LESSON 1: NATURAL LAW AND POSITIVE LAW
There are, among the Great Unwashed – that’s everybody except me, by the way – some pretty serious misconceptions about law. Some people, including some philosophers, think there’s something called natural law, by which they mean rules that govern how we should behave – and would govern how we should behave – even in the absence of any kind of civil authority to promulgate those rules and to enforce them. Thus, for example, if it’s wrong that “a man should lie with a man as with a women”, then it was already wrong, even before the law of the land thought to outlaw it, as it did in Canada until 1982; and it remains wrong, even after the law of the land now permits it, as it does in Canada since 1982.
Let’s put the ontological status of these rules aside for a moment. The plausibility of this view hangs on how we might come to know what these rules are. Presumably we don’t want to let someone just pull them out of his ass, because there’s not a whole lot that can’t be pulled out of one’s ass, including that it’s wrong that “a man should lie with a man as with a women.” So to avoid this reaching in and just pulling out whatever one wants, some people think a law is only a law if it’s pulled out of God’s ass.
But these Divine Command Theorists, as they’re called, don’t like that characterization of their position, and so they modify it a bit. God wouldn’t be just pulling it out of His ass if instead He had some kind of privileged epistemic access to these rules. So their claim is rather that there are things God knows that we don’t. Or at least that He knows them more reliably than we do.
But in that case we can’t put the ontological status of these rules aside. We need to know what kinds of things are such that some observer, say God, can see them but the rest of us can’t. So most natural law theorists – Thomas Aquinas, John Locke, and so on – hold that the rest of us can see them, if only we take the trouble to look.
What would we be looking for? Well, remember that whatever they are they have to be such that having seen these rules we’d consider ourselves subject to them. That is, they have to be such that they’re normatively incumbent upon us. Well then, how ‘bout they’re the rules which, experience tells us, best serve our survival, delectation, and civility? That would make them empirically discoverable by pretty much any of us. And so we wouldn’t need God to tell us not to “lie with a man as with a woman.” We’d have figured that out ourselves.
Or, perhaps, we’d have figured out that that would be a stupid rule. That is, since these rules are empirically discoverable, and hence not self-evident, it shouldn’t surprise us that – contrary to Aquinas and Locke and thinkers of their ilk – reasonable people can and do disagree about what they might be. Not only that, but the rules might change over time. Or they might differ from place to place. Where there’s no refrigeration – as was the case three millennia ago – pork and seafood don’t keep. Now we do have refrigeration. In the absence of birth control premarital sex wasn’t such a great idea. Today saving yourself for marriage is just an invitation to disappointment. And so on.
Nevertheless, in a given place at a given time, there are better and worse decisions about what rules we should be imposing on each other, and these can be convincingly argued for. There is no case to be made that a man ought not to “lie with a man as with a woman.” There is no case to be made – at least here in the West in the early part of the 21st Century – that a woman ought not to be free to end a pregnancy or carry it to term. For the issue, recall, is not what may or may not be “an abomination in the eyes” of some real or imagined god, or what may or may not be the metaphysical status of the fetus. Rather it is, as already noted, what best serves our survival, delectation, and civility. I suspect that at this point in our history – and thankfully so do most of our parliamentarians – recriminalizing homosexuality and abortion would just provoke civil war. And as Thomas Hobbes observed, civil war is not exactly conducive to survival, delectation, and civility.
But the stupidity of recriminalizing homosexuality and abortion is a contingent matter. That is, we can easily imagine times and places – because there have been times and places – where heterosexism, pro-natalism, even slavery, made perfect sense to us. I suppose, as did Locke, the only rule that would be nigh-universally insisted upon would be respect for private property, without which civil society would be impossible. But everything else, including how property is to be assigned in the first place, is pretty much up for grabs.
Here again, is there a fact-of-the-matter about how the dividends of civil society are best divvied up between us? Yes in the sense that there’s a mind-independent fact-of-the-matter. But no in the sense that any of us – least of all any of these self-styled economic experts – has apodictic access to that fact. And it’s because there’s no universally shared view on how best to divvy up the goodies of civil society – and yet these goodies must nonetheless be divvied up – that we have (what we call) positive law.
Most positive laws are enacted with an eye to what our rulers take to be the best-making features of this divvying up. But some positive laws, like whether we drive on the right or the left, are simply solutions to pure coordination problems, and so can be entirely arbitrary. They’re what we might call merely regulatory laws. So, why do we need positive (i.e. posited) laws? Because without solutions to these coordination problems there could be no cooperative enterprise at all, and hence no cooperative dividends to divvy up.
It’s true that some people would prefer we do things this way rather than that, and others that we do them that way rather than this. So Hobbes acknowledged that, relative to any alternative positive law, every positive law produces winners and losers. But, he pointed out, relative to any alternative to positive law, every positive law produces nothing but winners.
So insofar as a) there’s nothing ‘natural’ about natural laws, that b) they’re nothing more nor less than what experience tells us are good rules of thumb by which to arrange our interpersonal affairs, and that c) any positive law, if it stands a hope of being respected, will likewise have to be sensitive to these rules of thumb, there’s really nothing left for natural law to be. Which is not to say that all rules are posited. It’s to say only that some of the rules by which we get along with one another have to be. And those that don’t, like queuing up for coffee, take care of themselves.
LESSON 2: THE SOVEREIGN AND THE HIGHWAYMAN
In the 19th Century, John Austin proposed (what came to be called) the command theory of law. And this resurrected a worry that had been around for centuries. Baruch Spinoza was exercised about it back in the 17th Century.
The difficulty with thinking of law as “the commands of the sovereign” is that there doesn’t seem to be a way to distinguish the commands of the sovereign from the demands of the highwayman. This is because sovereigns typically come by their power over us, and maintain that power, pretty much the same way highwaymen do, namely at the point of a gun, or by what Hobbes called acquisition (a.k.a. conquest) rather than by institution (a.k.a. election.)
More recently, in The Concept of Law (1961), H.L.A. Hart set himself to task providing that distinction. According to Hart, a command/demand is a law if and only if a) it’s embedded in a legal system, and b) those subject to it give it uptake, by which is meant they consider themselves subject to it. This doesn’t mean they need consider the law in any wise legitimate. Nor need they consider themselves morally obligated to obey it. It requires only that if they’ve defied the law they acknowledge that it was the law that they defied. So, for example, were it not that the smell of marijuana makes me nauseous I probably would smoke the stuff, because I consider its prohibition an illegitimate law. But I speed, notwithstanding I regard speed limits as perfectly legitimate. Neither the French during the War nor the Palestinians today consider the Nazi and Israeli occupations legitimate But that has nothing to do with whether resistance is or is not legal, except to say it might be illegal under Nazi and Israeli law, and yet perfectly legal under the laws of war.
And this raises the central question of the relationship between law and morality. Can we be simultaneously subject to two conflicting normative regimens? Apparently not, at least according to Jesus. “Render unto Caesar that which is Caesar’s, render unto God that which is God’s.” Or, less theologically, “that which is dictated by your conscience.”
Some philosophers of law – Justice Devlin, for example – hold that if the law requires us to do something egregiously immoral, it can’t be a law, and therefore one needn’t obey it. Others, including Hart, insist that it’s a law all right, but some laws ought not to be obeyed. What’s at issue between them, it seems, is whether one minds being a criminal. Devlin does, Hart doesn’t. Which is a tad ironic – is it not? – since it’s Hart, not Devlin, who thinks it’s being a law requires my giving it uptake.
In any event, what distinguishes the commands of the sovereign from the demands of the highwayman is that in the case of the former, but not the latter, we give it uptake. This does some work, but not enough. We still need to know at what point might the demands of a highwayman become the commands of a sovereign, and vice versa. That is, is the IDF in the West Bank and Gaza and the Golan an occupier or merely a highwayman? If the former then Netanyahu is right to call Hamas criminal terrorists. (Though, as we’ve just seen, on Hart’s account that can be a badge of honour.) But if the latter – if the IDF are just thugs – then the ‘occupation’ can rightly be treated as one would a home invasion. As with the Stand-Your-Ground laws in many parts of the U.S., feel free to just shoot the fuckers!
And those collaborating with these thugs are likewise fair game. So insofar as international law – assuming such a thing exists – is largely derived from Just War Theory, and insofar as 9/11 would seem to have satisfied the just cause condition, it was a perfectly legitimate military operation.
Or at least it would have been were it not for the non-combatant immunity condition. That is, international law has no problem with the Palestinian resistance targeting Israeli and American soldiers. But to deliberately target civilians is a war crime, right?
Well, maybe not. During the Indian Wars in the American West, their soldiers burned out ‘our’ settlers, and ‘our’ soldiers burned out their villages. Were these war crimes? Well yes, as long as you grant that not all crimes are created equal. That is, it’s hard to imagine how the West could have been won without such ethnic cleansing. In fact conquest invariably requires the targeting of non-combatants. How else can they be induced to “Move along now!”? And so if the targeting of non-combatants is a war crime, conquest is a war crime. But since, Antarctica aside, there isn’t a square inch on the planet that hasn’t been, at one time or another, conquered, the history of civilization is just one extended war crime. But if everything is a war crime then nothing is.
For most of human history the conquest of one people by another fell outside the range of any moral assessment. Today, for some reason I’ve never understood, conquerors have to tell themselves they have justice on their side. And so when the not-yet-entirely-vanquished hit back – as they’ve done in Palestine and Afghanistan and Iraq – they’re dubbed criminals and terrorists. This is hypocrisy to be sure, not to mention a tad unseemly. But what necessitates it, if not this puerile need to think oneself just and therefore so terribly hard-done-by?
There is no entitlement to the other guy’s land. But then neither is there entitlement to our own. As Hobbes put it, it’s ours “onely for so long as [we] can keep it.” Any other notion of ours-ness is the invention of children!
Of course it must be pointed out that though respect for the law – especially as it pertains to what belongs to whom – is not incumbent on those who decline to give it uptake, the law, to count as such, must treat those who don’t give it uptake the same as it does those who do. That is, one can say to the judge that “I don’t recognize the jurisdiction of this court.” And that might well be true. But if any judge took that as grounds to remove the matter from his court and refer it to the laws governing prisoners of war, then every accused could rightfully demand to be treated as a prisoner of war rather than as a criminal. Then, the next morning, he could simply concede defeat, and so an end to hostilities, and so invoke his right to go home. So we need a way to distinguish between a captured soldier and a convicted criminal. And that can’t depend on how the captive self-identifies.
This isn’t just an issue in jurisprudence; it’s the issue. And it came to a head with Bobby Sands during the Troubles in Northern Ireland. To this day the issue has never been resolved. But how can it be? Jurisdiction isn’t something about which there’s a mind-independent fact-of-the-matter. Rather it’s something that’s simply declared. But then the highwayman can declare himself authorized as readily as can the judge. So, it would seem, a law is a law just in case both a) the jural agent in question declares himself competent to enforce the rule in question, and b) the subject in question gives uptake to that declaration. Otherwise, no matter how much one’s robes might attest to his holding an office in a legal system, for all intents and purposes he remains nonetheless a highwayman.
It could be argued – indeed it has been argued – that what makes the highwayman a highwayman is that there’s someone, namely the sovereign, who can be appealed to to forcibly override the highwayman’s demands, whereas one cannot appeal to the highwayman to override the commands of the sovereign. But that merely begs the question. Of two pretenders, which is the sovereign and which is the highwayman? Both might declare themselves the former. Prince John declared Robin Hood a simple outlaw. Robin Hood proclaimed himself a servant of the absent king. But to ask who’s right and who’s wrong is just to misunderstand the problem.
It should come as no surprise, therefore, that some ‘critical legal theorists’ regard law as a blind for power. We talk the talk with bromides like “the rule of law”, “equality under the law”, and so on. But beneath this rhetoric lies something far less laudatory, namely brute raw power.
But even if this is so, what lies beneath this power? What underpins it? Force of arms, certainly. But also what Hart called “the internal point of view”, or what I’ve been calling uptake. If this be doubted, ask yourself what would happen if one day we all just decided not to recognize those pieces of coloured paper as tradable for our goods and services, or those badges on those chests, or the titles by which one claims his authority? We give uptake because it serves our purposes to do so. And only for as long as it does.
Well no, not always. Sometimes – perhaps far too often – we’ve become so habituated to our having given uptake that it doesn’t occur to us that we can withdraw it. This is how sovereigns become highwaymen. It’s done in increments. Not unlike frogs, who have mechanisms for detecting rapid changes in temperature but none for detecting temperature itself, we allow ourselves to be boiled.
This is what happened to the Jews in Germany between 1933 and 1939. The sovereign morphed into a highwayman. This regularly happens with liberators turned tyrant – Mugabe in Zimbabwe, Gaddafi in Libya, Saddam in Iraq. But the creation of a dystopia is not always as Mephistophelian as that. As often as not we boil ourselves. Hence the oft-cited distinction between George Orwell’s 1984 and Aldous Huxley’s Brave New World.
So the bottom line, it seems, is that for all our efforts – Spinoza’s, Hobbes’, Hart’s – there is no distinction between the sovereign and the highwayman save that our thinking makes it so. If all things considered you like the rules you’re being expected to follow, then follow them. If all things considered you don’t – but make sure all things have been considered – then feel free to just shoot the fuckers!