West on natural law ambiguity
One of the key moves Robin makes in the ‘Revitalizing Natural Law’ chapter is to make a distinction between what Robin calls ‘jurisprudential’ natural law theories and ‘ethical’ natural law theories, where jurisprudential natural law theories attempt to give an account of the constitutive conditions of law that in some way includes value conditions and ethical natural law theories attempt to provide criteria for the assessment of legal institutions, norms, and activities based on what serves the natural good of human beings. Robin is right that such natural law views are often confounded, not least because they are often defended by the same persons, persons who self-define as ‘natural law theorists.’ And it is important to Robin’s project that she distinguish these types of natural law theory, for she wishes to shed jurisprudential natural law theory while embracing and enriching ethical natural law theory.
Now, I am of course entirely on board with the distinction between these two sorts of natural law theory. And while I may disagree with some of Robin’s worries about the particular views defended by the ‘new natural law theorists,’ as a defender of ethical natural law theory, I am inclined far more to be delighted that someone outside of the traditional circle is taking such arguments seriously than to be worried that the outcomes of such debates will not favor what one might think of as standard natural law positions. So instead I want to focus on points where my agreements with Robin are less solid. In particular, I want to focus on her characterization of the jurisprudential natural law view and her criticism of it.
A jurisprudential natural law theory holds that among the conditions that explain why something is law are normative conditions. Robin focuses on a very specific formulation of this position, for which the “defining thesis” is that lex iniusta non est lex — an unjust law is not law. This is supposed to be a necessary truth about the nature of legality. For now I will take this specific formulation for granted. What does Robin have to say against the jurisprudential natural law view thus formulated?
Against this view she notes her agreement with the standard positivist criticism that it certainly seems on the face of it possible for laws to exist that are patently unjust. But less standardly, and very provocatively, she appeals to an interesting feature of the lex iniusta claim, its ambiguity. There are two ways for it to be impossible that unjust law be law. One is that injustice makes legality impossible: that the content of some putative legal norm is grossly unjust explains the inability of that putative legal norm to be a valid legal norm. The other is that legality makes injustice impossible: the status of a norm as a valid legal norm explains why the content of that norm is not grossly unjust. The former way of understanding the natural law dictum seems to make it a slogan for disobedients and revolutionaries; the latter way seems to make it a slogan for reactionaries and defenders of the status quo.
Robin recognizes that some may take this finding of ambiguity to be incredible, and she cites her colleague David Luban’s expression of disbelief that the jurisprudential natural law theory can be plausibly subject to criticism on that score. Surely, David writes, Robin knows what the jurisprudential natural law theorists have in mind here, and it is the revolutionary rather than the reactionary take on the natural law dictum. I confess that I was tempted simply to echo David’s expression of disbelief, and I was not much moved by Robin’s citing Bentham’s remarks on the subject — I don’t turn to Bentham for fair and insightful criticism of natural law theorizing — nor by the remarks of Blackstone’s on the subject that Robin tries to enlist in support of her reading. (Against Robin’s reading, John Austin rips Blackstone a new one just for being so obviously usable for the purposes of disobedience and dissent.) But on reflection I think Robin’s basic point is correct, that she is right about this ambiguity, and David wrong, and this just as a matter of the history of natural law theorizing.
The meaning of the jurisprudential natural law dictum is not given in a vacuum, or by how it happens to have been wielded in political debate. As John Finnis has correctly noted, the lex iniusta non est lex thesis is never more than a “subordinate theorem” in a theory of law’s nature. And the meaning of subordinate theorems within some theory is always largely due to the wider theory of which they form a part and of the higher-level premises of which they are implications. So in order to see whether the natural law dictum really exhibits something like the ambiguity that Robin describes, one would have to take a close look to see whether the history of natural law theorizing includes arguments that suggest both the revolutionary and the reactionary readings.
St. Thomas Aquinas’s view — assuming that it is to be understood by way of the strong interpretation that Robin offers of jurisprudential natural law theory — is indisputably of the revolutionary variety. Aquinas’s view is that there are norms of practical reasonableness that govern humans and the relations between them, including political relations. Some of these are indeed absolute (e.g. those forbidding lying, killing the innocent, blasphemy, etc.), so that one could never be justified in acting contrary to them. All human law must instance these norms of practical reasonableness, either as a deduction from them or as a specification of them. Would-be legal norms that fall outside of the natural law are corruptions of law, and when compliance with them require violation of the natural law, they are no laws at all, and can under no circumstances be properly treated as authoritative. There is in Aquinas no hint of natural law ambiguity, once the natural law dictum is interpreted in light of the theses of which it is an implication.
Do we have any clear examples of the jurisprudential natural law thesis properly understood in the other, reactionary way? We do. Take Thomas Hobbes. Hobbes uses the language of natural law ethics. He describes laws of nature, which are the “true moral philosophy,” which have their basis in the nature of human beings, and which show them the way to their natural good, both individually and in common with other humans. And Hobbes affirms the jurisprudential natural law dictum, in a variety of ways: he says that no law can be unjust, that the law of nature and the human law contain each other, and so forth. But his reasoning differs from Aquinas’s: he thinks that the laws of nature are, to use the expression Sharon Lloyd appropriates from Derek Parfit to describe Hobbes’s views, ‘self-effacing’: they direct one to empower a sovereign who is then the arbiter of just and unjust, whose word is sufficient to render an otherwise binding law of nature nonbinding. So we do have a pretty clear example of the phenomenon the possibility of which Robin is pointing out and about which David expresses skepticism.
So we have jurisprudential natural law ambiguity in the following sense: the natural law dictum lex iniusta non est lex has appeared in theories in which its context makes plain that the reactionary reading is correct, and it has appeared in theories in which its context makes plain that the revolutionary reading is correct. What I am still not sure about is whether we ever have in the history of natural law theorizing ambiguity that remains, given the context of a particular natural law theory.