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.

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4 Responses

  1. Re: “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.”

    While it is certainly true that Hobbes’s reasoning differs from Aquinas’s, the second sentence fails to do justice to either Hobbes or Lloyd’s masterful exposition of Hobbes’s moral and political thought, indeed, it is not accurate to state that the sovereign is the arbiter simpliciter of what is just and unjust. While it is true that the sovereign IS the final locus of authoritative judgment in a commonwealth, the reciprocity theorem* in Hobbes’s natural law account as discussed by Lloyd does not render the sovereign free to ignore natural law: “The Law of Nature requires sovereigns to advance, to the best of their abilities, the welfare of the people who have reposed trust in them. This theorem unequivocally requires that any sovereign pursue the good of its subject people.” Lloyd explains:

    “What constitutes that good? According to reciprocity, no sovereign may rightly—that is, justifiably, in accordance with right reason—rule in a way that he would fault, were he subject to the same sort of rule, as unreasonable given the ends he would have had in submitting himself to government. Understanding the contours of rightful rule thus requires reflection on the ends for which subjects wish to see government imposed on their fellows, and so (by reciprocity) the sovereign’s adoption of ruling policies that promote rather than frustrate those same ends.”

    As for the specific constraints Hobbes thinks his Law of Nature imposes on sovereigns (which could be a ‘sovereign’ assembly) in this regard, Hobbes writes:

    ‘The benefits of subjects, respecting this life only, may be distributed into four kinds. 1. That they be defended against foreign enemies. 2. That peace be preserved at home. 3. That they be enriched, as much as may consist with public security. 4. That they enjoy a harmless liberty.” [Lloyd proceeds to examine each of these in detail.]

    In short, and in the words of Lloyd, “Hobbes makes clear the Laws of Nature justify only a limited sphere of proper governmental operation.” And while sovereigns have no naturally given contractual obligations vis-à-vis their subjects, there is nothing the sovereign can say or do to render the aforementioned Law of Nature “unjust” or otiose (their duties, qua sovereigns, Lloyd reminds us, consist only of the natural kind), and the power of the sovereign is in the nature of a trust, which implies moral accountability for its exercise, in fact, the sovereign is answerable not only to the law of nature but divine law as well (the former being ultimately derived from the latter). It is intriguing to consider that while Hobbes does not appear to recognize a right to rebellion, he does express a belief in natural punishments as necessarily following violations of natural law such that, for example, the “negligent government of princes” is “punished with rebellion, and rebellion with slaughter” (cf. the notion in classical Chinese thought regarding the withdrawal of heavenly mandate to rule accorded the emperor: is this an ex ante judgment or post facto description?).

    All human beings, including sovereigns, are bound by a set of natural duties insofar as they possess normal powers of reason and “regardless of where they have consented to be bound by them or even acknowledged them.” Sovereigns don’t determine the contents of the Laws of Nature although they do have the right of “authoritative judgments,” which leaves open the possibility that they may err in their judgments, although that does not alter the necessity for deference to same (Lloyd uses the examples of umpires and Supreme Court justices).

    The “self-effacing” character of this natural law theory refers to the subject’s general obligation to obey the (authoritative) commands of the sovereign (which arises from the ‘sum’ of the Laws of Nature, namely, the reciprocity theorem). In other words, positive law itself depends upon this prior submission to political authority. And it remains the case that the sovereign’s “supremacy in judging” means that “she may legitimately settle disputes as to what the law—including natural law—is, how it is properly interpreted,” and so forth. As is well known, this makes for a species of political and legal absolutism. It also has interesting and lesser-known consequences: for instance, “the subject is not author of actions commanded by the sovereign in violation of natural law,” simply because they could not have been authorized by subjects (in the first instance, as it were, they could not have authorized the sovereign to violate the Laws of Nature).

    As the late Perez Zagorin wrote in Hobbes and the Law of Nature (2009), “we must ask if Hobbes left any role at all for the law of nature to serve as an independent standard for judging the sovereign’s laws and actions as ruler.”

    * “If one judges another’s doing of an action to be without right, and yet does that action oneself, one acts contrary to reason. That is, to do what one condemns in another is contrary to reason.” This theorem “articulates the primary constraint in Hobbes’s moral and civil philosophy on the justifiability in reason of actions.” This theorem is ultimately or axiomatically derived from the core of “divine positive law,” understood by Hobbes as the Golden Rule of Christianity, a succinct discussion of the meaning of which is found in Anna Wierzbicka’s What Did Jesus Mean? (2001). Lloyd well explains how Hobbes “insists upon mapping divine positive law onto natural law” through the reciprocity theorem, meaning that it is divine positive law that directs submission to civil law!

  2. The respective arguments of Lloyd and Zagorin (and Larry May as well for that matter) are complemented if not further backed up by Evan Fox-Decent. In his book, Sovereignty’s Promise: The State as Fiduciary (2011), Fox-Decent has argued that Hobbes’s distinction—based on the condition of security—between laws that bind in foro interno and those with a bind on action in foro externo, that “it must be the case that the laws of nature bind on conscience (in foro interno) even when there is no security, as is the case in the state of nature. This suggests that…at least some part of the normative authority of the laws of nature—their normative capacity to sustain legal obligations—can be specified independently of the institutional formalities and sovereign power that makes those laws obligatory in foro extorno. [If I’m not mistaken this is identical to or at least strongly resembles an argument made by Larry May as well.] The laws of nature, the source of which is our capacity to reason, cannot easily be reconciled with the positivist view that legal obligations arise solely from the sovereign’s will, as they are “explicable independent of his will.”

    Fox-Decent makes several other points germane to our discussion:

    (1) “Hobbes’s argument seems to presuppose…that the subject can judge if the sovereign complies with at least some of the laws of nature, i.e., the [fundamental] laws that govern the institution of legal order (e.g. equity, equal use of things in common, impartiality in adjudication, etc.).”
    (2) “While the sovereign retains final interpretive authority, the contribution of the law of nature to the argument for sovereignty would be undermined if, on entering civil society, the sovereign could interpret them in any way he pleased. After all, why would people be ‘drawn to agreement’ on them if, in practice, they are meaningless?”
    (3) “…[I]f the sovereign wishes to issue interpretations of the laws of nature that are not destructive of his authority and the subject’s obligation to obey, then he must do so in a way that does not flagrantly violate them, especially when their meaning is plain and determinate.”

    Fox-Decent cites a number of passages from Hobbes’s Leviathan in support of his argument, for instance, that violation of the laws of nature “can never be lawful. For it can never be that war shall preserve life and peace destroy it;” and “sovereigns are all subject to the laws of nature, because such laws be divine, and cannot by any man or commonwealth be abrogated.” In addition, Hobbes states “whatsoever is not against the law of nature may be made law in the name of them that have sovereign power,” implying “that if a sovereign were to issue a decree that violated the laws of nature, then in some sense the decree would fail to constitute law,” a scriptural argument reminding us that “subjects owe to sovereigns simple obedience in all things wherein their obedience is not repugnant to the laws of God.”

    We should also note that the laws of nature “provide the legal framework within which judges are to interpret and apply civil law. In setting out the ‘things that make a good judge (or a good interpreter of the law),’ Hobbes first points to ‘a right understanding of that principal law of nature called equity.’” [italics missing] “Similarly, if a judge has no positive law to go on, the laws of nature will fill in the gaps and provide the required legal principles, for in those circumstances the judge’s sentence ‘ought to be according to the reason of his sovereign (which being always understood to be equity, he is bound to it by the law of nature).’”

    More might be said, but this will have to suffice.

  3. Mark Murphy says:

    I’m grateful for this, which is more than I can respond to in detail. There is a good deal of Lloyd’s view of Hobbes that I do not endorse; I was not at all appealing to her substantive interpretation of Hobbes, but only to the well-chosenness of the ‘self-effacing’ phrasing.

    At no point in my brief remarks on Hobbes did I suggest that legal obligations arise solely from the sovereign’s will. Nor do I deny the point that for Hobbes the in foro interno obligation imposed by the laws of nature is immutable and eternal. I was making only a single point, and nothing about the way that the laws of nature bind in foro interno or are supposed to guide the sovereign’s lawmaking authority are particularly relevant to it. The point is that on Hobbes’s view an edict of the sovereign to perform some action that would otherwise be ruled out by the in foro externo binding power of the laws of nature changes the situation to one in which those laws do not bind in foro externo. And Hobbes’s view requires this: for his view does not permit of the possibility of there being a binding law of the sovereign that contradicts what the in foro externo obligating power of the laws of nature requires. That is why Hobbes’s view is a clear case of a natural law jurisprudential view that runs the other direction: that the sovereign requires something can render it right when it would otherwise be contrary to what the true moral philosophy requires.

    There are some limited cases where even the sovereign’s edict can’t make the laws of nature nonbinding upon one, for example, when the sovereign tells you to kill yourself. But these are, from Hobbes’s point of view, fringe cases, even if we may wonder whether they generate more difficulties for his position.

  4. Mark,

    I understood largely what you were trying to say but was more concerned about the inferences others would draw from your brief remarks about Hobbes (one of which I thought was inaccurate as it stood) especially insofar as they might confirm existing and popular interpretations of his moral and political philosophy (and while you and I have read Lloyd, it seems precious few others have as well).