Undefining the Law
Roman frieze of a religious procession.
What is a law? This is an elementary question, yet legal philosophers are far from anything resembling a settled answer. Broadly speaking, the debate is divided in two: those who think that law is reducible to social facts and those who think that law is connected to morality. [1] [2]
If our understanding of what the law is poses a question, we may instead find it prudent to ask what the law is not. At first glance, this question may not appear to be a panacea to our problem. Many things are not laws: for example, morals, suggestions, and the 2002 AU Ford Falcon. In any case, the purely negative method of enlightenment has traditionally been understood as the exclusive stomping-ground of theologians, who call it the via negativa. These theologians lament the inadequacy of language in attempting to describe the highest power — God is left to carve his identity out of imperfect metaphors. Therefore, the only statements which are literally true about God are negative statements, such as ‘God is a non-entity.’ [3]
The law has, in a similar fashion, puzzled and mystified those who have attempted to systematise it. Perhaps a definition of what the law is not may help us understand this mystery.
The Concept of Law
Now of course, when Parliament passes a law, we do not generally spend an afternoon stroking our chins in awestruck bemusement. The law-making process, while often complex and confusing, simply appears to spring from human action, not fall from the sky. An institution authorised to create rules and regulations does so, and people obey them because of social customs that determine the sources of authority. [4] If you broadly assent to this theory, you are a legal positivist, a position most famously proposed in H.L.A. Hart’s The Concept of Law. [5] You believe that law is not a fundamental truth; rather, it is derivative and owes its existence to more basic entities. [6] These entities are social physical facts, facts that can be observed in our reality — the regularities of human social behaviour, customs, dynamics of power. The law is a human reaction to the facts of life.
Law, Religion, and Morality
But somehow, through messy customs and contested decisions, a law can establish what should be done - in other words, a norm. Because it is normative, the language of law often mirrors the language of morality: there are duties, obligations, and imperatives. [7] Its validity seems to be more than the product of brute strength or social compliance, so morality arises as a possible ground of law. [8] This view is found in Plato’s Gorgias, where the ancient Greek philosopher Socrates opines that legislation is to the soul what gymnastics is to the body; [9] that is, promotes the well-being of the soul, ridding us of wickedness. [10] In the Platonic tradition, the law was conceived of in terms of order and harmony; it was not a mere human creation, but was rather part of the divine harmony that governed the entire cosmos. [11]
Plato and Socrates were far from unique in associating law with a divine moral order, and it is not hard to see why. Today, laws govern virtually the entire spectrum of human behaviour. They determine how one ought to behave in nearly every situation and, ultimately, express a collective way of life. But once upon a time, this role was matched by religion, which gave divine sanction to norms and ways of life. [12] In many cultures throughout history, religion and law were entangled in complex ways. [13] For centuries in Western history, it was not unusual for people to believe that the criminal law traced back to the Ten Commandments and, in general, legal institutions were derived in part from divine law. [14]
In the modern West, Protestant ethics served as the midwife of the birth of secular legal systems. [15] But with the Enlightenment’s assault on theology, the divine world lost its unquestioned indispensability to morality and consequently to law. [16] The ground of law initially mutated into an understanding of divine law as something encoded in the universe, although proponents hesitated when ascribing divine authorship, in the development of what was called ‘natural law.’ By the 17th century one could propose without controversy that true moral principles could be derived from a secular world of experience and reason. [17] This ‘natural law’ could justify the specific laws established by human authorities. [18] But was this natural law universally binding?
From Natural Law to Sociology
At the heart of the problem is a dilemma, well-known to philosophers, proposed by David Hume in 1739. [19] He pointed out that ‘ought’ statements cannot derive from ‘is’ statements. [20] Thus, the fact that human biology endows us with certain natural dispositions does not mean we ought to act on them. Categorical obligations do not logically emerge from human nature. Hume’s argument was an attack on 18th century rationalists, and is deemed to have brought to an end the secular natural law tradition that had prevailed for more than 150 years. [21]
If it is not ultimately grounded in nature, it then follows that law is simply a part of the socially created world – a contingent, changing, precarious product of social activity in principle no different from, say, the capitalist market or politics.
The task of grounding law in social facts was undertaken by John Austin and Jeremy Bentham in the 19th century but found its most powerful and nuanced proponent in H.L.A. Hart. Keeping to Hume’s distinction, the fact that law is made up of social facts, such as regular obedience and power, cannot make law obligatory, or normative. Social habits do not grant validity to law. [22] Hart would, nonetheless, try to explain the normativity of law as a function of simply another social fact about secondary rules, removing any necessary connection to morality or justice. [23] Indeed, Hume’s division between is and ought would affect non-positivists too, who at the end of the day could not escape explaining the validity of law in sociological terms - such as past political decisions that determine the limits of collective force. [24]
The Juristic God
With the separation of facts and norms, law is revealed as a mere social creation, not a ‘brooding omnipresence in the sky.’ [25]A law is a normative evaluation; and an evaluation implies an evaluator. [26] But in the absence of God, an unevaluated evaluator at whom the normative buck stops, it is impossible to say that anything ought to or ought not to be. [27] No moral or legal claim can get away with the pretension of being more right than others without a higher standard of validation against which other claims are measured. [28] In many ways, the crisis leads inexorably to some version of Kelsen’s notion of a basic norm – an ultimate norm which validates every other law, but which itself is simply presupposed, fusing ‘authorisation and rightness,’ is and ought. [29] This is the juristic God who requires a leap of faith from his devotees.
What is a law, then? Or rather, what is not a law? A law is not made of religion, or unchangeable natural reason, or metaphysical norms. Yet, neither is it entirely a prosaic social fact, insofar as it carries a normative power whose grounding remains an arbitrary presupposition. In some strange way, this presupposition is God — who is, as the theologians tell us, only negatively describable.
[1] H.L.A Hart, The Concept of Law (Oxford University Press, 1961) (‘Concept of Law’).
[2] Ronald Dworkin, Law’s Empire (Harvard University Press, 1986).
[3] Leslie Stevenson, ‘Negative (Apophatic) Theology’ in Eighteen Takes on God (Oxford University Press, 2019) [23].
[4] Concept of Law (n 1) 110.
[5] Ibid.
[6] Samuele Chilovi and George Pavlakos, ‘Law Determination as Grounding: A Common Grounding Framework for Jurisprudence’ (2019) 25(1) 54-56 (‘Law Determination as Grounding’).
[7] Concept of Law (n 1) 7.
[8] Law Determination as Grounding (n 6) 56.
[9] Plato, Gorgias. Plato in Twelve Volumes, Vol. 3 translated by W.R.M. Lamb (Harvard University Press, 1967) 464a.
[10] Fred D. Miller and Carrie-Ann Biondi, A Treatise of Legal Philosophy and General Jurisprudence: Volume 6: a History of the Philosophy of Law from the Ancient Greeks to the Scholastics (Springer, 2015) 60.
[11] Ibid 61.
[12] Mulford Q. Siblef ‘Religion and Law: Some Thoughts on Their Intersections’ The Journal of Law and Religion (1984) 2(1) 42.
[13] Ibid.
[14] Harold J. Berman, ‘Religious Foundations of Law in the West: An Historical Perspective’ The Journal of Law and Religion (1983) 1(1) 5.
[15] Ibid.
[16] Jonathan I. Israel, Enlightenment Contested: Philosophy, Modernity, and the Emancipation of Man 1670-1752 (Oxford University Press, 2006) 663.
[17] John Finnis, Natural Law and Natural Rights (Oxford University Press, 2011) 44.
[18] See ibid.
[19] Ibid 36.
[20] See ibid.
[21] Ibid 42.
[22] Concept of Law (n 1) 58.
[23] Ibid 97-120.
[24] Marianne Constable, ‘Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law’ Law and Social Inquiry (1994) 19(3) 573.
[25] Arthur A. Leff, ‘Unspeakable Ethics, Unnatural Law’ Duke law journal (1979) 6 1229, 1233.
[26] Ibid.
[27] Ibid 1234.
[28] Ibid.
[29] John Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford University Press, 2012) 9-10.
This article was originally published under the title ‘What’s (not) a Law?: Defining the Law in Negative Space’ in The Brief Edition 2, 2024 — Ceci n’est pas une loi.