The Great Conversation: Law
By Matt McKeown
Man is a political animal. ... Right?
Some of the great ideas come up more often around elections, and law is one of them. In this context, law in the, well, legal sense has to be distinguished from law in the scientific sense. There is no written authority commanding a cup of milk to fall on the rug when our toddler drops it, and the cup of milk will not be punished if it does otherwise—because, of course, the laws of motion are an essentially different kind of thing from the laws of torts (toddler-related or not).
Aquinas defined a law as “an ordinance of reason for the common good, made by one who has the care of the community, and promulgated.” That is, laws must be: rational, not arbitrary; made to promote the community’s well-being, rather than to benefit some private interest; made by someone with the authority to do so; and communicated to the people it applies to. Aquinas recognized several types of law, defined partly by who makes them and what community they apply to. For example, the laws of England might be just, but this would not give England the right or ability to make laws for France. Or, in a different sphere, the laws of a country might be just, but the Catholic Church in governing its own affairs has recourse to its own canon law.
Two of the most important categories here are natural law and human law. We generally think of “the laws of nature” when we hear the phrase “natural law,” but the Medievals meant something quite different. For one thing, it was concerned with how people should behave, not how they do behave. For another, natural law was something created by God, independently of human consent or legislation; its promulgation was in our conscience, and therefore it was universal, at least at the level of its basic precepts. Human law itself, rightly conceived, was for them simply the concrete application of natural law in specific times and places. Indeed, a human law that twisted or contradicted natural law, in their view, was not really a law at all—only a threat with the trappings of the law.
This points to the problem of enforcement, which is trickier than it looks at first. Obviously there is not much good having laws if you cannot enforce them. But the famous line from Juvenal’s Satires immediately comes to mind: “Who guards the guards?” Three centuries after him, St. Augustine roundly condemns earthly societies in general as being hardly more than successful crime syndicates. More strikingly, the Desert Fathers can be found saying here and there, with the casualness of a commonplace, that no Christian would even consider handing a criminal over to the imperial police, as if their corruption were so total it could be perversely counted on.
The Medievals were far more positive about the possible goodness of states and governments, but they still insisted that, while compulsion might enforce laws, justice itself was the source of law. Here they drew on a tradition that was already ancient in the thirteenth century, not only Judæo-Christian but pagan as well. In Sophocles’ Antigone (written in 441 BC), the title character says that she has defied an unjust law instituted by the king of her city in order to honor the command of the gods, which are a higher and perpetual authority. In a different idiom, Aristotle states that the laws of a city are partly man-made, but also partly derived from universal standards of right and wrong. Many Western ethicists and jurists since then have picked up the same thread.
All this relativizes human law: i.e., subordinates it to something else that has the power to invalidate it. The movements to abolish slavery and secure civil rights for persons of color are noteworthy here, in that they have frequently called society to a higher standard than the law requires (on paper, in practice, or both). Rev. Martin Luther King Jr. famously quoted St. Augustine’s maxim on law and justice in his Letter From Birmingham City Jail. King was also drawing on Mahatma Gandhi’s tactics in advocating for Indian independence from the British Empire. Civil disobedience, as formulated by Gandhi, meant both deliberately defying unjust laws and peacefully accepting the consequences of doing so.
This relativized idea of law is mainstream in our history, yet there are exceptions to it. Though he never says so definitively, Plato floats the idea that nothing can justify disobeying the laws of the state in both the Euthyphro and the Crito. Centuries later, when Enlightenment philosophers were arguing for social contract theories of government against the theory of the divine right of kings, Thomas Hobbes advanced a surprising twist on social contract theory. He argued in Leviathan that the powers individuals gave over to the state by entering the social contract were absolute. On his view, not only did citizens have no right ever to disobey the government, governments had a right to do anything they chose to citizens, thus extracting an old-fashioned “divine right” style of conclusion from then-new Liberal premises.
Of course, the very idea of the “state of nature” described by social contract theorists would have seemed both silly and, in the pertinent sense, unnatural to Aquinas or Aristotle. The latter defined man as a political animal—today we would probably phrase it “a social animal”—and the former firmly agreed. The notion that every individual (or even every family) is somehow against all others flies in the face of what they thought it even meant to be human.
Charles Montesquieu, The Spirit of Laws
Emma Goldman, Anarchism and Other Essays
Louis Brandeis, Olmstead v. United States: Dissenting Opinion (secs. 55-83)
Code of Canon Law of the Catholic Church