Law, Philosophy of

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The part of philosophy that studies the nature of law, with particular reference to the origins and ends of civil law and the principles that should govern its formulation. The study may be elaborated systematically in the context provided by a particular philosophical school, or it may be elaborated historically in light of the teachings of various schools. This article adopts the former method and discusses, from the viewpoint of Christian (or scholastic) philosophy, the following topics: law and force, authority and law's origin, inadequate theories of the nature of law, justice and law, the end of law, historical sources of the realist conception of law, and present needs in legal theory.

Law and Force. Law is addressed to persons for the purpose of directing their conduct. It develops as one aspect of human culture and tends to become significant with the expansion of commerce. Because it functions as a directive, its subject matter involves the respect due to the person when property is apportioned for man's use. At times throughout history the priorities have become inverted, and law has tended to become so identified with property that persons who have been dissatisfied by a prevailing property distribution have revolted against the law.

Although its appeal is primarily to human reasoning power and its technique relies chiefly on persuasion, law has often been associated with the implementation of state power and spoken of as if it were identical with force. Properly, law is the alternative to force; resort to force usually signifies the failure of law to persuade. Again, resort to force, especially when applied in the protection of property, tends to associate the notion of law with fear rather than with confidence. Observance of law is thereby reduced to avoidance of punishment. The statement of the rule shifts from "do right," to "do what you will, but do not get caught"; and payment of a prescribed penalty is accepted as the equivalent of fulfilling the law. The result obviously is not the same, and may be neither desired nor desirable.

Traditionally law and liberty were spoken of together, not law and fear. To ascertain the sequence of events that caused freedom to be displaced by conformity, one must examine the relationship of law to authority. This in turn raises questions about the origin and source of law.

Authority and Law's Origin. Repeatedly Sacred Scripture is cited for the observation that all authority is from God. Kings anointed with ecclesiastical blessings, after solemn promises to rule "under God and the law" in Bracton's phrase, who adds, "for the law makes the king" (fol. 5b; ed. T. Twiss, Rerum Britannicarum medii aevi scriptores 1:39)have sometimes presumed to translate the inspired words into terms of their own, such as "the divine right of kings," with the Stuarts in England, or "l'état, c'est moi," with Louis XIV of France. The people, unable to reconcile arbitrary royal decrees with the scriptural admonition, revolted against the kings and left the exegesis of the words to the Church, as if the Church were outside the realities of human experience. Those who have subsequently aspired to govern in place of the kings have often widened the breach instead of reconciling their assumption of authority with Holy Writ. The question not yet satisfactorily answered, for governors and governed alike, is basically epistemological, viz, In what form can the authority that is from God be recognized?

The unanswered question is philosophical, and not merely doctrinal or theological, for those outside the organized Christian Church are equally affected by authority and are equally subject to the conditions of life as to a universal law. The Code of Hammurabi, the Mosaic Code, the customary law of India and of China, the laws of Solon and Draco among the ancient Greeks, the highly developed early law of the Romanswhich retained its significance centuries later in the Code of Justinianall indicate that law itself is close to the essence of man. When Justinian began his Code in the name of the Blessed Trinity, he added a Christian sanction to the work of the Roman jurists, without thereby excluding much that was formulated by pagans before the Christian Era began. The fact that the specific forms of law differ in various times and places is evidence of different conditions and degrees of comprehension, not of enclaves exempt from the universal law. The task of philosophy is to examine the relationship between human conduct and the observed universal order, and to give a satisfactory account of that relationship. It may begin with the theory of knowledge, with the question of how the natural law becomes known, but it ultimately must extend to the actual situation of man in his universe.

Natural Law, Truth, and Being. The notion of natural law has become less clear the more it has been discussed. Indeed so contradictory are some of the theories attributing authority to the natural law that the term has become divisive. Repudiated though it may be on this account, the notion of natural law has survived through so many centuries that some reconsideration of its underlying signification is needed.

As the pursuit of truth is the primary motivation in scientific discovery, so it is primary in ascertaining how the human mind participates consciously in the universal law. Human laws may be created, i.e., formulated or given shape, by men as a result of observations, inferences, and conclusions, and expressed not in stone or paint but in determinations, decisions, and judgments. To the extent that these judgments conform to the actually existent order of nature, they are acceptable as an expression of truth, but to the extent that some elements may not conform, they are subject to revision in a manner similar to the conclusions of physical scientists. Truth is in the judgment, but not the whole truth, unless the judge is omniscient. Inventiveness and resourcefulness in utilizing findings of fact can enrich the creativity of judgment, but excesses of imaginative construction must be brought into agreement with the actual conditions of human existence.

As truth is the ultimate criterion of the way things are, and therefore is interchangeable with being as known by the intellect, so the good is the criterion of choice at the level of the will, and therefore is inter-changeable with being as the ultimate goal of motivation and desire. Again, as truth is interchangeable with being in one aspect and as good is interchangeable with being in another, so both the true and the good are interchangeable with each other (see transcendentals). Yet human comprehension of truth is prior to knowledge of the good, since one cannot choose what he does not know. To act in accordance with conscience, then, means to make a decision consistent with the degree of knowledge of being one has attained; this, in fact, is indicated in the etymology of the term, con (or cum ) and scientia.

Nature and Person. The point of view from which a human being observes reality is necessarily personal. By definition, adopted from boethius, a person is an individual substance of a rational nature. Without investigating the quantitative implications of individuality or the metaphysical significance of substance, attention may be focused on nature and the qualification of rationality. The term nature incorporates persons into the totality of existence, since nature refers to the essence of things that exist in the universe. The most important element in the notion of person, therefore, is being; nothing that lacks existence, no matter what its potentialities, can be a person. Beyond this, a person is distinguishable from other things by his ability to reason. Personality acquires a unique dignity or value because of its essential rationality. It is this quality of reasonableness, limited though it may be, in each individual substance, that is primary. To it all evidence, argument, and proof are directed; from it every conclusion, determination, and judgment is derived. Indeed, it is on the distinction of the rationality of persons that the similarities and differences between universal law and its human formulations are based.

The universal law unceasingly challenges man to new discoveries of its essence and manifestations. However, his capacity to reapportion the latter is admittedly conditional, and functions usually through communication with other persons. It is obvious that the movement of fish in the sea continues independently of man's word, whereas the course of action of employers and employees alike may be changed by the announced decision of an economist, perhaps, or a human lawgiver. The difference between the two cases has not always been clearly stated, and an exaggerated mechanicism in human affairs has led to confusion in the history of jurisprudence.

Scriptural Basis. Just as the notion of authority in Sacred Scripture has been cited repeatedly in connection with government and liberty, so the original words used in the inspired text have been referred to again and again, even in recent times. In English translation, the natural law is "written in the heart" (Rom 2.15). This, of course, is a figure of speech that conveys an ineffable truth in everyday language and is not expected to be taken literally. Yet it presents a difficult problem of interpretation. The words used actually challenge the reasoning human mind to discover the nature, or essence, of man and to act according to that nature. This challenge has often been acknowledged, but not successfully met. It is obvious that knowledge and judgment are involved, but intelligence alone is insufficient; in fact, the heart suggests motivation, and choice as well. The entire essence of man, and the impact of the rest of existence upon his struggle for survival and identity, are implied. Small wonder that the explanations so far suggested in philosophy reflect little more than the characteristics of the different schools that have offered them.

Inadequate Theories. Among the inadequate theories sometimes presented, determinism has had much to say about law and the natural order. It can be found throughout the history of ideas in one form or another. In modern times it has become familiar through the triad, or troika, of G. W. F. hegel, who presented the dialectic of thesis, antithesis, and synthesis as if it were an inevitable sequence of events. In the governments in which Hegel's theory has been dominant, it has resulted in a revolting loss of freedom. Moreover, the exalted conceptualism that characterized Hegel's speculations cannot claim general acceptance, for in it man's ability to choose is left out of account.

Mechanicism and Positivism. Mechanicists also, impressed by the repetitiveness of the physical order, have adhered generally to a determinism, but appeared less assured as mid-20th-century explorations into the atom disclosed unexpected discontinuities in nature. Their confidence in mechanical rigidity was replaced by uncertainty to such an extent that many suspended judgment while awaiting further findings.

positivism had a particularly strong influence in legal theory after the mid-19th century, but, like determinism began reviewing its dogmas. When judgments are confined to narrow interpretations of written legal documents, public or private, too many of the verifiable facts of life are left out of account, with results that are more abstract than realistic. Furthermore, identification of the rule of law with its hopefully automatic enforcement has placed an exaggerated emphasis on punishment rather than on correction. Positivists, who consistently accorded priority to power at the expense of justice in the legal order, were sufficiently shocked by unsatisfactory results of their theory to turn again to science for greater precision. But with physics and chemistry becoming less predictable, they shifted attention from atoms to cells and looked toward the life sciences, so-called, for help. Sociology proved disappointing its tendency to subordinate individuals to the pressures of mass society had been offset by concern for the protection of human rights under law. Psychology was more favored, but exaggerated emphasis on the "can't helps" of human existence and on comparable irrationalities seemed to be calling forth deeper quests. Until positivists abandon the imperialistic notion that law is to be identified with command, and with the power to enforce command, resistance was anticipated from those uncommitted to their sphere of influence, national or international.

Unwarranted Assumptions. Another unsatisfactory emphasis in philosophy, found even in the basically sound realistic school, has proved disadvantageous for the development of law. This is the tendency to proceed on the basis of unwarranted assumptions. Deductions from a priori premises that cannot be verified must, no matter how insistently repeated, be excluded in the interests of truth. The ultimate criterion of the true and the good is what the Creator has actually created, not what any limited human mind presumes to be true or accepts on hearsay evidence. It is necessary to know what has been previously thought in order to avoid repeating errors and to conserve facets of truth. However, since no human being is omniscient or able to verify everything by personal experiment, man must develop critical powers to avoid the acceptance of half-truths. Law depends for its advancement on a humble conscience, but not on an uncritical one. Yet the temper of criticism should be prudent, judicious, kind, and constructive, since love, as St. Paul teaches, is the fulfillment of the law (Rom 13.10).

Justice and Law. A striking feature of postmodern thought is the somewhat general omission of justice from theories about the legal order. Law is mentioned in connection with commands, sanctions (i.e., penalties added to a breach), demands, rights, expectations, duties, freedomsespecially freedom of expression (even when this amounts to engaging in the business of spreading mental, as opposed to physical, poison for profit) conformed or regimented behavior, and even coexistence. The notion of justice seemed to have disappeared. In fact, H. Kelsen, a writer on jurisprudence, published his collected essays under the title What is Justice? (Berkeley 1957), thus recalling Pontius Pilate's comparable question to Christ, "What is Truth?" (Jn 18.38). Clearly, the notion of justice needed to be reasserted in legal theory.

Lex, or legislative enactment, was distinguished in Roman law from ius, or right, and ius, in turn, was distinguished from iustitia, the rendering to each his own. European languages have preserved the distinction by retaining two words for law, but the English language has obscured the difference by using one word to convey both meanings. A consciousness that the difference is significant appears in modern legal literature, however, where some attention is devoted to the "is" and the "ought" of law. Among influential positivists only the "is" mattered, as already existent; the "ought" was left to those who speculated on the nonexistent or the imagined. Hegelians and evolutionists, concerned as much with "becoming" as with "being," were somewhat more receptive to the notion of what the law "ought" to be, although, if they were also determinists, their interest in the "ought" would appear inconsistent. It was a new concern for realism in American law in the 1920s that began again to inquire whether the law that "is" corresponds adequately with the facts of life and to inquire further whether, insofar as it does not, changes should be considered. The neorealists [e.g., K. N. Llewellyn, Jurisprudence (Chicago 1962)] opened the way for a reconsideration of the relation of law to right, without quite reviving the notion of justice.

Writers in Europe [e.g., G. del Vecchio, Justice (New York 1953)], influenced perhaps by Immanuel Kant, questioned anew the meaning of justice. Following Kant's classification of law under the practical reason, praxis, or the will aspect of human activity, which takes from the intellectual judgment its natural priorityT. E. Davitt, The Nature of Law (St. Louis 1951) contrasted Ockham and Suárez with Aquinas and Bellarmine on the distinction herethese 20th-century writers stressed the categorical imperative. They reemphasized the golden rule of actiondo unto others as you would be done untoand suggested that the most important word here is "others." They then drew the inference that justice pertains exclusively to others, thereby giving law a modern sociological connotation. The result was quite different from the traditional notion of justice, which is the notion of rendering to each person what is his own.

It is to the merit of the older definition, however, that it takes account of the necessities of human existence. It sees the proper function of law as an instrument of justice, which undertakes to assure to each living person whatever he actually needs in order to attain the fullness of existence of which he is capable. The right, or ius, or what the law "ought" to express, is, in the traditional view, not the post-Kantian wish or expectation concerning what others should do to one, but rather whatever human existence actually requiresone's own, or anyone else'sand this whether one is conscious of that need or not. Such a notion of justice is much closer to the universal order that confronts the intellect than is any theory that separates intellect from will and identifies law with the will. voluntarism, in minimizing the importance of both judgment and justice for law, is unable to reconcile satisfactorily the double aspect under which law functions, viz, as science and as art. Indeed, it fails even to account adequately for the scriptural definition of natural law as that which is "written in the heart."

End of Law. Just as the relation of law to authority raises questions about the origins and sources of both law and lawgiver, the relation of law to justice calls for a consideration of the purpose, or end, of law. Unless the latter be explained in terms of existence, or being, the entire law-giving activity proceeds on unsound premises. This is why natural philosophy, metaphysics, epistemology, and natural theology are as important for an adequate philosophy of law as are ethics or theories of the state. Yet these latter have claimed what amounts to a monopoly in speculations about law.

The fact that ethics and law are both concerned with conduct, and refer to the natural law in formulating directions, led to much confusion in jurisprudence. Theories of the relationship extend from those who hold that law should implement ethical decisions by force to those who hold that law is entirely unrelated to ethics. Although the ultimate goal for both is the good, their functions are quite different. Ethics directs toward the best possible conduct of which each human being is capable, whereas law is satisfied with the minimum that is acceptable to a majority in a community. This is not to say that law is public and ethics private, since law relies on conscience in private decisions as fully as ethics does in public affairs. The tasks are parallel and may at times coincide, but they are not identical. Confusion usually comes from identifying law with force, while ignoring law's reliance on judgment and persuasion in arriving at decisions.

Among the features of law that perhaps can most easily be left to legal experts are the procedures and techniques through which the law is made applicable to particular situations. Practically the entire course of studies in university law schools is devoted to these details. Moreover, legal terminology, unlike that of the physical sciences and the arts, is not generally understood by those in other intellectual pursuits. It is generally true also that the significance of law for life, which is seldom mentioned in the law schools, receives little attention in other departments of the modern university.

Historical Sources. The cultural void notable in juridical studies by the mid-20th century was not always characteristic of university teaching. Not only do the great summae of learning provide chapters on law, but there is evidence also of interchanges of expert opinion throughout Western Europe. Nor were the teachers unique in making important contributions to juridical thought. Heads of government have left monumental contributions as well.

The work of three 13th-century rulers in particular can provide the foundation for a much-needed comparative study of law. All three were kings, and they were closely associated in blood or friendship. St. louis ix of france was so concerned for lawyers that he built the beautiful Sainte-Chapelle near the law courts of Paris for their religious devotions. Alfonso X, King of Castile, patronized the collection of laws known as Siete Partidas, whose influence is still found in the southwestern United States. And Edward I of England has come to be called the English Justinian, because the common law reached such heights before his reign was over that the great modern jurist Maitland could speak of that era as "the golden days of the common law" [F. Pollock and F. W. Maitland, The History of English Law before the Time of Edward I (Cambridge, England 1895) 1:112].

This was the same century that saw not only the drafting of Magna Carta by the archbishop of Canterbury, stephen langton; but also the Summa of the English Franciscan alexander of hales at the University of Paris, with its section De legibus; the incomparable treatise of the cleric-judge Henry de bracton, De legibus et consuetudinibus Angliae; and the Summa theologiae of St. thomas aquinas at Paris, with its special chapter, De legibus.

Preceding this flowering were centuries of legal experience paralleling the growth of Christian thought. In the patristic era all the important writers, from tertullian to boethius and isidore of seville, many of whom were jurists, made significant contributions. Undoubtedly the sic et non dialectic of abelard influenced the development of adversary procedure; similarly, the harmonization of conflicting canons by Gratian showed the way for systematic treatises (see gratian, decretum of). The Saxon contribution spread from the Christian renaissance in the time of bernward of hildesheim, through the laws of alfred the great of England, to the Sachsenspiegel, which served as prototype for various collections of laws known by such titles as speculum and spicilegium (mirror of the justices). The impetus given to revived Roman-law studies at Bologna and Padua by matilda of tuscany is perhaps better known. In the Scandinavian countries, the beginnings of maritime law at the island of Wisby is attested by the ruins of the churches that served to guarantee good faith. The laws of Oléron, no less than the Visigothic Code, were shaped in the Spanish peninsula. Irish monks brought the knowledge of the Brehon laws to the Continent. The Norman development was particularly noteworthy, the archbishops of Canterbury from St. anselm of canterbury to Thomas becket, at least, and Anglo-Norman jurists such as vacarius having found a convenient crossroads for the exchange of ideas at the Abbey of Bec in Normandy. Materials are thus plentiful for a new synthesis of the relations of law to life as these unfolded in the ages of faith.

From this jurisprudential heritage, Thomas more, F. de vitoria, F. Suárez, Sir Edward Coke, F. bacon, H. grotius, and J. Selden were able to draw when solving problems posed by the exploration of the American continent. In recent times, modern jurists such as R. von Ihering, E. Ehrlich, and G. Radbruch, in Germany; F. Gény, M. Hauriou, and G. Rénard, in France; and F. W. Maitland, in England, raise questions of grave philosophical import, but a hollow echo is heard in reply. The popes alone, from Leo XIII to John XXIII and Paul VI, have pointed out directions for an acceptable meeting-place for law and life. Justice, human dignity, subordination of force continually reappear in encyclical letters, but the universities for the most part pay little heed.

Present Need. Perhaps the greatest need is a corrective for the popular identification of law with prohibitions. Law is not essentially negative. The revealed Mosaic Code itself begins positively, and only afterward becomes negative by way of clarification. Instead of the view of law as obstructionist, the truly creative tasks that require great originality of mind must be emphasized. Law functions as a science, in arriving at its judgments, but it functions also as an art, in giving expression to choice and in decision-making. To the extent that a person glimpses an aspect of truth, or selects an aspect of good, as an authoritative guide to human conduct and formulates the result cogently, he participates in the creativity of the universal order. Through his work the truth as being becomes more intelligible, and the good as being is seen to be more desirable. And when a person to whom the law is directed accepts the application in good conscience, adopting the true and the good as his own, he also participates in the creativity of the universal order by way of responsibility or self-government. In fact, exclusion from participation, itself the deprivation of a good, is really a punishment. Law's constructive function in relation to human conduct is thus what earns for law its place of honor in the learned world, a place acknowledged in the medieval universities to be second to philosophy and theology alone.

See Also: law; natural law.

Bibliography: Sources. thomas aquinas, Summa theologiae 1a2ae, 9097. h. de bracton, De legibus et consuetudinibus Angliae, ed. and Eng. tr. t. twiss, 6 v. (Rerum Britannicarum medii aevi scriptores, 244 v. (London 185896; repr. New York 1964) 187883). h. g. richardson, Bracton: The Problem of His Text (London 1965). Encyclical letters on the reconstruction of the social order. leo xiii, Rerum novarum (1891). pius xi, Quadragesimo anno (1931). pius xii, Summi pontificatus (1939). john xxiii, Mater et magistra (1961); Pacem in terris (1963). Pastoral Letter of the archbishops and bishops of the United States, signed by Cardinal James Gibbons, Sept. 26, 1919 (NCWC; Washington, DC 1920), drafted by e. a. pace, on the reconstruction of the social order after World War I. Studies. t. f. t. plucknett, A Concise History of the Common Law (5th ed. Boston 1956). c. h. mcilwain, The Growth of Political Thought in the West (New York 1932; repr.1955). r. o'sullivan, Christian Philosophy in the Common Law (Westminster, Maryland 1942). m. t. rooney, Lawlessness, Law, and Sanction (Washington 1937). j. c. h. wu, Fountain of Justice (New York 1955); Cases and Materials on Jurisprudence (St. Paul 1958), useful bibliography. e. bodenheimer, Jurisprudence: The Philosophy and Method of the Law (Cambridge, Massachusetts 1962), objective account of modern views. Periodicals. Index to Legal Periodicals (New York 1908). Index to Foreign Legal Periodicals (London 1960). Catholic Lawyer (New York 1955). Natural Law Forum (Notre Dame, Indiana 1956). World Justice (Louvain 1959).

[m. t. rooney]

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