good”). One conclusion follows inevitably. If government is the result of an agreement by a culture to establish self-rule in any conventional form it wishes, what prevents minority cultures from withdrawing from the majority to govern themselves to whatever degree they think appropriate? After all, isn’t this the principle of nullification that moves many libertarians and states rightists, one indicated by the powers of state and local governments? If government is born of conventional agreements in self-selected groupings, what prevents cultures of any size from valuing their identity over the majority, down to family, and even all the way down to the individual who is, after all, the atomic unit of the social contract justification for government in the first place? Seen in this light, you, a culture of one, decidedly did not contract to that law, the proof being that you chose to break it. Further proof being that now you resent being spanked by it. Final proof being that your resentment is now making you not only frustrated but also confused. After all, you can’t fight City Hall! But that realization arises from the obvious question: what would you fight City Hall with? If social contract somehow obligates us to some agreement we may disapprove of, how can it be called just? Your ticket certainly did not rise to the level of oppression, but if it did, how could you justify a rejection of a majority rule that defines justice to be what it wills?

And that is surely a second objection to contractarianism: can’t the majority in a culture be wrong in that will for itself and, even more likely, can’t it wrong subcultures and individuals who question its will? By what standard could they justly challenge the social contract justification that deprives them of the ability to arbitrate the very definition of justice itself? If “what is due” is so elastic as to be defined by the general will, what can a dissenter appeal to? None seems possible if laws are synonymous with what the majority wants. But if they aren’t, what else can they be?

It is this hermetic and closed quality of social contract that resembles the category of justifications called legal positivism that makes up a third theory of law. It differs from divine command in that it can erect no clear external warrant for law. In contractarian theory, the majority replaces God as the source of justice, which flows up from the majoritarian contract rather than down from an absolute divinity; both make no space for individual appeal, though social contract at least allows majorities to shift law as they please. Legal positivism operates by a strong sense of being closed to challenge, at least as strong as divine command. God’s will may be non-negotiable, but the means of its transmission at least allows a bit of wriggle room for its target audience. Lawyers and jurists have eliminated that in legal positivism. It takes great pains to establish not only a clear sovereignty but also superbly clear codification of law and jurisdictional enforcement of its statutes.It requires adherents to define justice as equivalent to established law. In practice, the dissenter in social contract theory faces the same dead end as the heretic in divine command and the minority in social contract.

When you sought to dismiss your resentment with the adage, “the law’s the law,” you were appealing to legal positivism. The reason “you can’t fight City Hall” from within this theory is that you have no higher ground from which to challenge its rules. Every appeal to legal positivism works in just this way. It regards the law as an inert and unquestionable thing and our relationship to it as equally fixed. Lawyers must approach the law in this fashion; otherwise, legality would be a moving target laden with theory. Contractarian political theorists who regard constitutions and precedents as adequate justifications for law do too, for they seek no “oughts” beyond what is written. Despite their strenuous opposition to institutional authority in general and power disparities in particular, postmodernists (see Postmodernism Is Its Discontents”) must also see law as positivist because they recognize no objective morality that might direct or limit it, though that limitation certainly does not satisfy what they see as a need for morality that their theories can never satisfy. When you add up the non-negotiability of divine command and legal positivism, and the majoritarian domination of contractarianism and postmodern theory, the space for an actual moral justification for law shrinks to the vanishing point. The result is a cultural relativism that regards existing legal arrangements as beyond reproach or refutation.

And that bothers us. Or at least it should if only because we are oh so familiar with too many instances of the law being wrong. Wrong for minorities. Wrong for majorities, for that matter. But what does “wrong” mean in a theory that defines “right” by the will of the majority or the letter of the law? Something tells us a hermetic theory of government that defines justice as “whatever we say it is” rings too many twentieth century alarm bells, dredges up too much Jim Crow, too many Nuremberg Decrees, too much apartheid, too many tinpot dictators. History tells us it is both hubristic and dangerous.

The only choice is to appeal to a standard beyond the positive law, but how can we find one? What contemporary and universal standard could add a moral appeal to the law to shore it up with something beyond pragmatics, self-interest, and convention? This is obviously such a heavy carry yet also such a necessary one that we see a continuing appeal to return to a pure divine command solution to accomplish it, but that approach is historically doomed for three reasons. First, in this climate as opposed to the medieval age, we can find no unity in the divine voice. Second, political power has irrevocably relocated to the individual. Third, the trust that authority relies on for its warrant has been utterly shattered (see “The Fragility of Religious Authority”), so much so that all institutional authority suffers from a continuing challenge to its warrant. These causes have played themselves out most dramatically in the founding of the United States  and are unlikely to be renegotiated in a pluralistic and secular society (see “Theocracy and the Commandments”).

Nevertheless, we still see appeals to it, diluted by a recognition of history perhaps, but no less vivid for that. The reason, I think, is that many persons simply cannot imagine a personal moral standard not based on divine command, much less a political one, yet they also recognize the impossibility of imposing that authority on a polity that embraces social contract theory, despite that theory’s glaring flaws (see “Belief in the Public Square”).

Given these glaring flaws in the first three justifications for government, we are left pinning our hopes to the last one. So what is this fourth warrant for the power of law and what is its source?  As originally framed during the heyday of divine command, natural law theory was a subsidiary one dependent on the power of the deity to define justice and command obedience, yet though it may be seen to complement God’s plan, it need not be reliant on it. Its roots trace to Aristotle, who saw in the rationally apprehensible order of nature a structure entirely consistent with religious belief. Things, he said, are made for a purpose. They fit together in a larger order that sustains reality. Rain waters crops, so we may say that is its purpose. Crops feed animals. Animals sustain man. Man… His assumption was that all things, man included, have a niche and a role to play in the great structure of nature. He called that role a thing’s formal cause. Most of nature must participate in that process, and so things move toward a final cause, a completion, that fulfills their formal cause in the natural order of events. But persons are not things, and so may choose a whole range of choices, not all congruent to their formal cause, so they find themselves having to use their own reasoning to tease out their moral life through experience. Aristotle built an entire system of morality on those choices and called it virtue ethics (see “A Virtue Ethics Primer”). This was in the fourth century before Christ. It was inevitable that the long reign of divine command that warranted law for thousands of years would domesticate what Aristotle thought of as a secular philosophy and tailor it to religious purposes. The paragon of this position was Thomas Aquinas, who so clearly structured Dr. King’s view of the issue. In Aquinas’s worldview, every warrant had to bow to divine command. Man’s formal cause must be derived from his created religious nature and from God’s plan for his salvation, though our sinful nature made success uncertain. Religious social institutions thus were legitimized in the divine command tradition by a natural law gloss. For a thousand years after the fall of Rome in the West, extant political structures were defended without exception by recourse to “natural law.” The religious overlay was too tempting: it assumed “whatever is, is right,” while yielding to that old temptation to stiffen the law with divine authority. If the dictates of that law seemed unjust, they must be viewed as either a delusion or an injustice to be corrected in the afterlife. It is little wonder that the theories of political identity rooted in social contract that rejected divine command in the wake of the Reformation found much to dislike about the religious roots of natural law theory. But history has shown much to dislike about social contract theory and legal positivism too, particularly in the twentieth century.

Though always separable from divine command, natural rights theory has found support from biological and neurological science only in our own generation as these true empirical studies began to supersede the twentieth century’s unfortunate reliance on the human sciences (see “The Calamity of the Human Sciences). One need not appeal to divine support for a formal cause. It seems evolution has fated humans to be a certain kind of being in the world, one that has species-specific needs and species-specific means of satisfying them (see “Needs Anchor Morality), and those means may be deduced by a reasoning capability that is the source of the human dignity that Dr. King defended in Birmingham.  Rather than look for legitimacy in some specious contract resultant from some equally delusional realization made in some imagined state of nature, we might turn to our own needs as we experience them and the political rights they necessitate (see “Needs and Rights) to find the measure of positive law.

Such a rotation handily eliminates the sense of outrage you felt for getting that ticket. Yes, you might have felt you were driving safely at fifty-five miles per hour, but are you willing to risk your own and someone else’s life on that judgment (see “Our Freedom Fetish)? Is it worth the risk of injuring yourself or others if your judgment is mistaken? Do you consider yourself as qualified to judge the safe speed as the experts who laid the road and evaluated its conditions (see “Expertise”)? Do you endow every other driver coming in the opposite direction with the same level of autonomy to decide on his own “safe” speed? Considering all the goods the institutions of law and government deliver to you, can you dilute your indignity with gratitude for a civil order that is generally a just one, which allows you to fulfill your needs and uses law as an implement to encourage your recognition and fulfillment of those needs? Can you then grant it your full sanction despite this minor objection? If not, even if you can find a way to defend your own judgment to these objections, do you think that slowing down to forty-five miles per hour violates your rights (see “Natural and Political Rights), which is tantamount to say it deprives you of your needs?

I didn’t think so. But if your interrogation convinces you of the opposite, then you should regret not taking your case to court and defending your case before the judge on the grounds of a natural rights theory of law. That too is a duty to justice. By such metrics and such measures are laws made, judged, and perfected, but that process depends on first nesting them in a web of justice that both limits their power and renders it necessary.