The End of Law
Sed non vidi caelum novum neque terram novam. Wikimedia Commons
I think, therefore I legislate. We are born, we enact laws, and then we die. Laws are, for better or worse, the essence of humanity. Consider our modern use of the word ‘law’ to mean that which cannot be disputed. The law of gravity would not cease to function, even if it were disputed by a remarkably industrious physicist. Any declaration of independence or assertion of human rights takes the form of a code to assert its views of humankind in legal language. The law is a mysterious beast, and it deserves the respect owed to other mysteria fidei.
For What Purpose? To What End?
This respect may be observed by first drawing a parallel between the function of the law and the function of a car. A man who does not understand the mechanical movements powering his motor-vehicle will still trust in its capacity to take him from point A to point B. He will, however, worry about where the vehicle is taking him. It matters little to the passenger as to whether his car has a combustion engine or an electric motor; it matters dearly to him if it is headed to his destination or careening off a cliff.
As it is for a driver, so it is for a lawyer: the intricacies of metaphysical jurisprudential reasoning may not trouble the heart of a practitioner of law, but she should know why murder is illegal, lest she come to support it. Her school of ethics — whether it be ‘Catholic Thomism’, ‘Foucauldian nihilism’, or ‘Beauvoirian existentialism’ — may not necessarily invigorate us, but it would trouble various parts of the population if she were to approve of murder, assault, or littering. We may say that she is free to think as she so desires, but that her actions should reach a minimum moral standard. The resulting dilemma is one that we must also answer: Which standard is the right one?
(It is important to note that this question does not concern the law in a positivist sense — the question is normative, not descriptive, and both Hart and Dworkin must answer it if our practitioner is to maintain a clean conscience. Translated into both models, the question reads thus: Which laws deserve to be recognised by the Rule of Recognition? or, Which laws are morally good?)
An example may demonstrate the difficulty present in the question. Solicitors in Australia are bound by a ‘duty to the court and the administration of justice.’ [1] Justice is a term so essential to law that its definition may evade us until we give it some thought: it is the constant and perpetual desire to give every person what they are entitled to receive. [2] Entitlements, however, are normative claims. A human entitlement to life is universally recognised, except for when it is not. Should self-defence exonerate a murderer? What if the victim had no intention to cause harm? If we wish to recognise an entitlement to life, we must arrive at this entitlement in a reasonable manner.
An Alternative to Conscience?
A normative claim requires at least one universally binding ideal if it is to be reasonable while operating and making progress. The alternative would be to consider the law as the result of the mere whims of the sovereign, equating justice with base tyranny or popular opinion. This system can serve the needs of differing groups, but it cannot be brought to perfection, because it has no ideal of perfection in itself.
What is the perfect rule of a sovereign? Is it a perfect tyranny, where universal power is invested in one individual? This requires a continuous affirmation of tyranny by the tyrant; the absolute monarch is forbidden from doubting his absolute monarchy. And it would appear to be well beyond the capacity of man to possess such authority. Must he set the sales tax? Must he enforce local fishing edicts? Is he to consent on behalf of the bride and groom in a wedding? By delegating, he divests himself of his absolute power, shoring up his inadequacies through additional personnel. It would appear that a perfect tyranny cannot be upheld by a merely human leader.
And yet, what about the opposite? A perfect democracy, the will of the people — surely, these are fitting for our pluralist society. [3] Here, we can fall into one of two traps. If one maintains that human desires are entirely arbitrary and unjustifiable, justice becomes an impossible ideal — any conflicting desires are equally valid. Likewise, if one argues that popular assent elevates certain values to goodness, we fall back into the Euthyphro dilemma — an idea’s popularity does not necessarily render it morally or ethically sound. [4]
So, our legal practitioner cannot rely on dictators, delusion, or democracy to deliver her from the pangs of conscience. And yet, for the law to be brought closer to perfection, she must understand its purpose. If we are to improve the law; we must know what we are working towards.
Παρρησία και Ἰσηγορία
It is here that our goal is revealed in a new light: laws are a means to an end. The crankiest judges and the most inspired legislators alike admit that while laws can help us to live a good life, they are not an end in themselves. And so, our legal practitioner is faced with a terrifying reality. She cannot derive the ends of humanity from the laws; she must derive the laws from the ends of humanity. To know what the law should be, to understand how it should function, and to work conscientiously, she must know the purpose of humanity.
In our law, the most visible example of means and ends being separated is the difference between liberty and licence. This distinction dates back to ancient Greece, exemplified in the difference between parrhesia (παρρησία) and isegoria (ἰσηγορία). This was then translated into Latin; licentia took the role of parrhesia and libertas took the role of isegoria. Notably, the original Greek terms were strictly limited to speech, whereas the Latin terminology squished speech together with general freedom. [5]
This division remains to this day. Australia protects the implied constitutional right to political communication, despite condemning other forms of speech. Speech is a means to an end — in this case, responsible government and lawmaking. And so it goes in turn — to understand the end of those laws, we must first approach the purpose of humanity.
The End of the End of Law
Whether we like it or not, lawyers have both an intellect and a conscience. Alongside our intellectual duties to the law, we have a duty of conscience to do what is right: not just by our clients and the courts, but by humanity. This duty of conscience cannot be mere sentimentality or obeisance; it is a serious duty that we undertake both as humans and as legal professionals. Just as we study the consensus of our peers and predecessors, let us discern and reason our way through our own consciences. The conscience may be fickle, unyielding, or even silent; but do not be deterred. We have a job to do — let us see it through to the end.
[1] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) p 2 s 3.1
[2] Justinian, Institutiones 1. Latin: lustitia est constans et perpetua voluntas ius suum cuique tribuens.
[3] United Nations Declaration of Human Rights, Art 21.
[4] Australian Communist Party v The Commonwealth (1951) 83 CLR 1, 262
[5] Eleutheros (ἐλεύθερος) covers the idea of general freedom and is cognate with libertas, for the etymologically inclined.
This article was originally published under the title ‘The End of Law: Liberty and Licence Distinguished’ in The Brief Edition 3, 2024 — Ad Aeternitatem.