Legal Ontology: Does “The Law” Exist?

Greetings to those of you in Seattle, who now know the answer to the age-old question: “Where would we be without law?” Answer: “Seattle.”

The title of my Paper was initially “Eric Voegelin on Law,” but, as they say, “it evolved.” I want rather to consider the question, “Does ‘the law’ exist?,” with primary, but not exclusive, reference to two thinkers. The first is Steven D. Smith, a professor of law, although schooled also in philosophy, whose book, Law’s Quandary,[1] first published in 2004, deals with that question in a very captivating way. The second is Eric Voegelin, who, in his lecture on “The Nature of the Law,” appearing in Volume 27 of The Collected Works,[2] approaches the subject of legal ontology in a somewhat different way and reaches a somewhat different conclusion. Because Professor Smith does not have the philosophical and theological insights of an Eric Voegelin, his work comes in second, although its limitations are themselves illuminating.

But I begin with an example from my own experience as a practicing lawyer that suggests that the question of the existence of “the law” is always present, not just in theory but also in practice.

A few years ago, I was at counsel table in a federal district court courtroom waiting for my case to be called. The case involved a controversial matter of some public interest, and a significant motion in that case was about to be argued. Other lawyers were with me at the table, and across from us was another table similarly full of lawyers representing the other side of the matter. The federal courtroom was huge and magnificently appointed, with very high ceilings, like a church. It was one of several similar courtrooms in a lavish downtown federal courthouse on which no expense had been spared. Given the issues in the case, it was likely that the lawyers at the two tables had little in common. There was some tension in the room, but everyone was quiet, sitting in hushed reverence. It was much quieter and more reverent than it is before many Masses I attend, where the atmosphere is more that of a social than of a sacred event. We all—the lawyers at that other table and the lawyers at our table, “them” and “us”—awaited the appearance of a vested minister of justice in respectful silence, ready to leap to our feet out of respect when she should appear.

I could not help but think that I was in the one place where the differences that so sharply divide so many of us were about to be resolved, at least until the losing side could appeal to an even more august court. Some of the lawyers may not have believed in God, but we all believed in “the law,” and we were all in a Temple of “the law.” The old saying is that “there are no atheists in foxholes.” Similarly, at counsel tables in courtrooms around the country peopled with lawyers about to argue their cases, you will not find any who are even agnostic about “the law.” “The law” was the one thing we in that courtroom could be sure we held in common. After all, each side appealed to it, paradoxically, for what would be precisely the opposite of the outcome sought by the other side. The experience suggested that “the law” must be something more abstract and ethereal–metaphysical even–than the statutes, regulations, and cases from which each side had prepared the arguments it was about to give. But lawyers, educated as we are by modernity, come to disbelieve in the abstract and the ethereal, much less in the metaphysical.

And so here was a great paradox, and it raised the question, “Does ‘the law’ exist?,” in much the same way that “practitioners” of religion might confront the question, “Does God exist?”

“The law” is invoked daily by lawyers and judges, in courts at all levels, from justice of the peace courts to supreme courts, not to mention those in all branches of government at every level, all over the country. And the phrase is used in ordinary language not just by lawyers and judges, but, at one time or another, by everyone. We refer not just to “a law” or “laws,” like the Statute of Frauds or the common law of contracts, but to “the law,” as though it is something real, something objective, something that exists even apart from anyone’s perception of it. In the practice of law, how often we hear disappointed lawyers and the litigants they represent bemoan the fact that the judge got “the law” completely wrong in their case. Yet judges are supposed to be the oracles of “the law.” How can they “get it wrong”? For that matter, every case brought at law is brought to answer the question, “What is ‘the law’ in this case?,” but how can it be that the question can even arise in the first place if we live under the “rule of law”? Moreover, the first court may answer the question in a case in one way, the intermediate appellate court may answer it in the opposite way, and the supreme court may answer it in an entirely different way, with concurring and dissenting judges and justices at the appellate levels having different and even opposite views to the views expressed by the courts on which they sit.

Another part of this same paradox is that despite the lofty place judges occupy in the public mind, the first question asked by a practicing lawyer when a client brings him a case is likely to be “Who is the judge?” even before he considers “What is the law?” And if the “wrong” judge is on the case, the next question asked by the lawyer will be, “Can we notice him/her off the case, either without or with cause?” This reflects not just a cynicism about “the law,” although it may also reflect that, as an understanding of the nature of “the law.” Practicing lawyers face firsthand the fact that the resolution of legal controversies depends on something other than what’s in the books, on something other than “just words,” although it is difficult to say what that is.

Much of what is called the “philosophy of law” addresses these kinds of situations, and so it is easy to see how a simple version of legal philosophy like “legal realism” could have emerged. As that beguiling cynic, Oliver Wendell Holmes, put it: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”[3] And so those of us engaged in legal practice often find ourselves in an environment influenced more by Machiavelli than by St. Thomas. Now that the United States Supreme Court, in its great wisdom, has permitted lawyers to advertise, try to find, for example, a law firm ad in which the firm does not extol itself as “aggressive,” or, for that matter, try to find an ad in which a law firm does extol itself as “ethical.”

Despite the strain of warranted cynicism everyone has about the law, it may be the only thing we all still in some sense hold in common, and so the only thing holding our poor polity together, although seemingly ever more tenuously. Where, indeed, would we be without the law? Do we not all still wait with baited breath for the United States Supreme Court to tell us what “the law” is on the most important and deeply divisive social issues of the day? We certainly do not expect answers to these questions from our so-called political leaders, such as they are. Do we bow to the Supreme Court because we recognize the transcendent moral significance of “the law” and believe that our highest Court expresses it, or because we believe, like Hobbes, that “the law” is whatever issues from the sovereign we have consented to decide these sorts of ultimate questions for us so that we will not be at one another’s throats? Natural lawyers and positivists fall respectively on opposite sides of these questions.

The Supreme Court itself, made up of mere human beings trained in American law schools, many of whom have no real education beyond “the law,” is more than happy to decide our ultimate issues for us. In a remarkable passage in a remarkable case of recent memory, even now under challenge, the Supreme Court announced itself as Imperator/Imperatrix, insisting that once it spoke on a matter of great public importance, in that case, the legality of abortion, it was up to the mere citizenry to bow and pay homage, even if, indeed especially if, the Court may have gotten it all wrong. “Like the character of an individual,” said the Court on that occasion,

the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.”[4]

Perhaps the Court’s “concern with legitimacy” should issue in passages of less turgid English prose. As one wag put it at the time, trying to translate this, “We shall be your Court, and you shall be our people.”

Law’s Quandary

Law’s Quandary is a book-length meditation by Professor Steven D, Smith on the question of whether “the law” exists.

Like my federal courtroom example, Professor Smith imagines a visitor from an alien culture—or planet—who arrives at an American law firm, tells one of its lawyers that she has heard that “the law” is “The crowning glory of your civilization, from the way people sometimes talk,”[5] and asks the lawyer to show her this wonderful thing called ”the law.” The lawyer takes her on a tour, showing her things like a deposition, a client counseling session, a criminal trial, an oral argument on an important motion in a civil case, a law school lecture on contracts, and the firm’s extensive law library. At the end, the visitor, exhausted but disappointed, tells the lawyer that she was really hoping he would show her “the law,” and she still has not seen it. Where is it? It is not clear, says Smith, who is guilty of a misunderstanding, the lawyer or his visitor.

Law’s quandary appears when we ask questions about legal ontology, about the “being” of the law. Is it, as some argue, “just words?” (to use a question Smith raises), or is it something more? The answer to this question distinguishes, to put it somewhat simplistically, positivists from natural lawyers. And the question, not just in form but also in substance, is not unlike the question often asked about the Bible. Is it “just words?,” or is it something more? In each case, if the answer is “Something more,” what, if anything, can be said about that something?

Law’s quandary, like religion’s, emerges especially in the skeptical turn taken in modernity. How do secular societies, willing, as they are, to be governed by the law, account for that by which they are governed? A remarkable range of thinkers confront the question of whether the law exists, often implicitly but sometimes, as in the cases of Professors Smith and Voegelin, explicitly. Smith and Voegelin are certainly not “legal positivists,” although with Smith there may be some doubt. Smith is familiar with the natural law, but does not appear to have necessarily accepted it. Voegelin, we might say, is “close” to being a “natural law theorist,” but Voegelin might not like our having said it. In any event, before we consider Smith and Voegelin, we might say something briefly about the very concept of a legal “theory,” and then about positivism itself.

First as to theory. Our friend David Walsh has written extensively on the Aristotelian point that theory must emerge from practice, rather than the other way around. Hadley Arkes has captured this concept in the legal setting. Arkes cites with approval the wish of a learned friend of his to have as the epitaph on his gravestone, “’He died without a theory.’”[6] A colleague once dared to “accuse” Arkes of having a “theory” of natural law, to which Arkes responded,

But I can join my friend in saying that I, too, have no “theory.” To say that someone has a “theory” of natural law is to suggest than an observer, looking on, can see played out before him people seized with “theories”—that he may stand there, in a wholesome detachment, seeing theories of various sorts whizzing past. From that vantage point we are encouraged to make judgments about the theories, or fragments of theories, that are plausible or implausible, right or wrong, true or false. I said then: Just tell me the ground on which you are making those judgments about the theories that are plausible or implausible, true or false, and you would have been led back to the ground of what I understand as the natural law. For you would have been led back to the ground on which we have confidence in the things we can truly know about the properties of propositions, about the statements that are true or false, and finally, then, about the things that are morally right or wrong. You would be led back to what Blackstone called “the laws of reason and nature.”[7]

Second, we force ourselves to say something positive about positivism. We could say that for legal positivists, the law is indeed “just words,” the words found in, for example, statutes and cases, or that the law is only “the command of the sovereign.” To the question, “Does ‘the law’ exist?,” positivists would answer with an emphatic “Yes,” and point simply to the words or commands in question. And there are some positivists who hold that view. Holmes famously referred to the classical conception of law, with its metaphysical basis, as “a brooding omnipresence in the sky,” contrasting that conception with his own, that of law as “the articulate voice of some sovereign or quasi sovereign that can be identified.”[8] But other positivists are more nuanced, and there are things natural lawyers can learn from them. H. L. A. Hart and Lon Fuller, for example, are certainly not natural lawyers, but they do not read moral considerations out of the law.[9] Holmes, in contrast, said: “For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.”[10] Our own view is the opposite of such “hard” positivism, and so when Holmes says, “When we study law we are not studying a mystery but a well-known profession,”[11] we reply that however well-known the profession (perhaps unfortunately) may be, “the law” itself remains shrouded in mystery, not unlike “ethics,” a subject with which the law is, pace positivism, intimately connected.

Returning to Steven D. Smith, a thinker for whom “the law” is at least not completely “disenchanted,” we find in him a wonderful example of a modern thinker who would like to return to the philosophia perennis but, unlike Voegelin, is not sure that it is possible. Modernity is, perhaps, too much with him.

In any event, Smith makes a mighty effort to surmount what he calls “this anti-metaphysical animus” that “dominates the legal academy—and . . . paralyzes our efforts to understand law.”[12] It is, he argues, “urgently necessary” to take a fresh look at law “because the ‘Path’ that Holmes pointed to and that generations of his dutiful followers have trod, have trod, have trod has led to a jurisprudential dead end.”[13] Smith struggles with “faith,” apparently in the religious sense, and finds that “this struggle [cannot] be divorced from the effort to understand law: hence this book.”[14] To paraphrase Leo Strauss, Smith understands both that Rome burns, and that Nero fiddles. The question is whether Smith has the resources—as Voegelin most certainly does—to put out that fire.

Smith suggests that the purpose of Law’s Quandary is to try to re-connect law with its metaphysical roots. The re-connection is difficult to effect because not only is metaphysics not taken seriously in the legal academy, it is not taken seriously in the academy, period. Worse, modern legal philosophers, and many modern philosophers generally, have seen it as their task to get rid of metaphysical speculation entirely. “How then,” Smith asks, “can a subject as removed and presumptively useless, if not actually pernicious, as metaphysics be the source of—or a possible remedy for—any difficulties in law, legal discourse, or legal theory?”[15] The task Smith sets for himself in the book is to answer that question, with two preliminary qualifications. First, his concern is not with the full range of metaphysical issues, but “with the subcategory sometimes called ‘ontology’ . . . the subset of the discipline that addresses the question of ‘what there is.’”[16] Hence his focus on whether “the law” exists and how it exists. Second, as a law professor rather than a metaphysician, Smith admits that his argument is more properly characterized as “practical metaphysics” than full-blown metaphysics.[17] The term “practical metaphysics” may seem, Smith acknowledges, “oxymoronic. So the chapters in [the first part of the book] attempt to explain how law might present, at its core, questions that are at once thoroughly practical and deeply metaphysical, and how neglect of those questions might render our talk about law a form of highly refined ‘non-sense.’”[18]

Referring again to our friend David Walsh, he has argued that in at least one major strain of modern philosophy the “deeply metaphysical” emerges in, through, and from the “thoroughly practical.”[19] And so while most people are inclined to think of the law as “thoroughly practical,” perhaps as the last thing around which metaphysical questions could form, it should perhaps not be surprising that “deeply metaphysical” questions will emerge from a careful study of the law, in the case of Law’s Quandary itself, the ontological question of whether such a thing as “the law” even exists, and, if it does, what is the mode of its existence.

This is not to say that Smith is not handicapped by the fact that he is not a philosopher. He admits this handicap, while still evidencing significant familiarity with the subject. There is, however, no indication that he is aware of the work of Professor Voegelin, which would have led him much deeper into his subject than he is able to go.

In Chapter 3 of Law’s Quandary, entitled “Does ‘the Law’ Exist?,” Smith changes the formulation of his question. He recounts his story of the alien visitor who arrives at an American law firm asking to see “the law,” and who is then shown such things as depositions, counseling sessions, trials, oral arguments, lectures on law, and law books. Is what she has seen—we’ll call it “Law 1”–“the law”? In thinking that there must be something more has she made, Smith asks, what Gilbert Ryle called a “category mistake”? Or is “the law” something else, something “more,” something independent and ethereal, as she supposes–we’ll call it “Law 2”?[20] In other words, as Smith puts it, “Does ‘the law’ exist in the way the theist thinks God exists? Or only in the way the atheist thinks God exists (a view usually expressed by saying that God doesn’t exist)?”[21]

The distinction between Law 1 and Law 2 is, says Smith, “elusive,” and “It is not always clear which of these things we mean when we talk about law.”[22] But the distinction permits Smith to re-phrase the question, “Does ‘the law’ exist?,” to “Does the law (or, if you will, the legal system) depend on, or presuppose, ‘the law’?”[23] Is Law 2 “real and necessary?”[24]

And this leads Smith into what I take to be (although Smith might disagree) the heart of his book, namely, his discussion of the difference between what he calls “The Classical Response” to his reformulated question, and what he calls “The Modern Repudiation of ‘the Law’.”

First as to “The Classical Response,”[25] which Smith also calls “the ‘traditional’ . . . account of law [which] diverges sharply from more modern accounts of law.”[26] The classical or traditional account posits the real existence of Law 2. Thus at common law, “judicial decisions are not themselves ‘the law,’ exactly, but rather are ‘evidence’ of something that precedes and transcends them—of ‘the law.’ And the intricacies of common law argumentation are calculated to get at that deeper or larger authority”—to get at, that is, Law 2. For these propositions, Smith cites the exemplary authority of William Blackstone and Joseph Story.[27]

Smith is puzzled on how exactly to explain what appears to be this “faith” in Law 2, a “faith” so at odds, he thinks, with the modern mind. Holmes, for example, a modern jurisprude, referred to Law 2 “scornfully [as] ‘a transcendent body of law outside of any particular state but obligatory within it.’”[28] Smith traces this “belief” in Law 2 directly to the “belief in God” held by thinkers like Blackstone and Story, and exemplified most fully in the account of law given by St. Thomas himself:

Blackstone and Story were, after all, heirs of a worldview that assumed that God was real—more real than anything else, in fact, or necessarily rather than just contingently real—and had created the universe according to a providential plan. This view had important implications for the nature of law. Perhaps the most systematic working out of those implications had been performed centuries before Blackstone or Story—by Thomas Aquinas. In Aquinas’s account, human or positive law emanates at one level from an earthly ruler or legislator. So far, modern legal thinkers like Holmes should have no quarrel with the classical account. But more is needed for law, Aquinas maintained, than enactment by human legislators. More essentially, even human or positive law derives from the “eternal law,” which is the divinely ordained order governing the universe, and positive law gains its status as law by virtue of participating in that order. “Since then the eternal law is the plan of government in the Chief Governor,” Aquinas explained, “all the plans of government in the inferior governors must be derived from the eternal law.” And it followed that “every human law has just so much of the nature of law as it is derived from the law of nature.” Aquinas added that “if at any point [the human law] deflects from the law of nature, it is no longer a law but a perversion of law.”[29]

We quote this paragraph in full because it represents, to our way of thinking, the only answer to the question, “Does ‘the law’ exist?,” or “Does the law depend on, or presuppose, ‘the law’?,” and thereby it resolves “law’s quandary.” It is not clear that Smith would agree, but he is at least greatly taken with Aquinas’s thought.

He even recognizes, as many do not,[30] that Aquinas’s eternal and natural laws not only do not dispense with the necessity for human, positive law, but absolutely require it:

A few legal rules, such as the prohibition of homicide, might be derived directly from—“read off of,” as we say—the eternal law. But the overwhelming bulk of positive law consists of the detailed specification, or determinatio, of what the eternal law gives only in generalities. Such specifications are the product of judgments by human legislators, whose pronouncements have the status of law. Even so, the legal status of such pronouncements depends on their indirect derivation from the eternal law, and they should be understood and interpreted in accordance with that overarching reality.[31]

Smith here leaves out the natural law, which is the human link between the eternal law and human positive law. Thus Aquinas does not say that positive law derives directly from the eternal law, but from the natural law, which, as the “participation of the eternal law in the rational creature,”[32] in effect mediates between God and man. But as to the concept of determinatio, Smith’s account is faithful enough. And it is in line with the Thomistic, and Biblical, proposition that man is made in the image and likeness of God, and so must accept the responsibility, required by his nature, that he legislate and adjudicate within the jurisdiction assigned to him by God. Or, as Thomas More put it in Robert Bolt’s play, A Man for All Seasons, when More was confronted with a question of the interpretation of a positive law: “God made the angels to show him splendor—as he made animals for innocence and plants for their simplicity. But Man he made to serve him wittily, in the tangle of his mind!”[33]

Smith cites John Fortescue, Edward Coke, and William Blackstone as proponents of the proposition that “the law” exists along Thomistic lines. He also notes that “The theistically oriented metaphysics positing God as a sort of transcendent Legislator and the hidden source even of human law was sometimes expressed in the statement that Christianity was part of the common law. Stuart Banner observes that, in 1676, when the great common law judge and scholar Matthew Hale made this pronouncement, he was merely making explicit what would widely have been regarded as self-evident.”[34] This idea was also deeply embedded in American law. “Banner further explains—the point is crucial to our present discussion—that the proposition that Christianity was part of the common law was ‘not a doctrine so much as a meta-doctrine.’ This meta-doctrine helped support a ‘non-positivist’ view of the common law ‘as having an existence independent of the statements of judges,’ and hence as something that was there to be ‘discovered,’ not made.”[35]

In short, in the classical perspective, Law 2 exists independently of Law 1 but in intimate relationship with it.e Zlso notes

Excursus: Aquinas’s “Treatise on Law”

Having confessed our own “Thomism”—that unfortunate word, since “Thomism” is not an “ism” in the ideological sense—we want to say something more about it relevant to our subject, interrupting our discussion of Law’s Quandary at the point at which Smith himself all too briefly mentioned Aquinas. For the “Treatise on Law” appearing in the Summa Theologica[36] was, as Smith says, “the most systematic working out of [the] implications” for law of the “assumption” “that God was real . . . and had created the universe according to a providential plan.”

If Blackstone, Story, Fortescue, Coke, and Hale were heirs to Aquinas, as Smith rightly claims, Aquinas himself was heir to a “tradition” that stretched back to the mind of man runneth not to the contrary. It is only in modernity that our minds have run to the contrary, and so perhaps we are the ones who should be embarrassed by our lack of sophistication in disbelieving in what almost all of our ancestors, up until a few mere centuries ago, took for granted. We are, after all, the ones left with the quandaries, legal and otherwise. So in addition to discussing Aquinas as the apex of this “tradition,” I want to show its beginnings in the ancient cosmological civilizations, and its continuity in the differentiated forms of revelation and philosophy, that also appear even in modernity. I then want to indicate that in the waning of the belief in God’s existence, recourse was had to secular conceptions of “the law” against which human positive laws continue to be measured, such as in the “modern” theories of natural law of Hobbes, Locke, and Rousseau, and in the modern jurisprudence of our own Supreme Court. Indeed, it is only in the hardest legal positivism that we find a rejection of the premise that something called “the law” exists, together with its correlate that only “law” exists. So-called “legal philosophy” then shrinks to a consideration of “law” and such topics as how “law” comes to be.

So the alternatives appear to be that if we have the gods or God, “the law” appears with a fundamental connection to the gods or God. If we no longer have the gods or God, either secular alternatives appear to ground human positive laws, or “the law” itself simply disappears and we are left only with law. Each alternative will have consequences for personal and social order.

Turning to the “Treatise on Law,” we note that Aquinas embeds human law in a broader conception of law, so that even if we assume that somehow, for the sake of the argument, we had no positive human law, we would still have “the law.” “The law” precedes laws. Indeed, “the law,” on Aquinas’s account, in the sense of the natural law, derivative as it is from the eternal law, is not only always with us, but is in some sense within and an essential part of us, and accounts for the tension we often feel between what our law is and what it ought to be. When we come to Voegelin we will see that he, although not a “Thomist,” roots the ontology of law in the tension of this “Ought.” We might go further and say that all our most significant quandaries, and not just law’s, are a function of the tension created between the is and the ought to be.

The “Treatise on Law” appears in the massive Summa Theologica, and cannot be fully understood apart from the context in which it appears. However, for our purposes, we will simply note that for Aquinas, law is only one of the principles of human acts, and, at that, the least important of those principles. There are intrinsic and extrinsic principles of human acts. The intrinsic principles are the habits, divided into good and bad, that is, into virtues and vices. While virtue and law are related, personal and social order depend much more on the presence of the virtues, those good habits that are within the human person, and the absence of the vices, than on law, those directives that come from outside the human person. The extrinsic principles of human acts are law and grace. And of course for Aquinas grace is ultimately the foremost principle of human acts.

Aquinas, good classicist that he is, begins his treatment of law with a consideration of its essence. “Law,” in its various forms, is defined as “nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”[37] As an ordinance of reason,

Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for “lex” [law] is derived from “ligare” [to bind], because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts, as is evident from what has been stated above (I-II:1:1 ad 3); since it belongs to the reason to direct to the end, which is the first principle in all matters of action, according to the Philosopher (Phys. ii). Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently it follows that law is something pertaining to reason.[38]

J. Budziszewski interprets this language as follows: “To say that law is a rule of acts is to say that it tells us what to do; to say that it is a measure of acts is to say that it presents a standard with which our acts can be compared and by which they can be evaluated.”[39] Law without “the law” may be a rule, but it cannot be a measure.

A concise refutation of what will appear, centuries later, as legal positivism is given in Aquinas’s Reply to Objection 3 in the first Article of the first Question of the “Treatise on Law.” The Objection is, given that the law moves those who are subject to it to act aright, and since it belongs properly to the will to move to act, therefore law pertains, not to the reason, but to the will. And here Aquinas quotes “the words of the Jurist [Ulpian] (Lib. i, ff., De Const. Prin. leg. i): ‘Whatsoever pleaseth the sovereign, has force of law,’” the definition of law that will be given much later by Hobbes, Bentham, and Austin. Aquinas’s Reply to this Objection is as follows:

 Reason has its power of moving from the will, as stated above (I-II:17:1): for it is due to the fact that one wills the end, that the reason issues its commands as regards things ordained to the end. But in order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason. And in this sense is to be understood the saying that the will of the sovereign has the force of law; otherwise the sovereign’s will would savor of lawlessness rather than of law.

That is, in order to make law, the will of the sovereign must be in conformity with “the law,” which is the rule of reason.

Aquinas roots “the law” in what he calls the “eternal law,” in which persons participate through their rational nature, which participation Aquinas calls the “natural law,” and it is against “the law” in this sense that human positive laws are measured. Aquinas thus distinguishes law’s various “jurisdictions,” from the eternal, to the natural, to the human, and including also positive Divine law, both the Old and the New, and describes how each “jurisdiction” relates to the others.[40] Aquinas finds law existent, first, in the mind of God, which orders all things, and this is the eternal law; second, in the mind of persons, those creatures who participate in the eternal law by virtue of their reason (“this participation of the eternal law in the rational creature is called the natural law”[41]); and finally in human positive law, the laws made by persons in the spinning out of determinations and conclusions at lesser and greater removes from the first principles of the natural law—an exercise undertaken by persons trying, whether conscious of it or not, to serve God wittily, in the tangle of their minds.[42] Human positive law is at the third remove from the source of law, and so for Aquinas, the question, “Does ‘the law’ exist?,” must be answered in the affirmative even if we find some human positive laws invalid, immoral, indeterminate, or otherwise lacking in being. Moreover, Aquinas describes a way in which human positive law is so situated that its deficiencies, its “lack of being,” can be accounted for and even corrected without going outside the realm of law altogether.

It is not as if, we hasten to add, Aquinas has constructed a “closed system” through which we can always know what “the law” is. On the contrary, Thomistic “law” is as “open” as it is possible for law to be, “opening” as it does to transcendent reality, which provides not answers but a direction, in the existential following-out of which “answers,” such at least as are vouchsafed to persons, may be found. The tension, what Voegelin calls the “Oughtness” of the law, is palpable in Aquinas’s construction, since the human law must, at least in some sense, instantiate the eternal law through the mediation of the natural law. “ . . . all laws, in so far as they partake of right reason, are derived from the eternal law.”[43] And Aquinas is very clear that the great bulk of the content of human law is left for humans to create through the exercise of the virtue of prudence, given that we have knowledge of only the most fundamental precepts of the natural law.

However, the natural law itself does have content. The first principle or precept of the natural law, which is also the first principle or precept of practical reason, is indemonstrable, and founded on the notion of “good” as that which all things seek after. The precept is “that good is to be done and pursued, and evil is to be avoided. All other precepts of the natural law are based upon this: so that whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of the natural law as something to be done or avoided.”[44]

There is another level of precepts below this one, although it is similarly undetermined for purposes of propositions of positive law: “Since, however, good has the nature of an end, and evil, the nature of a contrary, hence it is that all those things to which man has a natural inclination, are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance. Wherefore according to the order of natural inclinations, is the order of the precepts of the natural law.”[45] Note that by “inclinations” Aquinas means desires according to nature, that is, in the case of persons, according to natural reason, which is human nature, and not whatever any one may happen to desire at any particular time. It is therefore possible to not be conscious of a natural inclination. And as we proceed further from the first principle of the natural law, reason may become cloudy through a variety of factors, including passion and, especially in our time, the “climate of opinion.”

Aquinas posits three natural inclinations, based on the ascending order of being, each of which point to a “common good” at that level of being, the “common good” being itself part of the definition of law.[46] At the first level, persons have in common with all substances the inclination to be, and so to preserve their lives. At the second level, persons have things in common with other animals, such as to continue and educate their species. At the third level, the specifically human level, persons have a natural inclination to know the truth about God and to live in society, “and in this respect, whatever pertains to this inclination belongs to the natural law; for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination.”[47]

The precepts of the Decalogue, which are also very general, are also said to be precepts of the natural law.[48]

The precepts of the natural law therefore themselves require human positive law. “ . . . we conclude that just as, in the speculative reason, from naturally known indemonstrable principles, we draw the conclusions of the various sciences, the knowledge of which is not imparted to us by nature, but acquired by the efforts of reason, so too it is from the precepts of the natural law, as from general and indemonstrable principles, that the human reason needs to proceed to the more particular determination of certain matters. These particular determinations, devised by human reason, are called human laws, provided the other essential conditions of law be observed.”[49]

It is a serious mistake, and one often made by proponents and opponents of natural law, to claim for the natural law that which is within the province of human law—a mistake, as we have seen, Smith, supported by Yves Simon, explicitly disavowed.

It is another mistake to think that human law, on the account of a natural lawyer, while it does have a significant purpose, has a purpose greater than it has. We have already seen that law is only one of the principles of human acts, and the least important at that. Further, in considering the effects of law, while Aquinas does begin by saying that the effect of law is to make persons good,[50] the goodness effected by law must then be considered at each of law’s “jurisdictional” levels.

So while the natural law prescribes the acts of all the virtues, considered as virtuous acts[51] (recall that law reaches only the outward manifestation of human conduct, not the interior disposition from which conduct springs, which is itself governed by virtue and grace), in contrast, “human law does not prescribe concerning all the acts of every virtue: but only in regard to those that are ordainable to the common good—either immediately, as when certain things are done directly for the common good—or mediately, as when a lawgiver prescribes certain things pertaining to good order, whereby the citizens are directed in the upholding of the common good of justice and peace.”[52]

Moreover, human law does not, and should not even attempt, to repress all vices because “. . . human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.”[53] Aquinas’s position here is not dissimilar to John Stuart Mill’s “harm principle,” a staple of liberal political theory.

Finally, while Aquinas also goes beyond Mill in saying that “The purpose of human law is to lead men to virtue,” he insists that this leading is to take place not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz., that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written (Proverbs 30:33): “He that violently bloweth his nose, bringeth out blood”; and (Matthew 9:17) that if “new wine,” i.e. precepts of a perfect life, “is put into old bottles,” i.e. into imperfect men, “the bottles break, and the wine runneth out,” i.e. the precepts are despised, and those men, from contempt, break into evils worse still.[54]

There is another sense in which we cannot expect from human law what we expect from the natural law. While the natural law is in a sense the same in all men, the practical reason, in contrast with the speculative reason, “is busied with contingent matters, about which human actions are concerned: and consequently, although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects.”[55] And so “in matters of action, truth or practical rectitude is not the same for all, as to matters of detail, but only as to the general principles: and where there is the same rectitude in matters of detail, it is not equally known to all.”[56] For example, while it is correct as a general principle to say that goods entrusted to another should be returned to their owner, in some cases the principle will fail, as when the owner intends to use the goods to harm others.[57] “And this principle will be found to fail the more, according as we descend further into detail . . . because the greater the number of conditions added, the greater the number of ways in which the principle may fail, so that it be not right to restore or not to restore.”[58]

It may be asked, How is it that Aquinas can claim that the natural law, the law deeply embedded in human nature itself, actually exists when we see that significant human laws of whole societies sometimes do in fact violate the natural law? Here we think, for example, of the laws of the Third Reich and of the abortion laws of the American regime. Aquinas provides this answer:

Consequently we must say that the natural law, as to general principles, is the same for all, both as to rectitude and as to knowledge. But as to certain matters of detail, which are conclusions, as it were, of those general principles, it is the same for all in the majority of cases, both as to rectitude and as to knowledge; and yet in some few cases it may fail, both as to rectitude, by reason of certain obstacles (just as natures subject to generation and corruption fail in some few cases on account of some obstacle), and as to knowledge, since in some the reason is perverted by passion, or evil habit, or an evil disposition of nature; thus formerly, theft, although it is expressly contrary to the natural law, was not considered wrong among the Germans, as Julius Caesar relates (De Bello Gall. vi).[59]

As a further refinement, even if a human law is violative of the natural law, it may still bind persons in conscience. Laws are either just or unjust. Just laws are laws that are ordained to the common good, rather than to the good of the rulers; that do not exceed the authority of the lawgiver; and that do not lay disproportionate burdens on their subjects. Just laws bind.[60]

Laws may be unjust in two ways. First, laws are unjust if they violate the principles just mentioned that make laws just. “The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), ‘a law that is not just, seems to be no law at all.’ Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right.”[61] The second way laws may be unjust is “through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, ‘we ought to obey God rather than man.’”[62] The “Divine law” includes the Decalogue, and so the range of laws that may be unjust in this second sense is broad indeed.

Aquinas is appropriately reticent about making changes in valid human laws, just because something seemingly better may come along, even if the change is conducive to the common good, because “to a certain extent, the mere change of law is of itself prejudicial to the common good.”[63]

In addition to the eternal, natural, and human law, there is Divine positive law, the Old Law of the Old Testament and the New Law of the New Testament. Divine positive law is necessary: first, because persons are called not just to natural ends, but to a supernatural end, for which natural and human law do not suffice, being disproportionate; second, because human judgement is uncertain, especially in regard to contingent and practical matters, and “In order, therefore, that man may know without any doubt what he ought to do and what he ought to avoid, it was necessary for man to be directed in his proper acts by a law given by God, for it is certain that such a law cannot err”; third, because human law operates on exterior acts only, requiring a law that also directs interior acts; and, fourth, because human law cannot, nor should it, forbid or punish all evil deeds.[64]

The precepts of the Old Law are part of the content of the natural law: “The precepts of the decalogue are the first principles of the Law: and the natural reason assents to them at once, as to principles that are most evident.”[65] And the distinction between the Old Law and the New Law is like the distinction between the imperfect and the perfect.[66] The Old Law ordered persons to a temporal kingdom, which was imperfect; the New Law orders persons to a supernatural kingdom, as promised by Christ, which is perfect. The precepts of the New Law thus may be more than human law can bear, given the different purposes served by each law. Aquinas draws a sharp distinction between the Divine law and human laws:

But it must be noted that the good has various degrees, as Dionysius states (Div. Nom. iv): for there is a perfect good, and an imperfect good. In things ordained to an end, there is perfect goodness when a thing is such that it is sufficient in itself to conduce to the end: while there is imperfect goodness when a thing is of some assistance in attaining the end, but is not sufficient for the realization thereof. Thus a medicine is perfectly good, if it gives health to a man; but it is imperfect, if it helps to cure him, without being able to bring him back to health. Again it must be observed that the end of human law is different from the end of Divine law. For the end of human law is the temporal tranquillity of the state, which end law effects by directing external actions, as regards those evils which might disturb the peaceful condition of the state. On the other hand, the end of the Divine law is to bring man to that end which is everlasting happiness; which end is hindered by any sin, not only of external, but also of internal action. Consequently that which suffices for the perfection of human law, viz. the prohibition and punishment of sin, does not suffice for the perfection of the Divine law: but it is requisite that it should make man altogether fit to partake of everlasting happiness. Now this cannot be done save by the grace of the Holy Ghost, whereby “charity” which fulfilleth the law . . . “is spread abroad in our hearts” (Romans 5:5): since “the grace of God is life everlasting” (Romans 6:23). But the Old Law could not confer this grace, for this was reserved to Christ; because, as it is written (John 1:17), the law was given “by Moses, grace and truth came by Jesus Christ.” Consequently the Old Law was good indeed, but imperfect, according to Hebrews 7:19: “The law brought nothing to perfection.”[67]

I have dwelt on Aquinas because, as Smith said, Aquinas best represents what Smith called the “traditional” or “classical” account of law, the account from which, as Smith will go on to claim, modern accounts of law “diverge[] sharply.”[68] Moreover, Aquinas makes the strongest case for the existence of “the law,” while also placing it within the context that includes human positive laws. Finally, Aquinas’s account is the most detailed and nuanced account of law that we, even we moderns, have, taking into account, as it does, all of the complexities, some subtle and some not so subtle, of the issues raised by the existence of “the law” alongside laws. Aquinas situates human law in the broadest possible context of law, in which questions such as “Does ‘the law’ exist?,” or “Does the law depend on, or presuppose, ‘the law’?,” do not involve us in quandaries, but provide answers, answers that illuminate the nature of both law and “the law.”

We will find echoes of Aquinas’s account of “the law” in our considerations of archaic law, and “the law” as differentiated in revelation and philosophy, to which subjects we now turn.

Further Excursus: Archaic Man and “The Law” in Cosmological Civilizations

We noted that even as Blackstone, Story, Fortescue, Coke, and Hale were heirs to Aquinas, Aquinas himself was heir to a “legal tradition” culminating in Aquinas that stretched all the way back in human history. Aquinas rooted “the law,” and so law generally, in the eternal law. If we go as far back in human history as we can go, it appears that “the law” was always rooted in the divine.

In Rémi Brague’s The Law of God: The Philosophical History of an Idea, he studies what he calls “the idea of divine law,” the

. . . idea [that] supposes that human actions are guided by norms received from the divine. . . .

. . .

I have chosen as a unifying thread the notion of “divine law,” because the idea—or in any event, the expression—can be found in the three worlds, Jewish, Christian, and Muslim, that I will need to investigate in order to grasp the choices, basic and successive, that each civilization made. Divine law, in fact, reveals what Judaism, Islam, and Christianity think and know about themselves.[69]

Moreover, he cites his earlier work, The Wisdom of the World, as having “. . . studied how human action had been conceived of as being in phase with cosmological realities that were presumed to furnish humankind with a model, a metaphor, or at least a guarantee, of right conduct. The present book examines how human practice was understood as dependent on laws and rules of a theological nature. Both works show how that human practice broke away from the two domains, cosmological and theological, with which it had been associated.”[70]

So Brague posits for law a “cosmological domain,” followed by the “theological domain” of the three great monotheistic religions. Our immediate concern is with the former which, however, is still concerned with the divine.

The “cosmological domain” appears to be the first “domain” to emerge in human history. It was the domain of “myth,” which had to give way when philosophy was discovered. It has been studied by many thinkers in addition to Brague, most notably, perhaps, by Mircea Eliade. For the archaic person of cosmological civilizations, law was part of the divine cosmic order of which persons were also a part and in which they participated. Aquinas would express the same thought centuries later in philosophical and theological language.  In Cosmos and History: The Myth of the Eternal Return, Eliade said:

It would be tedious, as well as purposeless, for this essay to mention the mythical prototypes of all human activities. The fact that human justice, for example, which is founded upon the idea of “law,” has a celestial and transcendent model in the cosmic norms (tao, artha, ṛta, tzedek, themis, etc.) is too well known for us to insists upon it. . . .

We must add that, for the traditional societies, all the important acts of life were revealed ab origine by gods or heroes. Men only repeat these exemplary and paradigmatic gestures ad infinitum.[71]

Later in the same work, Eliade again specifically refers to the place of “the law” in archaic societies, and its roots in divinity:

What does living mean for a man who belongs to a traditional culture? Above all, it means living in accordance with extrahuman models, in conformity with archetypes. Hence it means living at the heart of the real since—as Chapter I sufficiently emphasized—there is nothing truly real except the archetypes. Living in conformity with the archetypes amounted to respecting the “law,” since the law was only a primoradial hierophany, the revelation in illo tempore of the norms of existence, a disclosure by a divinity or a mystical being.[72]

Cosmological civilization had a “negative approach,” if we may call it that, to what we know as “history, regarded as a succession of events that are irreversible, unforeseeable, possessed of autonomous value. [Archaic man] refused to accept it and to grant it value as such, as history.”[73] “[T]rough the repetition of paradigmatic gestures and by means of periodic ceremonies,” archaic man annulled time, living in accordance with the cosmic rhythms.[74] Of course the “cosmological domain” was eventually succeeded by the “historical domain,” what Brague called the “theological domain,” the “domain” in which we still live, albeit in its secularized form, and Eliade notes that the beginning of “history” in Judaism was a function of an “historical event,” namely, God giving “the Law” to Moses:

The situation is altogether different in the case of the monotheistic revelation. This takes place in time, in historical duration: Moses receives the Law at a certain place and at a certain date. Of course, here too archetypes are involved, in the sense that these events, raised to the rank of examples, will be repeated; but they will not be repeated until the times are accomplished, that is, in a new illud tempus. For example, as Isaiah (11:15-16) prophecies, the miraculous passages of the Red Sea and the Jordan will be repeated “in the day.” Nevertheless, the moment of the revelation made to Moses by God remains a limited moment, definitely situated in time. And, since it also represents a theophany, it thus acquires a new dimension: it becomes precious inasmuch as it is no longer reversible, as it is historical event.[75]

Henri Frankfort noted that in the ancient cosmological civilization of Egypt, “Pharaoh symbolized the community in its temporal and transcendent aspects, and, for the Egyptians, civilized life gravitated around the divine king.”[76] Frankfort continued: “Our discussion of the rise of the monarchical society of Egypt must now be complemented by a concrete description. The administration of the country functioned on the strength of delegated royal power. Pharaoh was the living fount of law, governing by decrees which were formulated as inspired decisions.”[77]

References, too numerous to mention here, to law as emanating from a divine source may also be found in another work to which Henri Frankfort contributed, The Intellectual Adventure of Ancient Man: An Essay on Speculative Thought in the Ancient Near East.[78]

The work of scholars such as Eliade and Frankfort was important to Eric Voegelin. In Voegelin’s work on law that is a subject of this Paper, he referred to “The Law as the Substance of Order,” with specific reference to the term, “the law”:

The phenomena just introduced do not merely raise one or two further questions but open up a whole field of inquiry. Only one problem, however, will be singled out for present examination: the equivocal use of “the law” in the sense of valid rules made by organs of government and “the law” that somehow pervades the existence of man in society. What is preserved in this pale equivocation of our everyday language is the profound insight, rarely to be found in contemporary legal theory, that “the law” is the substance of order in all realms of being. As  matter of fact, the ancient civilizations usually have in their languages a term that signifies the ordering substance pervading the hierarchy of being, from God, through the world and society, to every single man. Such terms are the Egyptian maat, the Chinese tao, the Greek nomos, and the Latin lex [ius?]. The Egyptian maat, for instance, signifies the order of the gods who, by virtue of their maat, create the order of the cosmos. Within this cosmic order, the term then applies specifically to the order of the realm of Egypt, which order is created by virtue of the divine maat that lives in the Pharaoh. From the Pharaoh that maat streams through the social body, mediated by the royal administration and the hierarchy of officers, down to the judge who decides the individual case. Since the mediation of maat requires its understanding and intelligent articulation, the term acquires the meaning of “truth” about order; and since the knowledge of that truth is not a monopoly of the administration, the law as administered can be measured by the common knowledge about the truth of order, and the subjects can protest vehemently against deviations from the maat and criticize the conduct of officials.

The Egyptian usage will illuminate the problem at hand, for the compact symbolism of the maat shows that behind the equivocations of our everyday language lies the experience of a substance that pervades the order of being, of which the order of society is a part.  As far as the order of society is concerned, the substance pervades the whole of it, including that part which today we differentiate as the lawmaking process. The law is something that is essentially inherent in society, though the manner of this inherence is complicated by the fact that it must be secured,  as we shall say cautiously, by organized human action, the type of action of which we speak as the lawmaking process.[79]

We have included this long quotation from Voegelin on law because it deals with the subject of archaic law, and fits so well with our general theme. It also suggests the extent to which Voegelin was able to carry the subject beyond Smith. Specifically, Voegelin pointed not to “ontological inventories,” as Smith does, but to the experiences of order and disorder around which the law is formed. And we can trace these experiences and the symbols they engender from the maat of Egypt, and the similar symbols of ancient cosmological civilizations to which Voegelin refers, down through history even to the present.

Further Excursus: “The Law” As Differentiated in Revelation and Philosophy

We again recall that even as Blackstone, Story, Fortescue, Coke, and Hale were heirs to Aquinas on law, Aquinas himself was heir to a “legal tradition” that long preceded him. Following the civilizations of the cosmological myths, we encounter revelation and philosophy, and innumerable theologians and philosophers who paid significant attention to law, some of the most prominent among whom were, in reverse chronological order from the time of Aquinas, Richard Hooker, St. Augustine, Cicero, Aristotle, Plato, the Sophocles of Antigone, and Heraclitus. And of course the Bible itself contributes perhaps most significantly to this “legal tradition.” All of these thinkers and texts rooted “the law” in something like Aquinas’s eternal and natural law, the law furnishing the standard by which human positive law was to be measured.

Taking revelation first, we note the extraordinary “debate” between Abraham and God as to the justice of the punishment to be meted out to the cities of Sodom and Gomorrah (Genesis 18:16-33). God, “seeing that Abraham shall become a great and might nation, and all the nations of the earth shall bless themselves by him” (Genesis 18:18), took Abraham into his counsel. The scene suggests man’s participation in the eternal law in the most direct sense. Then from the time of Moses, the Old Testament is suffused with references to Divine law, not just the Decalogue. We might also cite from the Old Testament the examples of the Hebrew midwives and Pharaoh’s daughter (Exodus 1:6-22 and 2:5-10); King David, Bathsheba, Uriah, Nathan, and the poor man with one little ewe lamb (2 Samuel 11:26-12:7.); and King Ahab, Jezebel, and Naboth’s Vineyard (1 Kings 21). Numerous passages could also be cited from the Psalms and the Prophets. In the New Testament, there is the passage from St. Paul often cited in discussions of “natural law”: “When Gentiles who have not the law do by nature what the law requires, they are a law to themselves, even though they do not have the law. They show that what the law requires is written on their hearts, while their conscience also bears witness and their conflicting thoughts accuse or perhaps excuse them.” (Romans 2:14-15.)

Turning to philosophy, we find the following in the Presocratic philosopher Heraclitus: “Those who speak with sense [nous] must rely on which is common [logos] to all, as a city must rely on its law [nomos], and with much greater reliance. For all the laws of men are nourished by one law, the divine law; for it has as much power as it wishes and is sufficient for all and is still left over.”[80] Later, in Sophocles’s play, we find Antigone insisting on burying her dead brother notwithstanding the positive law decreed by Creon, with its sanction of death. Antigone answers Creon’s question, “And you had the boldness to transgress that law?,” directly, invoking a “higher law”: “Yes, for it was not Zeus made such a law; such is not the Justice of the gods. Nor did I think that your decrees had so much force, that a mortal could override the unwritten and unchanging statutes of heaven. For their authority is not of today nor yesterday, but from all time, and no man knows when they were first put forth. Not through dread of any human power could I answer to the gods for breaking these.”[81] Then in the dialogues of Plato, we find Socrates confronting the sophists, the positivists of his day, with insights gained through the practice of philia sophia, the love of wisdom.[82] Following Plato, his student, Aristotle, in his Nicomachean Ethics, distinguishes natural right or justice from the justice embodied in positive law.[83] And in the Rhetoric, Aristotle says: “Universal law is the law of Nature. For there really is, as every one to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other. It is this that Sophocles’ Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition: she means that it was just by nature.”[84] After Aristotle, Cicero, St. Augustine, and Richard Hooker were exponents, in their own ways, of the natural law, as were many other thinkers.

We have already dealt with what Smith himself recognized as the apex of classical legal thought, that of Aquinas.

Of course, apropos of all things human, the magnificent Thomistic “synthesis” began to come apart shortly after it was put together. For example, Siger of Brabant was a contemporary of Aquinas, and William of Occam was born shortly after Thomas died.[85] The “unraveling” continues into our own day.

But not—not ever—completely and finally. “The Classical Response” referred to by Smith to the question of whether “the law” exists, while to a certain extent eclipsed, as Smith claims, by modernity, still survives, perhaps to a greater extent than Smith acknowledges, and still supports the proposition that “the law,” in the sense of that against which law itself is measured, exists.

To take only a few examples, we might cite to the American Declaration of Independence. In declaring their independence from England, the American colonists, who were under “law,” namely, British positive law, appealed, in effect, to “the law” for justification, referring to it as “the Laws of Nature and of Nature’s God,” and citing, in a long list, the positive laws enacted by King George III which violated “the law” and impelled the colonists to rebel.

No one reading Charles Dickens’s Bleak House can come away with anything but the sense that the legal substance and procedure surrounding Jarndyce v. Jarndyce can only belong to Law 1, and that there must be Law 2.

Harry Jaffa has instructed us as to how the positions taken by Abraham Lincoln and Steven Douglas in their famous debates on the issue of whether slavery should be permitted in the federal territories mirrored the positions taken by Socrates, on the one hand, and Thrasymachus, on the other, in Plato’s Republic, on the more general issue of right.[86] In the debates, Douglas took the position that the question of slavery in the territories should be determined by the majority vote of the people of each territory, a position he referred to as “popular sovereignty.” “Popular sovereignty,” majority rule, was, as Jaffa, pointed out, no more than “the right of the stronger” to rule, the “right” for which Thrasymachus had argued in the Republic and Callicles in the Gorgias. Lincoln, in sharpest contrast, invoked the Declaration of Independence and the principle of natural right to argue that slavery is wrong at all times and in all places, and so was not a fit subject for majority rule or enactment into the positive law of the territories. Slavery was, Lincoln maintained, absolutely wrong. Lincoln spoke for “the law.”

Lincoln had a way of clarifying an important issue so that the right and wrong of it were clearly revealed, an art our politicians have lost, which he demonstrated at the 6th Debate in Quincy, Illinois, on October 13, 1858, insisting that Douglas could not logically say that he did not care if slavery was voted up or down in the territories if he thought slavery was wrong, because no one has a right to do wrong. Lincoln continued:

Let us understand this. I am not, just here, trying to prove that we are right and they are wrong. I have been stating where we and they stand, and trying to show what is the real difference between us; and I now say that whenever we can get the question distinctly stated—can get all these men who believe that slavery is in some of these respects wrong, to stand and act with us in treating it as a wrong—then, and not till then, I think we will in some way come to an end of this slavery agitation.

The Nuremberg Trials are an example of positive law constructed out of nothing more than “the law.” The injustices committed by the Nazi regime and individual Nazi members were clearly recognized by the Allies, who, pursuant to the “London Agreement of August 8th 1945,” established an International Military Tribunal (“IMT”) for the just and prompt trial and punishment of the major war criminals of the European Axis. The IMT adopted its own “Charter,” and conducted what came to be called the “Nuremberg Trials.” Since these were criminal trials, the Allies and the IMT had to initially face the questions of: Exactly which laws had the Nazis broken? Exactly what crimes had they committed? The Allies determined that the trials would not be conducted on the basis that the defendants had violated the positive criminal laws of any particular country, including their own. Rather, in effect, “higher law” was invoked and incorporated into the August 8 Agreement and the IMT Charter.

Articles 1 and 2 of the Agreement provided:

Article 1.

There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of the organizations or groups or in both capacities.

Article 2.

The constitution, jurisdiction and functions of the International Military Tribunal shall be those set in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement.

Section II, Article 6 of the Charter then, in very broad terms and in only a few lines, defined the three crimes for which the defendants would be prosecuted as “Crimes Against Peace,” “War Crimes,” and “Crimes Against Humanity.” The four Counts in the Indictment were based on crimes as so defined. Article 26 of the Charter provided that “The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review,” and Article 27 provided that “The Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just.”

The Nuremberg Trials were not without controversy. Some, even, or especially, among the Allies, criticized them severely as, inter alia, based on ex post facto laws. In any event, the significance of the Nuremberg Trials for our purposes is that they demonstrate that divergent nations can, even in the absence of positive law as a guide, recognize manifest and great injustices, and then summon the will to try and punish the malefactors. The signatory nations to the Agreement of August 8th in effect adopted a “higher law,” that is, a law higher than any positive law, on which positive law itself is grounded, based on principles that stand above any legislation enacted by man, to confront a unique situation. In short, in the face of the greatest of injustices, the nations of the world that had fought and overcome the Nazis in effect recognized natural right or natural justice and adopted natural law, without necessarily using those terms to describe what they had done. They turned “the law” directly into positive law.

Our next example is again an American one, the invocation by Dr. Martin Luther King of a “higher law,” of the “natural law,” in his “Letter From Birmingham Jail” of April 16, 1963, written in response to a statement from fellow clergymen calling his activities “unwise and untimely.” The Letter demonstrates that Dr. King was deeply schooled in the great moral and political tradition of the West of which we have been speaking, and that he realized that the United States, for all its shortcomings, was founded in that tradition. Specifically, in opposing the injustices of segregation written into American positive law, and to justify his actions in disobeying those laws, Dr. King, who apparently wrote the letter without benefit of a library for purposes of his references, cited the work of “the prophets of the eighth century B.C.,” Socrates, St. Paul, Martin Buber, Paul Tillich, and the Supreme Court’s 1954 decision in Brown v. Board of Education.

A principal point of Dr. King’s letter was to remind his critics of the “natural law” and its use in the justification of violations of positive laws and customs. Dr. King noted the distinction between just positive laws, calling for obedience, and unjust positive laws, which might require disobedience, such as the disobedience Dr. King was enacting. “I would agree with St. Augustine,” he said, “that ‘an unjust law is no law at all.’” And he invoked St. Thomas Aquinas on how to determine whether a law is just or unjust:

A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.

Dr. King went on to give other concrete examples of just and unjust laws, and then continued:

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.

Much else could be cited from this letter. Toward its end, Dr. King said: “One day the South will know that when these disinherited children of God sat down at lunch counters, they were in reality standing up for what is best in the American dream and for the most sacred values in our Judeo-Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence.”

References to “the law” appear in the work of C. S. Lewis. We may consider him a modern Thomas, with the difference that whereas Aquinas begins with God and derives law, Lewis begins with law and derives God. His first Chapters in Mere Christianity, the ultimate purpose of which is theological, include the titles “The Law of Human Nature,” “The Reality of the Law,” and “What Lies Behind the Law.”[87] Lewis begins by noting that “Every one has heard people quarreling,”[88] and he proceeds to draw certain conclusions from the fact that people quarrel:

Now what interests me about all these remarks is that the man who makes them is not merely saying that the other man’s behaviour does not happen to please him. He is appealing to some kind of standard of behaviour which he expects the other man to know about. And the other man very seldom replies: “To hell with your standard.” Nearly always he tries to make out that what he has been doing does not really go against the standard, or that if it does there is some special excuse. . . . It looks, in fact, very much as if both parties had in mind some kind of Law or Rule of fair play or decent behaviour or morality or whatever you like to call it, about which they really agreed. And they have. If they had not, they might, of course, fight like animals, but they could not quarrel in the human sense of the word. Quarrelling means trying to show that the other man is in the wrong. And there would be no sense in trying to do that unless you and he had some sort of agreement as to what Right and Wrong are; just as there would be no sense in saying that a footballer had committed a foul unless there was some agreement about the rules of football.

Now this Law or Rule about Right and Wrong used to be called the Law of Nature. Nowadays, when we talk of the “laws of nature” we usually mean things like gravitation, or heredity, or the laws of chemistry. But when the older thinkers called the Law of Right and Wrong “the Law of Nature,” they really meant the Law of Human Nature. The idea was that, just as all bodies are governed by the law of gravitation, and organisms by biological laws, so the creature called man also had his law—with this great difference, that a body could not choose whether it obeyed the law of gravitation or not, but a man could choose either to obey the Law of Human Nature or to disobey it.

. . .

This law was called the Law of Nature because people thought that every one knew it by nature and did not need to be taught it. They did not mean, of course, that you might not find an odd individual here and there who did not know it, just as you find a few people who are colour-blind or have no ear for a tune. But taking the race as a whole, they thought that the human idea of decent behaviour was obvious to every one. And I believe they were right. If they were not, then all the things we said about the war were nonsense. What was the sense in saying the enemy were in the wrong unless Right is a real thing which the Nazis at bottom knew as well as we did and ought to have practised? If they had had no notion of what we mean by right, then, though we might still have had to fight them, we could no more have blamed them for that than for the colour of their hair.

I know that some people say the idea of a Law of Nature or decent behaviour known to all men is unsound, because different civilisations and different ages have had quite different moralities.

But this is not true. There have been differences between their moralities, but these have never amounted to anything like a total difference. If anyone will take the trouble to compare the moral teaching of, say, the ancient Egyptians, Babylonians, Hindus, Chinese, Greeks and Romans, what will really strike him will be how very like they are to each other and to our own. Some of the evidence for this I have put together in the appendix of another book called The Abolition of Man; but for our present purpose I need only ask the reader to think what a totally different morality would mean. Think of a country where people were admired for running away in battle, or where a man felt proud of double-crossing all the people who had been kindest to him. You might just as well try to imagine a country where two and two made five.[89]

Lewis puts the lie to those who claim there is no such thing as “the law.” He says that “the most remarkable thing is [that] [w]henever you find a man who says he does not believe in a real Right and Wrong, you will find the same man going back on this a moment later,” when it is his ox that has been gored.[90]

After making the point that there is a real “Law of Nature,” Lewis makes his second point, which is that none of us keeps it. We all fall short in one way or another. And our failures make us anxious:

If we do not believe in decent behaviour, why should we be so anxious to make excuses for not having behaved decently? The truth is, we believe in decency so much—we feel the Rule or Law pressing on us so— that we cannot bear to face the fact that we are breaking it, and consequently we try to shift the responsibility. For you notice that it is only for our bad behaviour that we find all these explanations. It is only our bad temper that we put down to being tired or worried or hungry; we put our good temper down to ourselves.

These, then, are the two points I wanted to make. First, that human beings, all over the earth, have this curious idea that they ought to behave in a certain way, and cannot really get rid of it. Secondly, that they do not in fact behave in that way. They know the Law of Nature; they break it. These two facts are the foundation of all clear thinking about ourselves and the universe we live in.[91]

The Law of Human Nature, Lewis goes on to say, as distinct from the “laws” that apply to physical nature, involves an “ought,” a “tension” Voegelin would say, that which takes us from what we do in fact do to what we should do. This is the origin of our language of praise and blame, which invokes something beyond mere matters of pleasure, convenience, profit, or utility:

Consequently, this Rule of Right and Wrong, or Law of Human Nature, or whatever you call it, must somehow or other be a real thing— a thing that is really there, not made up by ourselves. And yet it is not a fact in the ordinary sense, in the same way as our actual behaviour is a fact. It begins to look as if we shall have to admit that there is more than one kind of reality; that, in this particular case, there is something above and beyond the ordinary facts of men’s behaviour, and yet quite definitely real—a real law, which none of as made, but which we find pressing on us.[92]

From what Lewis has said about ”the law,” he goes on “to consider what this tells us about the universe we live in.”[93] He compares what he calls, roughly speaking, the two views about “what this universe really is and how it came to be there,” the “materialist” and the “religious.”[94] “According to [the religious view],” he says, “what is behind the universe is more like a mind than it is like anything else we know. That is to say, it is conscious, and has purposes, and prefers one thing to another. And on this view it made the universe, partly for purposes we do not know, but partly, at any rate, in order to produce creatures like itself—I mean, like itself to the extent of having minds.”[95] Science itself cannot tell us which view is correct. How then can we have any answers to the most fundamental questions that everyone asks? There is, says Lewis, a way:

Now the position would be quite hopeless but for this. There is one thing, and only one, in the whole universe which we know more about than we could learn from external observation. That one thing is Man. We do not merely observe men, we are men. In this case we have, so to speak, inside information; we are in the know. And because of that, we know that men find themselves under a moral law, which they did not make, and cannot quite forget even when they try, and which they know they ought to obey. . . .

The position of the question, then, is like this. We want to know whether the universe simply happens to be what it is for no reason or whether there is a power behind it that makes it what it is. Since that power, if it exists, would be not one of the observed facts but a reality which makes them, no mere observation of the facts can find it. There is only one case in which we can know whether there is anything more, namely our own case. And in that one case we find there is. Or put it the other way round. If there was a controlling power outside the universe, it could not show itself to us as one of the facts inside the universe— no more than the architect of a house could actually be a wall or staircase or fireplace in that house. The only way in which we could expect it to show itself would be inside ourselves as an influence or a command trying to get us to behave in a certain way. And that is just what we do find inside ourselves. . . . When I [look inside] Myself], I find that I do not exist on my own, that I am under a law; that somebody or something wants me to behave in a certain way . . . a Power behind the facts, a Director, a Guide.[96]

Another book in which Lewis deals with “the law” is the one mentioned in the quotation from Lewis above, The Abolition of Man.[97] There Lewis maintains that one of the principal purposes of education, eclipsed in modernity, is to teach students to have reactions to things appropriate to what the things really are. He begins by referring to a story of two tourists at a waterfall at which the poet Coleridge was also present. One tourist called the waterfall “sublime” and the other called it “pretty.” “Coleridge,” says Lewis, “mentally endorsed the first judgment and rejected the second with disgust.”[98] An elementary English text book, referring to this story, instructed its readers that in making this statement, the man who said the waterfall was “sublime” was not making a statement about the waterfall, but only about his own feelings. Lewis is incensed at this because the pupils reading the text book can only come away with the sense, perhaps unconscious at first, “that all values are subjective and trivial.”[99] They are led away from developing the appropriate emotional responses to objective reality. All that counts will be their “feelings.”

“Until quite modern times,” says Lewis, “all teachers and even all men believed the universe to be such that certain emotional reactions on our part could be either congruous or incongruous to it — believed, in fact, that objects did not merely receive, but could merit, our approval or disapproval, our reverence or our contempt.”[100] Coleridge at the waterfall provided one example of this. Lewis refers to other examples in the works of St. Augustine, Aristotle, and Plato. He refers to “early Hinduism” in which that conduct in men which can be called good consists in conformity to, or almost participation in, the Rta—that great ritual or pattern of nature and supernature which is revealed alike in the cosmic order, the moral virtues, and the ceremonial of the temple. Righteousness, correctness, order, the Rta, is constantly identified with satya or truth, correspondence to reality. As Plato said that the Good was “beyond existence” and Wordsworth that through virtue the stars were strong, so the Indian masters say that the gods themselves are born of the Rta and obey it.[101]

In Eliade’s work quoted above, he referred to “the cosmic norms (tao, artha, ṛta, tzedek, themis, etc.).” Lewis will pick the term, “the Tao,” which he will use very much as we have used the term, “the law.” Both Eliade and Voegelin referred to the Tao in their works on cosmological civilizations quoted above. In Lewis’s first reference to the term, he says:

The Chinese also speak of a great thing (the greatest thing) called the Tao. It is the reality beyond all predicates, the abyss that was before the Creator Himself. It is Nature, it is the Way, the Road. It is the Way in which the universe goes on, the Way in which things everlastingly emerge, stilly and tranquilly, into space and time. It is also the Way which every man should tread in imitation of that cosmic and supercosmic progression, conforming all activities to that great exemplar. “In ritual”, say the Analects, “it is harmony with Nature that is prized.” The ancient Jews likewise praise the Law as being “true”.

This conception in all its forms, Platonic, Aristotelian, Stoic, Christian, and Oriental alike, I shall henceforth refer to for brevity simply as “the Tao”. Some of the accounts of it which I have quoted will seem, perhaps, to many of you merely quaint or even magical. But what is common to them all is something we cannot neglect. It is the doctrine of objective value, the belief that certain attitudes are really true, and others really false, to the kind of thing the universe is and the kind of things we are.[102]  

Later in Abolition, we find this passage:

This thing which I have called for convenience the Tao, and which others may call Natural Law or Traditional Morality or the First Principles of Practical Reason or the First Platitudes, is not one among a series of possible systems of value. It is the sole source of all value judgements. If it is rejected, all value is rejected. If any value is retained, it is retained. The effort to refute it and raise a new system of value in its place is self-contradictory. There has never been, and never will be, a radically new judgement of value in the history of the world. What purport to be new systems or (as they now call them) “ideologies”, all consist of fragments from the Tao itself, arbitrarily wrenched from their context in the whole and then swollen to madness in their isolation, yet still owing to the Tao and to it alone such validity as they possess. . . . The rebellion of new ideologies against the Tao is a rebellion of the branches against the tree: if the rebels could succeed they would find that they had destroyed themselves. The human mind has no more power of inventing a new value than of imagining a new primary colour, or, indeed, of creating a new sun and a new sky for it to move in.[103]

Lewis adds that progress in our perceptions of value can take place, but any such progress must come from within the Tao itself. “Those who understand the spirit of the Tao and who have been led by that spirit can modify it in directions which that spirit itself demands. Only they can know what those directions are. The outsider knows nothing about the matter. . . . Only those who are practicing the Tao will understand it. . . . It is Paul, the Pharisee, the man ‘perfect as touching the Law’ who learns where and how that Law was deficient.”[104] To step outside the Tao, Lewis later says, is to step into the void.[105] And, “Only the Tao provides a common human law of action which can over-arch rulers and ruled alike.”[106]

The Appendix to The Abolition of Man is entitled “Illustrations of the Tao.” Lewis also refers to them as “illustrations of the Natural Law.”[107] They consist of a large number of what Lewis calls “laws” collected from a variety of civilizations and historical times. What they illustrate is that fundamental morals and laws do not vary from people to people or from time to time, but are civilizational constants. These universal norms are listed under “1. The Law of General Beneficence,” “2. The Law of Special Beneficence,” “3. Duties to Parents, Elders, Ancestors,” “4. Duties to Children and Posterity,” “5. The Law of Justice,” “6. The Law of Good Faith and Veracity,” “7. The Law of Mercy,” and “8. The Law of Magnanimity.”

The specifically Thomistic tradition of natural law itself has made a comeback over the course of the last several decades in the work of thinkers like Jacques Maritain, Yves Simon, Ralph McInerny, and Russell Hittinger, to name only a few. There are also the “new” “natural lawyers,” such as Germain Grisez, John Finnis, and Robert George, who have also carried St. Thomas forward, albeit in a somewhat different form. Hadley Arkes, whom we have already cited, is also a “natural lawyer,” although more of a Kantian than a Thomist. He argues that the natural law will always be with us, no matter the “climate of opinion,” because it is such a fundamental part of our nature.

Of course there is not only a proliferation of “traditional natural law” theorists in modernity, but modernity itself may be characterized by its acceptance of diverse “modern natural law” theories, such as those of Hobbes, Locke, and Rousseau, that differ substantially from the traditional concept, but which all refer in different ways, without using the term, to “the law.” We do not have time to consider them.

Our brief historical sketch indicates that there is, it seems, as Voegelin would put it, some equivalence among the symbols used to express the experiences of justice and injustice, of right and wrong, in law, symbols such as maat, tao, lex, artha, rta, tzedek, themis, “higher law,” “natural right,” “natural justice,” and “natural law.” To these symbols may be added the symbol, “the law,” as we have been using it. This equivalence suggests that Professor Arkes is right in rejecting the term “theories” to describe these symbols, which are intended to stand for significant experiences in human consciousness, and in insisting that we will always be “led back to the ground on which we have confidence in the things we can truly know about the properties of propositions, about the statements that are true or false, and finally, then, about the things that are morally right or wrong.” Or to cite the title of one of his essays, “The Natural Law—Again, Ever.”[108]

We can conclude that “the law” is an historical constant. Wherever you find persons, you find law, and wherever you find law, you find, in congruence with or in opposition to it, “the law.”

Further Excursus: “The Law” and the United States Supreme Court

To briefly consider “the law” and the United States Supreme Court, we note Professor Corwin’s book, The “Higher Law” Background of American Constitutional Law,[109] which traces the concept of the “higher law” throughout history down to the time of the American Founding, and argues that it played a prominent role in the formation of the American Constitution. .  

We do not have time to say much about “the law” and the “modern Supreme Court,” which would require, among other things, an examination of the various approaches to Constitutional interpretation advanced by scholars, Justices, and in the decisions of the Court itself. Numerous volumes and articles have been written on this subject because, in “interpreting” the Constitution, the “modern Supreme Court” has in effect made out most important laws, Article I of the Constitution notwithstanding.

To simplify, there are those who argue that the Constitution must be interpreted as any statute would be interpreted, that is, by discerning the “original intent” of the Founders. Broadly speaking, “originalists” themselves divide into “textualists,” those who consider what the words of the Constitution would have meant at the time of the Founding, and those who look beyond the text to try to discern the Founder’s “intent.” Originalism is a “conservative” approach to Constitutional interpretation. It does not seek to interpret the Constitution in light of “the law,” but only in terms of what the Constitution itself says or means. A layer of difficulty is presented even here, though, because many originalists take the position that the Constitution itself is an expression of “the law,” of the natural or higher law, and so must be interpreted in that light.

The more “liberal” interpretation of the Constitution invokes “the law,” but not as “the law” has been traditionally conceived and understood. So-called “liberal” interpreters have over the last several decades used especially this language from the Fourteenth Amendment to interpret the Constitution in ways never imagined by the Founders or by those who drafted and ratified the Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Here the fight is over the words, “due process of law.” Broadly speaking, positive law is comprised of “substance” and “process.” The two are different, although they meet at points. “Due process” basically means the right to notice and a hearing before a duly-authorized court. The Supreme Court has, however, invented a “doctrine” known as “substantive due process,” described by its critics as an oxymoron, and has used it in a variety of the Court’s most important cases to pour into the Constitution meanings not otherwise to be found there.

Thus “substantive due process,” sometimes in conjunction with the “equal protection” clause of the Fourteenth Amendment, was the or a basis for the Court’s sometimes disparate decisions in Dred Scott v. Sanford, 60 U.S. 393 (1857), denying citizenship to slaves (since the first case using “substantive due process” was this one, perhaps the “doctrine” might have been shelved completely on the basis that a court could do virtually anything with it, including handing down decisions clearly violative of the genuine natural law); Lochner v. New York, 198 U.S. 45 (1905), striking down a New York law limiting the number of hours bakers could work; Griswold v. Connecticut, 381 U.S. 479 (1965), striking down state laws banning the use of contraceptives for married couples; Eisenstadt v. Baird, 405 U.S. 438 (1972), striking down state laws banning the use of contraceptives for unmarried persons; Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973), striking down state laws prohibiting abortion; Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), upholding Roe v. Wade; Lawrence v. Texas, 539 U.S. 558 (2003), striking down state laws criminalizing sodomy; Obergefell v. Hodges, 576 U.S. 644 (2015), striking down state laws prohibiting “same-sex marriage”; and Bostock v. Clayton County, 140 S.Ct. 1731 (2020), holding that an employer violates Title VII of the Civil Rights Act of 1964, which makes it unlawful to discriminate against an individual “because of” the individual’s “sex,” by firing an individual for being homosexual or for being a transgender person.

How to reconcile these cases? Dred Scott was overruled, if not practically by the Civil War, then legally by the Thirteenth, Fourteenth, and Fifteenth Amendments. Lochner, and its doctrine of “economic” “substantive due process,” while ascendant in the early part of the twentieth century, was effectively overturned by subsequent decisions. “Substantive due process,” however, was carried over and continues to thrive in the “social” and “sexual” areas as indicated in the cases cited above.

What do we make of “substantive due process”? In some sense, it has functioned as the Court’s “higher law,” although one without traditional antecedents—its adherents certainly do not claim that in invoking “substantive due process,” they are invoking the natural law. In fact, they often claim to be doing nothing more than “interpreting” the necessary meaning of the Fourteenth Amendment, as much of a stretch as that seems.

In any event, and apart from the observation that to a lawyer who understand the difference between substantive and procedural law, “substantive due process” is certainly oxymoronic, Professor Ilan Wurman has argued convincingly that “due process of law” at the time of the ratification of the Fourteenth Amendment had a specific historical and legal meaning. The best reading of the evidence is that this meaning was that no individual could be deprived of life, liberty, or property without first having violated existing, established law and without the benefit of the critical procedures historically used for determining the violation of such laws, including the several procedures specifically mentioned by the federal Constitution. Very little in the antebellum sources supports a substantive component to due process of law.[110]

There is another version of “higher law” in Constitutional interpretation to which the modern Supreme Court has made frequent appeals, explicitly or implicitly. This is the concept of the “living Constitution.” This concept is no more “traditional” than “substantive due process.” It derives from Hegel rather than St. Thomas. Here the maat takes the form of the onrushing, always progressing tide of history, which only the adept can discern. “History” replaces “Nature” as an ordering principle; “the law” found in history is not the same as “the law” found in nature.

To take one example, in Obergefell v. Hodges, supra, Justice Kennedy found that the Constitution required the legalization of “same-sex marriage,” not on the basis of the Constitution’s text, but on the basis of his perception that history demanded that result. Justice Kennedy did not provide an analysis of the nature of the institution known as “marriage.” His only reference to “the connection between natural procreation and marriage” severed in “same-sex marriage” came in an aside.[111] The meaning of the word, more importantly the meaning of the reality the word signifies, was therefore up for grabs. Some persons said marriage should remain a union between two person of the opposite sex, as it always had been, but now some other persons had come along who thought marriage should also be between persons of the same sex. In the absence of an appeal to nature, who wins? Justice Kennedy looked to history :

These new insights [Justice Kennedy listed changes in customs having some relationship to marriage, but none of which bore on the question of its nature, claiming they demonstrated how it had “evolved” over time even in its “opposite-sex” manifestation] have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.

. . .

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

…

It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part. This was evident in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65, a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question

…

The limitation  of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. . . .

. . .

This interrelation of the two principles [the Due Process and the Equal Protection Clauses of the Fourteenth Amendment] furthers our understanding of what freedom is and must become.[112]   

Numerous other examples could be cited, in case law and the legal literature, advancing the concept of the “living Constitution,” which has been the most successful rubric by which the Court has “interpreted” the Constitution in modern times. And more nuanced versions of the theory could be cited, such as that of the non-positivist Ronald Dworkin, who, in Law’s Empire, arguably advances the idea of the “living Constitution” without ever using that term.[113]

A final word about the Supreme Court. We moderns pride ourselves on “progress.” And so we certainly want to believe that we have gotten far beyond our archaic selves. But have we? Even regarding law, we hear echoes of the Egyptian maat, the legal order streaming from on high through a human institution endowed with a sacred character, in the pronouncements of our Supreme Court.

In Casey, quoted above, the Court told us that our belief in ourselves as “a Nation of people who aspire to live according to the rule of law”—our very character as a people–is inseparable from our “understanding” that it is our Supreme Court that is “invested with the authority to decide [our] constitutional cases and speak before all others for [our] constitutional ideals.”  “If the Court’s legitimacy should be undermined,” as, for example, it would be if we had the temerity to question the validity of the Court’s abortion jurisprudence, “then, so would the country be in its very ability to see itself through its constitutional ideals.” And, the Court assured us, its “concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.” The Court is our good shepherd.

Shortly after this Pharaonic pronouncement, the Court went on to tell us that its modern jurisprudence, focused as it is on personal “autonomy,” is consistent with the very “mystery of human life” itself. In Casey’s most famous passage, the Court, referring to its earlier line of cases such as Griswold, Eisenstadt, and Roe, culminating with Casey, finding and upholding the “right of privacy,”[114] said: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”[115]

But this cannot be “the heart of liberty,” or it would sanction the actions of all of the tyrants of human history, who, after all, defined their own concepts of existence, of meaning, of the universe, and of the mystery of human life, to the great detriment of everyone else. The Court appeared to be adopting the position taken by the nihilist-sophist Callicles in Plato’s Gorgias.

And while we can agree that beliefs about the meaning of human life should never be formed “under compulsion of the State,” can we say that the “State,” in the sense of the polity to which we all belong and to which we pledge allegiance, does not have anything to do with the  formation of our characters? If the polity may not “compel” us in these matters, does it not have something to do with “persuading” us? Does it not uphold, as principles to which we should subscribe, the principles embodied in the Declaration of Independence and the Constitution? What is the purpose of our public schools? Doesn’t our law license the institutions of higher learning which carry forward the great traditions of Western civilization, ensuring that they are not lost? Isn’t the Court itself, in pronouncing on our fundamental laws, our “great teacher”? In the passage quoted above, doesn’t the Court purport to be “persuading” and “teaching? As for “compulsion,” isn’t the Court in Casey compelling us to accept that in our polity, same-sex marriage is to be given official sanction, even compelling those to whom the thought is abhorrent?

Moreover, in the “mystery of human life” passage, the Court seemed unaware that its saying tended to undermine law in whatever form law might take, whether divine or human, natural or positive, and including not just all laws, but “the law” as well. Pharaoh’s rule may have been strict, but at least he was not a nihilist.

The maat, “the law,” is always with us in one form or another. What are valid and what are invalid forms is a separate question.

Return To Law’s Quandary   

We return to Professor Smith at that point in Law’s Quandary where he has concluded his brief discussion of the “traditional” or “classical” account of law and of “the law,” and begins his discussion of “The Modern Repudiation of ‘the Law.’”[116]

Smith says that “Against the backdrop of a theistic metaphysics, [the conception that there is such a thing as “the law”] seems at least intelligible. Conversely, with the rejection of this metaphysics (an abandonment that . . . pervades at least academic culture),the classical conception becomes nonsensical, almost incomprehensible.”[117]

In light of this “incomprehensibility,” “thinkers like Holmes have needed to give a different account that is consistent with a modern ontology.”[118] So Holmes himself was led to say that “the law is nothing more than a set of predictions about what judges will do.”[119] Other modern approaches are listed by Smith, “the common element [in each of which] is the effort to eliminate something that the modern ontologies grounded in everyday experience and science no longer give us leave to affirm—‘the law’—and to account for law in terms of things we can acknowledge as real: lawyers and judges arguing and explaining and deciding. The imperative, as Felix Cohen put it, has been to ‘redefine supernatural concepts in natural terms.’”[120] But Smith has noticed something these other legal theorists have not, namely, that “in fact we have not abandoned the practices that originated in a belief in law as, to use Holmes’s derisive expression, a ‘brooding omnipresence in the sky.’”[121] Our practice and our language indicate that we still do believe in something called “the law.” “That is the predicament of modern law and legal discourse: it seems that we cannot believe in ‘the law,’ and we also cannot live without quietly harboring something like this belief.”[122] Here is the heart of “law’s quandary.” It is similar to the quandary faced by those who can no longer believe in God, but who cannot live without Him.

And so in the remainder of the Chapter, Smith goes on to consider “the powerful evidence of a persisting belief in ‘the law.’”[123] That evidence includes, first, the fact “that of course lawyers (and many nonlawyers) constantly and routinely refer to ‘the law’ as if it were some entity, or some thing that exists independently of us and possesses some more or less definite content that is somehow authoritative for us.”[124]

Second is the idea that precedents, by which layers and judges live, are not themselves “the law” but only evidence of it. It is often not clear as to just what is and is not precedential in a court’s decision. Not all judges join in a court’s opinion, and often there are concurring and even dissenting opinions. Precedents, even the “firmest” of them, may be overruled. In sorting through a thicket of precedents, a judge will often claim that he or she is not “making” law but only “finding” it. Then there is the vast literature of law review articles, many of them written to say that this or that court got “the law” all wrong. Finally there is the practice of courts citing law from other jurisdictions, suggesting that they are looking for “the law” wherever they can find it.

Third, the differences between the common law and statutory law—so much of our law today is of the latter kind—does not in any way negate the idea that “the law” exists. For example, the “due process” and “equal protection” clauses of the Fourteenth Amendment, together with so many other clauses in our written foundational law, suggest something lying behind them. “Whether we are interested in common law precedents or statutes, judicial and other interpreters are always looking behind and beyond the written words to something that is not fully contained in or exhausted by those words, and that gives those words both their authority and their meaning.”[125]

Fourth, there is what Smith calls “The Remarkable Fact of Retroactivity,” which may be the most telling argument for the existence of “the law.”[126] This is

the common judicial practice of treating decisions—including, it is important to note, both common law decisions and decisions interpreting statutes—as retroactively applicable even to events occurring before the decisions were rendered. . . .

This practice is usually followed even in so-called cases of first impression and—most strikingly—even when a decision explicitly overrules a prior decision. The new decision is said merely to declare “the law” that obligated parties all along—even though a previous judicial opinion mistakenly declared otherwise….

This practice of retroactive application, along with the “declaratory theory” of law that supports it, fits nicely with the classical assumption that “the law” exists independent of our particular interpretations of it. Indeed, within that framework, it is hardly apt to talk of retroactive application at all: if “the law” was already there, then it is not being retroactively applied. Conversely, the practice and theory fit awkwardly at best with modern conceptions that deny the existence of any such law.[127]

All practicing lawyers know the “bite” of retroactivity. A client comes in with a case. You thoroughly familiarize yourself with the facts and the law and tell him or her it will come out a certain way. The judge brings it out the other way. It is not easy to explain such things to clients, and even more difficult to collect your fee from them.  

In his next Chapter, Chapter 4, entitled “The Jurisprudence of Modernity,” Smith examines modern jurisprudential “movements” “At the heart of [which] has been the concern to address a central, ongoing challenge: the challenge of explaining how the law makes sense without ‘the law.’”[128] Smith lists these “movements” in roughly chronological order as follows: “sociological jurisprudence, Legal Realism, legal process, law and policy (especially including law and economics), law and society, law and philosophy, Critical Legal Studies, law and literature, feminist jurisprudence, Critical Race Theory, and Legal Pragmatism.”[129] Phew!

Smith says that these theories follow two main lines, which he calls the “autonomy” strategy, and the “law and” strategy. The first maintains that the observable legal enterprise is sufficient onto itself and does not need or evidence anything called “the law.” The second admits that law requires a “supplement” of some sort, and so substitutes something else for “the law,” such as economics, policy, science, philosophy, etc.

We do not have time to consider these theories, and Smith’s responses to them. We jump to his conclusion, which he states at the beginning of the Chapter: “So, can either of these strategies succeed in showing how the law makes sense without ‘the law’? I will argue in this chapter that they cannot.”[130] And so he does, in considerable, and convincing, detail.

In Part III of Law’s Quandary, Smith turns from the question, Does “the law” exist?,  to the question, How does law mean? The questions are related, and Smith says that the second question “will eventually lead us around to approximately the same underlying issues that we have already been considering. But we will arrive at those issues through more familiar territory.”[131] That territory includes the issues of interpretation we mentioned earlier in connection with the jurisprudence of the Supreme Court, and so we see Smith making his way through theories like originalism, textualism, and intentionalism, and otherwise dealing with issues raised by the relationship of law and language. In Chapter 5 he concludes that “the meaning of a legal text is equivalent to the semantic intentions of an author.”[132] In Chapter 6 he goes in search of qualified authors whose semantic intentions can give the meaning of a legal text–an author, perhaps, attuned to “the law.” His search among “the usual candidates” fails,[133] and he is led back to a consideration of the “classical account” of law for the first time since his earlier brief consideration of it. “Would the classical account of law,” he asks, “briefly presented in Chapter 3, be more successful in addressing these problems?”[134]

With his usual nod to “the climate of opinion,” Smith says: “We are by now far removed, of course, from times in which such an account could be presented openly and discussed respectfully. For many of us, the classical account is a distant memory; for others it is not even that. So perhaps all we can confidently say is that the classical account, if it were admissible and believable, might be of some help.”[135]

In reading Law’s Quandary, and given Smith’s very practical, if not deeply philosophical, defense of the proposition that “the law” exists, especially given his acknowledgment that this view is almost completely rejected, if not laughed to scorn, in the modern academy where Smith earns his living, one is sometimes tempted to believe that statements such as the above are intended to be ironic. But here at least Smith seems serious. Taking this statement at face value, it reveals the self-imposed limits to Smith’s approach to the important question that he raises and does so much to otherwise clarify. Smith, it turns out, is an historicist. The “times” determine what we can believe. Why, after all, can’t Smith “believe” in “the classical account,” an account which, after all, many moderns do believe in, and which Smith himself has advanced as shedding the most light on the issues he raises? When we consider Voegelin on law, below, we will see what modernity is missing.

In any event, in his consideration of whether the classical account provides Smith with the author(s) he is looking for, Smith notes that the classical thinkers “posited a sort of dual authorship for law. Law’s ultimate author was God, whose providential plan for the cosmos constituted what Aquinas described as an ‘eternal law,’ and all law—human and divine—derived its legal character from that law.”[136] Notwithstanding that the eternal law, mediated through the natural law, provides little specific content for the positive law that it is left for humans to create, human positive law is “connected to a higher or deeper source of meaning through its underlying, divine authorship. So the partnership between law’s dual authors just might provide both the clarity given by normal speakers—clarity needed for law’s coordination function—and the deeper wisdom provided by a greater-than-human author that might justify deference to law in resolving our most important and difficult issues.”[137]

Smith considers the “many assumptions here,” all involving questions as to the existence and nature of “a transcendent author” and the relationship of such an author to human beings.[138] For many today, says Smith, these assumptions are simply not believable. Despite the doubts about or the outright rejection of these kinds of assumptions, Smith notes that

Still, there is an uncanny resemblance between the classical account and the jurisprudence of, say, Ronald Dworkin. In Dworkin’s account . . . law is likewise conceived to be the product of a “single author” whose legal outpourings form a single “coherent set of principles.” These principles are just and fair, justifying the use of force in their implementation. So it seems that the classical account, though long discarded, echoes still in modern jurisprudential thought.[139]

We are delighted with this. One of the principal purposes of this Paper has been to show that the classical account will necessarily echo in any jurisprudential thought worthy of consideration. We can only disagree with the statement that the classical account has been “long discarded.” As Hadley Arkes put it, “The Natural Law-Again, Ever.”

Smith, however, chooses to end this Part of Law’s Quandary not with the statement above, but with the statement below:

In short, we face a dilemma. The authorial candidates who are actually available seem grossly underqualified to perform the weightiest functions we ask law to perform. We can fantasize an author who would be qualified to perform these functions but, alas, that kind of author does not seem to be available. This is (or at least it is one way of describing) law’s quandary.[140]

With the death of God, law has lost its author.

The final Part of Law’s Quandary, Part IV, is entitled “Mind the Gap,” by which Smith means the “ontological gap” about which he has been speaking caused by the eclipse of the classical account. Given that eclipse, what are we to make of the situation we find ourselves in in which we continue to discuss “the law” as something real, and indeed as something even more real than positive laws?

Chapter 7, ”Law in a Quandary,” addresses these questions. “[H]ow,” asks Smith,

should we understand the peculiar persistence of conventional law-talk, and of the ontological gap in law that has appeared over and over in these pages? This chapter considers four different (though not mutually exclusive) interpretations of our predicament. Any or all of them may contain a measure of truth; taken together, those measures of truth might add up to a satisfactory account of our situation.

Or perhaps not.[141]

The “interpretations” consider a number of questions. Is our talk about “the law” simply a hold-over from a much earlier time in which the metaphysics of the time supported such talk? Smith says that is very unlikely, given how tenacious such talk has always been and continues to be, and how such talk is even expanding with the ever expanding reach of our law. Is “the law” a secular substitute for religion? Is talk about “the law” a form of “bad faith”? Is “the law” a Platonic form? Can Joseph Vining help us? As it turns out, none of the “interpretations” resolve the predicament. Law’s quandary remains. Smith considers making a “leap of faith,” but rejects that alternative. So, he asks, plaintively, “what are the alternatives? . . . In our current predicament, living in the gap, what should we do? What can we do?”[142] It is the poignant question so often asked by those who sense that there is more to reality than our deracinated metaphysics allows, but who cannot reach that something more, trapped as they are by that metaphysics.

In his “Epilogue,” entitled “Confusion and Confession,” Smith is at least assuaged by the recognition that “the law” is not the only mysterious thing, and that law professors are not alone in trying to explain how what they study, the positive law, is grounded in something they cannot, or have forgotten how to, explain. He turns to the ontological category of “the person,” and notes that in the philosophy of personalism, the concept of “the person” functions much as the concept of “the law” does in jurisprudence:

[I]n everyday experience we treat persons as a discrete part of reality; and hence we take at face value, so to speak, personal qualities such as mind, belief, intention, and choice. References to such qualities are ubiquitous in our daily conversations, and in our legal discourse as well. Yet they all seem problematic from the ontological perspective of science, which is determined to reduce such entities to, as John Searle put it, particles and force fields. But few of us are prepared either to surrender persons and their distinctive properties to science or to sacrifice science for the sake of persons The result is an ontological gap that looms over a good deal of the humanities and social sciences.[143]

“So,” Smith is able to say, “law is not alone in its embarrassment,”[144] a consolation from which he quickly withdraws. “[H]ow long,” he wonders, “can [things] go on in this way—that is, in this condition of pervasive nonsense.”[145] “Nonsense” is a strong word here, and Smith has used it before in describing law’s quandary. So Smith admits confusion, and he offers a confession: “I confess that I have no idea what the answer to that question might be.”[146] He is “mildly reassured,” however, by the thought that “our situation is not unprecedented—that cities and even civilizations seem to have survived and even prospered for extended periods in a condition of nonsense.”[147] One can live “quite happily, for a time at least, ‘in the gap.’[148]”

What can we say about Law’s Quandary? All in all, it is a most engaging read on a subject that is of critical importance in legal philosophy, a subject of which modern legal philosophers might not even be aware. Smith, as a law professor schooled also in philosophy, brings especially the practical considerations of a lawyer to the subject. What most concerns us is Smith’s awareness of an alternative, the “classical account,” to the views that he describes as ascendant in the academy, and not only there, together with his reticence to accept that alternative, at least in part or in one of its forms. Given that almost everything he says points to the alternative and away from the ascendant views, why not accept and argue for the alternative? Smith is always looking for a way to resolve “law’s quandary,” for a way out of the “predicament,” and in the alternative, he has found one. Is his agnosticism (atheism?) here ironic, using irony to try to get his readers to accept what they otherwise could not bring themselves to accept? Or is he writing in an esoteric fashion, concerned about incurring an academic censure? In any event, and assuming again that we should take him at face value, he is like so many moderns who see the prize but cannot bring themselves to grab it.

We take comfort in that at the very end of the book, Smith mentions Socrates in the Apology referring to a “wisdom more than human,” and to the inner “voice” that Socrates heard and took to be a “divine or spiritual sign,” and in the last lines of the book, which are: “. . . we would perhaps be wise to confess our confusion and to acknowledge that there are richer realities and greater powers in the universe than our meager modern philosophies have dreamed of.”[149]

We next turn to a thinker whose life was spent in exploring those “richer realities and greater powers,” in the process transcending “our meager modern philosophies.” We will consider this thinker as he examines the same questions Smith did, with a rather different conclusion.

Eric Voegelin on Legal Ontology

Voegelin has several writings on law, but the editors of Volume 27 of The Collected Works tell us that “The Nature of the Law is Voegelin’s only comprehensive and systematic text on law. It is a product of the mature Voegelin.”[150]

In the very first paragraph of “The Nature of the Law,” Voegelin begins with the question also at the heart of Steven Smith’s Law’s Quandary:

An inquiry concerning the nature of the law is burdened with suspicions about its feasibility, for the classic philosophers, Plato and Aristotle, had no philosophy of law. The problems that are treated in our modern legal theory under this head appeared in Plato under such titles as “justice” or “the true order of the polis,” and in Aristotle as parts of the episteme politike with its subdivisions into ethics and politics. Hence, anyone who has some confidence in the acumen and competence of the two thinkers will be worried, at the outset of such an inquiry, by the thought that perhaps the law does not have a nature. Since the only reason for a thing not to have a nature is its lack of ontological status—the fact that it is not a self-contained, concrete thing in any realm of being—there arises the unpleasant question whether the law exists.[151]

From here Voegelin inquires into, using Aristotelian methodology, “the phenomena of law as they present themselves in the contemporary horizon of our everyday knowledge, from the everyday language in which lawyers talk about the law, and from the questions arising at the surface of the phenomena through the language in everyday use.”[152]

And the first thing Voegelin notices, as Smith did, is that “everyone talks about ‘the law’ as if it were an object of common knowledge.”[153] And so Voegelin is led to analyze this thing called “the law” in an attempt to discover its nature or essence.

The term, “the law,” contrasts with the term, “laws.” Legal language implies that there must be a difference between “the law,” this thing of mystery, and “laws,” that is, human positive laws, which are not so mysterious. But for the fact that its practitioners speak of “the law” as if it were something, we would be without the metaphysical problem we have been exploring. Voegelin notes the difference as follows:

The law, though we speak of it in the singular as if there were only one law, appears in a plurality of legal orders accepted as valid in a corresponding plurality of societies. Moreover, the contents of the several legal orders are not identical. A knowledge of American law will be of little use in a trial before a French judge; and even a thorough knowledge of the law of property in one of the . . . American states, while certainly helpful, by itself will be insufficient to decide a case in any one of the other states.[154]

Voegelin’s concern is “to make everyday language transparent for the problem of essence.”[155] In referring to “the law,” are lawyers really simply referring to the positive laws of the jurisdiction in which they happen to be practicing, or to the plurality of positive laws that there are in the world, rather than to some metaphysical entity? “The law,” it appears, may be used equivocally:

This correctly observed equivocal use of “the law” will furnish the starting point for another line of analysis concerning the problem that the positive law of a society carries overtones of aspiration toward, if not realization of, a “higher law.” This question of a “higher law,” however, cannot be raised at the beginning of the inquiry, because the unfolding of its implications requires some clarity with respect to the question of whether law has an essence.[156]

Voegelin proceeds to clarify that question.

While we speak of “the law” in the singular as if there were only one law, in fact we find a plurality of positive laws in a corresponding plurality of societies. Is “the law” merely an aggregate of such rules? If so, we might find the nature of the law in what all these rules have in common, much as a botanist or zoologist finds the nature of a species of plants or animals by what they have in common. However, law is not like plants or animals:

In contrast to the manner in which variations of size among the individuals of an animal species can be distinguished as individual properties having nothing to do with its essential characteristics, “the law” in the sense of a concrete legal order—”the law” in which a lawyer is interested professionally—does not allow a distinction between essential rules and rules to be neglected as nonessential. In the law of the professional lawyer every rule is “essential” if it has a bearing on his case, even though the particular rule does not occur in any other known legal order.[157]

Voegelin, while never, as far as I know, a practicing lawyer, was certainly aware of what occurs in the practice. The “minutiae” of law, about which all clients and other citizens complain, is often what a case, even a socially important case, will turn on. The lawyer is paid to find minutiae, and minutiae sometimes hides.

“The obstacle to a distinction between essential and nonessential rules,” Voegelin continues, “is that quality of the legal rule to which we refer as its ‘validity.’”[158] All legal rules, even the supposedly nonessential ones, that is, even the minutiae, are “valid” and may be case determinative. Should we therefore approach law by looking for validity rather than essence?

Voegelin may have hit a snag, but the snag itself is instructive. It suggests that we cannot locate the essence of “the law” by considering it simply as a vast aggregate of rules. Some positivists consider law in this way, although they are not looking, as Voegelin is, for law’s essence. “The encyclopedic approach to a philosophy of law, that is, the attempt to determine the essence of the law by comparing a plurality of legal orders,” Voegelin now abandons, but not without first noting that it “is not new. It made its first appearance in the sophistic period, in the fifth century B.C. In his dialogue Protagoras, Plato presents the sophist Hippias as engaged in this attempt.”[159]

Voegelin, seeking to “regain momentum,” returns to “the preanalytical experience of the law. . . . What interests us now is precisely the everyday language that has not yet suffered from analytical refinements, the language in which things still make sense. Only from the everyday language of lawyers, from the phenomenal surface of their usage, can we expect guidance toward the solution of our problems.”[160]

Voegelin “start[s] from the everyday assumption that legal orders do exist.”[161] As with all other things, legal orders change continuously, with some laws coming into existence and some passing out, without the legal order losing its identity, becoming something “new.” No lawyer will claim that when a statute is enacted or repealed or declared constitutional or unconstitutional, a new legal order has arisen. The philosopher, though, must insist that the legal order “is not an aggregate of legal rules but a sequence of such aggregates.”[162]

The lawyer, accepting what the philosopher has said, rejoins by arguing that “a series of aggregates is considered one legal order if the elements of the series are created successively by a constant procedure—in our American case, by the procedure provided by the Constitution.”[163] But Voegelin rejects this argument because it does not really overcome the problems raised by the fact that law appears as an aggregate of ever-changing rules, including those passing out of being and those coming into it. A constitution itself is an aggregate of rules.

This leads Voegelin to reject the assumption with which he has been dealing:

 Obviously, the initial assumption of the law as an aggregate of valid rules is far too narrow in the light of these reflections. A philosophy of law, if it wants to make explicit the meanings contained in the preanalytical knowledge of law, must not restrict itself to a theory of positive law, that is, of the law valid at any given present of a legal order. The preanalytical knowledge and language of lawyers about their law extend beyond the crosscut of the positive law into areas of which we may speak provisionally, without further analytical clarification at the moment, as the history of law and the law-in-the-making. We may now recall the earlier construction of the law as the vast species consisting of all valid rules of all legal orders. Although we had to reject the construction, we cautioned that there might be “something” to it, and a part of that “something” now comes into view.[164]

Notwithstanding his earlier association with Hans Kelsen, Voegelin’s analysis has thus led him beyond legal positivism.

Voegelin next considers what he calls “The Zenonic Problem”[165] raised by law, which, he says, no theory of law can avoid “if the theory is based on the assumption that a legal order is an aggregate of valid rules, or norms, and nothing but such an aggregate.”[166] Nevertheless, the analysis thus far is an achievement by itself considering “the state of intellectual confusion in contemporary legal theory. . . . The plethora of legal theories, the bewildering variety of positions in our time, is caused by the unwillingness to submit to analysis the partial verities that can be drawn in great numbers from the preanalytical experience of ‘the law.’ They are left at the stage of unanalyzed initial assumptions.”[167]

We wish Voegelin had specified the “confused” legal theories to which he referred. “The Nature of the Law” is dated in 1957. H. L. A. Hart’s The Concept of Law was not published until 1961. Lon Fuller’s The Morality of Law was not published until 1964. Perhaps Voegelin would have found something to like in Hart and/or Fuller, despite what he would have found to be their shortcomings-? Perhaps Voegelin is referring to Kelsen-? Or Holmes-? Or Austin-? In any event, if Voegelin thought legal theory was confused in 1957, what would he say about legal theory today? I imagine, though, that while he would not have found Steven Smith’s Law’s Quandary philosophical enough, he would have applauded the fact that Smith raised again the issue of legal ontology, and investigated that subject, at least in part, through an analysis of the relevant lawyer-language, the language in which references to “the law” are ubiquitous.

Summarizing his analysis so far, Voegelin concludes that “The result is negative. No thing with an ontological status could be found.”[168] And so he turns to an analysis of the “contextual phenomena that came into view more than once on the margin of the analysis but were disregarded then in the interest of its orderly conduct.”[169]

Here Voegelin “turn[s] from the rules as a self-contained realm of meaning to the society in which human beings, under the title of organs of government, make the law, presumably with a purpose.”[170] We might say, although Voegelin hesitates just now to say it, that Voegelin thus introduces teleology into his ontological analysis. It is societies, organized collectivities of individual persons, through their governments, also organized collectivities of individual persons, that particularize “the law” for specific purposes or ends. And rules are arranged in a hierarchy, also for a purpose. We must not forget that the law is made by “a series of actions of particular human beings.”[171] Purely formal treatments of the lawmaking process (and here we think, for example, of Hart) miss this key element.

“The relations among human beings in a society, thus, to a large extent have legal structure. The legal character of social reality, however, is even more pervasive than it appears to be if we consider nothing more than the specific rules created by members of the society for themselves.”[172] For example, “The man who does nothing at all to attract the attention of ‘the law,’ favorably or unfavorably, is the man whose conduct partakes most thoroughly of the nature of the law.”[173] Indeed, as our everyday language reveals, the relation between law and society is “so intimate that the whole existence of man in society is pervaded with ‘law,’ even if a specific relation of legal relevance between a type of action and a type provided by the legal order does not exist.”[174]

We mentioned above that law is not the only force holding a society together, and not even the most important one, but law is clearly important, and Voegelin, a professor of political science as well as law, now asserts that fact. In our own current society, which seems at times to be held together by threads, the question, Where would we be without law?, discloses its deeper meaning.

And these reflections bring Voegelin to the heart of his analysis. He singles out for examination the problem of “the equivocal use of ‘the law’ in the sense of valid rules made by organs of government and ‘the law’ that somehow pervades the existence of man in society.”[175] This is exactly the problem that Steven Smith called “law’s quandary.” And it is at this point that Voegelin states that “‘the law’ is the substance of order in all realms of being,” citing the maat, tao, nomos, and lex of ancient civilizations as examples, examples, by the way, of which Steven Smith may not have been aware. We have included the long quotation from Voegelin along these lines above and will not repeat it here.

Voegelin criticizes theorists, such as Holmes (without mention his name), who think of the law only in terms of what will happen if it is broken. This is Holmes’s “bad man” theory of law. This, Voegelin says, leaves out the “normative character” of law.[176] And the normative character appears in our everyday language, in which the language of morals and the language of law meet and intertwine. Thus we refer to “crimes” and “punishments” in criminal law, to the “reasonable person” standard in tort law, to “promises” and “good faith” in contract law, etc. Positive law is suffused with moral language, and it is often left up to the lay persons who make up juries to determine in particular cases whether the applicable legal/moral standard was met, using their own understandings of the common moral words used in the instructions on law given to juries by judges before they retire to deliberate. Who, ladies and gentlemen of the jury, was “at fault”? Who acted “unreasonably”? Who “broke” his or her promise? Did X “intend to murder” Y? Positivism, insofar as it wishes to separate the language of morals from the language of law, as Holmes wished to do, wishes for the impossible.

Voegelin himself notes that law, especially statutory law, is often framed without specifically moral language. However, he also notes that the moral purpose of statutes may be stated in their preambles, and is anyway usually apparent from the statutes themselves. “The commonly used language of legal rules or norms, therefore, always must be understood as the text of the law read in the light of its normative intention. It is possible, in principle, to construct an entire legal order through definitions and propositions without ever using normative vocabulary.”[177] Possible, we might add, but not recommended. In any event, we note an irony here. Holmes wished to construct an entire legal system in which the language of morals would be completely left out. That would be consistent with his positivism. Voegelin is saying that such a thing might be possible, but even then, the moral background would still be understood. For Voegelin, the relationship between law and morals is intrinsic, rather than, as for Holmes, nonexistent.

Voegelin summarizes where his analysis stands by saying that “the lawmaking process partakes of the nature of the law inasmuch as it serves the purpose of securing the substance of order in society; and the order in society is the area in which we have to search for the nature of the law.”[178]

In the next Section of “The Nature of the Law,” Voegelin, noting that “The relations just indicated have motivated a number of constructions in the philosophy of law,”[179] provides the following historical sketches.

First, Plato and Aristotle emphasized the substance of order in society, and so studied the lawmaking process “under the aspect whether its organization will result in rules that will secure the true order.”[180]

Second, the lawmaking process moves to the center of interest with the rise of the modern national states. The prince emerges as the sovereign lawmaker, and all valid law comes from him. However, “The awareness remains that the sovereign lawmakers have to secure a substance of order that is not of their making. . . . The hierarchy of valid rules has as its top stratum the divine and natural law,”[181] and all other law comes under this. Taking it in reverse order, there are the subjects, the magistrates and the king, and finally God. This order, Voegelin notes, was substantially weakened in the seventeenth century by the Hobbesian construction, which unlinks God from the hierarchical order.    

Third, now we come to legal positivism:

With the progress of secularism and the disintegration of philosophy in the nineteenth and twentieth centuries, the lawmaking process achieves complete autonomy, i.e., its theorists remove from legal theory the question of substantive order. Moreover, the theorists display a tendency to split the lawmaking process itself into two components, the valid rules and the acts of their creation, and to make each of the components independently the basis of theoretical construction. The result is a parallel development of normative and sociological jurisprudence.[182]

This is the world in which Steven Smith lives. Except Smith’s tendency sometimes appears to be to go along with the zeitgeist that Voegelin censures. Whereas Smith implies that we can no longer accept the “classical account” of law because it has “disintegrated” under the solvent of modern metaphysics, Voegelin believes that the “disintegration” has been the other way around. It was the “classical account” that was metaphysically sound. Moreover, the work of Voegelin is in retrieval of that account, whereas Smith at times seems to despair of ever regaining any part of it. Perhaps if Smith had read Voegelin, he would have found a resolution to law’s quandary.

As an aside, we note that the “split” Voegelin refers to is the subject of Hart’s The Concept of Law, even though that book will not be published until four years later.

Fourth, Voegelin cites Kelsen for the case of “normative” jurisprudence. Kelsen’s closed “hypothetical basic norm” replaced divine and natural law as the top stratum of law’s hierarchy, thereby eliminating the problems of substantive order. “Whatever power establishes itself effectively in a society is the lawmaking power, and under its hypothetical norm, whatever rules it makes are the law. The classic questions of true and untrue, of just and unjust order do not belong in the science of law or, for that matter, in any science at all.”[183] Aristotle’s political science is wholly rejected.

Fifth, a variety of theorists attempted a “sociology” of law. But, because of the things with which sociologists concern themselves, these theories are “preanalytical”: “The inquiry is not advanced to the point where the criteria of true order in the philosophical sense comes into view. In their aggregate, they reflect the same state of philosophical disintegration that is manifest in the normative jurisprudence.”[184]

We have seen that law as an aggregate of rules has no ontological status. Law appears only when it is seen in the broader reality within which it exists, that of a society. “The larger entity is the object of inquiry, and the legal order exists indeed insofar as it is part of the larger complex.”[185] Societies have ontological status, but even that raises troublesome questions, which Voegelin discusses but which we will not go into here. Voegelin has located law as a part of the substance of order of a society, and he has said that “the law” is the substance of order in all realms of being. To appropriate Aquinas’s language, “the law” is itself the rule and measure of human positive laws.

But more remains to be said about “the law” and its relationship to law as an aggregate of rules in a society. And here the word “tension” begins to crop us in Voegelin’s analysis. Readers of Voegelin will understand the importance he assigns to this term. Tension toward transcendence in the in-between of human existence, in the metaxy, is for Voegelin the very meaning of human existence. The term is now used in Voegelin’s analysis of law. And, as we will see, the capitalized term, “Ought,” is used by Voegelin in conjunction with the concept of “tension” to suggest the relationship between “the law” and laws. That is, Voegelin will say that there is a tension between the positive laws of any given society and what those laws ought to be, what they aspire to be. The tension gives rise to the Ought. Laws “are”; “the law” supplies the Ought against which laws are measured and toward which they strive. Voegelin will begin to use the construction, “the Ought in the ontological sense,” to characterize what he has been after all along in his ontological search. We might think of “the Ought in the ontological sense” as the bridge between laws and “the law.” While Voegelin has concluded that human positive laws have no ontological status, and so no essence or nature, he finds that “the law” does have ontological status.

One of Voegelin’s first uses of “tension” in “The Nature of the Law,” if not the first use, appears in what Voegelin says about the structure of the social entity as a whole, including its legal aspects:

. . . we can discern two essential tensions: 1) there is a tension between the substantive order of society and the lawmaking process insofar as the organized process of making law is apparently the inevitable means for keeping the substantive order in existence; and 2) there is a tension between the substantive order of society as it exists empirically and a true substantive order of which the empirical order falls short.[186]

Both “tensions” are important, and Voegelin deals with them in the order indicated, but our concern is with the second.

That concern is addressed especially in a section of “The Nature of the Law” entitled “The Ought the Ontological Sense.” We recognize the being of things. How does “the ought” have being? In the same way that “the law” has being, it turns out.

“Legal rules,” says Voegelin, “are meant to be ‘norms,’ and their purpose with regard to social order is ‘normative.’”[187] We take Voegelin to be using “norm” and “normative” here in the moral sense. And he goes on to “try to isolate the normative component in the meaning of legal rules,”[188] saying:

Societies depend for their genesis, continued harmonious existence, and survival on the actions of the component human beings. The nature of man and the freedom of his action for good or bad are essential factors in the structure of society. The order of its existence is neither a mechanism nor an organism, but depends on the will of men to specify and maintain it. Moreover, the order of a society is not a blueprint to be translated, with good will, into reality. It must be discovered–with an amplitude of imagination and experimentation, of trial and error; it requires improvements and must be adapted to changing circumstances. There is the previously mentioned tension in social order between standard and achievement, between achievement and the potentiality of falling short of it, between a groping for knowledge of order and the crystallization of that knowledge in articulate rules, between the order as projected and the order as realized, between what ought to be and what is.

The ultimate, the irreducible source of this tension is a set of experiences that in an analysis of the nature of the law can be no more than adumbrated.[189]

Those familiar with Voegelin will recognize the “set of experiences” to which Voegelin refers. He puts his “adumbration” into one paragraph, which begins: “Man has the experience of participating, through his existence, in an order of being that embraces not only himself, but also God, the world, and society. This is the experience that can become articulate in the creation of symbols of the pervasive order of being.”[190] And here Voegelin refers again to symbols such as the Egyptian maat, the Chinese tao, and the Greek nomos. He continues:

Man furthermore experiences the anxiety of the possible fall from this order of being, with the consequence of his annihilation in the partnership of being; and, correspondingly, he experiences an obligation to attune the order of his existence with the order of being. Finally, he experiences the possible fall from, and the attunement with, the order of being as dependent on his action, that is, he experiences the order of his own existence as a problem for his freedom and responsibility. Within the range of society, the realization of the order of being is experienced as the burden of man. When we refer to the “tension” in social order, we envisage this class of experiences. In order to link them more closely with the problem of “normativity” in legal rules, we can speak of them as the Ought in the ontological sense.[191]

This is of course vintage Voegelin, now applied to the subject of legal philosophy. It is the explication of a range of experiences we all have together with the drawing out of their consequences. It is what is missing in the “academic world” Steven Smith so bemoans. And, we maintain, it is the concept of “the Ought in the ontological sense” to which Voegelin’s philosophy of law has been leading all along, and which will structure the remainder of his analysis. He had looked for ontological status in laws, but now he has found it in “the law.” We note the equivalence of Voegelin’s construction with that of St. Thomas, for whom the natural law is the participation of the rational creature in the eternal law.

The “normativity” of legal rules, Voegelin continues, derives from this “ontologically real tension in the order of society,”[192] in which normativity Voegelin distinguishes three components: the legal rule is “meant as a true proposition concerning the Ought in the ontological sense”; the rule is “an appeal to those to whom it is addressed to integrate the truth about the Ought into their lives”; and the rule must be promulgated, that is, communicated in some fashion to those whose actions it is meant to govern—the appeal of the law is “public.”[193] As to this third component, “The lawmaking process indeed is ontologically part of the manner in which a society has an ordered existence.” [194]

Voegelin has placed “the rules of the legal order, with their peculiar normativity, in the context of the lawmaking process. In its turn, we had to place the lawmaking process in the larger context of a society to whose members the norms are addressed. The norms, thus, acquired the character of projects for the concrete order of society, and at the core of this order we found the Ought in the ontological sense, the tension in society that requires the elaborate efforts to create and maintain the order and, with the order, the very existence of society.”[195] And at the ontological center of the tension, it turns out that “the lawmaking process is only one among several types of efforts to project and realize the order of society.”[196] Society is always “buzzing” about questions concerning its order, always alive with “projects” seeking to better instantiate that order in light of the Ought in the ontological sense, “and this debate issues in reflections about the law: what the law ought to be or ought not to be,” etc.[197] Voegelin considers “these phenomena [as] of assistance in distinguishing more clearly the specific normativity of the projects called ‘the law,’” and he considers two types of projects, “projects intended to be realized in a concrete society,” and “projects intended to set standards of true order, but with little or no expectation of their being realized concretely.”[198]

Voegelin was one of the principal political philosophers of the twentieth century who regained for a shallow modernity the deep insights of the classical political philosophers, especially Plato and Aristotle, whose political science measured the order of society against the order of the soul of the philosopher. “The true order of society,” says Voegelin now, “is living reality in the well-ordered soul of the philosopher, brought to sharp consciousness by the philosopher’s refusal to succumb to the disorder of his environment.”[199] The Ought in the ontological sense is related not only to law, but to personal and political order generally. With this in mind, Voegelin considers what he calls the “empirical” and the “philosophical” lawmaking processes, which we might think of as parallels to human positive laws and “the law,” respectively. The philosopher is engaged in the second type of project referred to above, the “standard-setting” project, and he thus “becomes the lawmaker of the true order in his own right, rivaling the lawmaker of the empirical society with its order of dubious truth.”[200] The philosopher is the bearer of “the law.”

This lawmaking on two levels, as it arises phenomenally in the history of mankind, specifically in the Hellas of the fourth century, brings into focus the tension between the empirical society, with its empirical order made in its empirical lawmaking process, and the true order of society that originates in the Ought in the ontological sense as experienced by the philosopher. The problem of the law is not exhausted by the mere existence of a society under any kind of order that happens to be created by the lawmaking process. The empirical law can be measured by the standards of the true law developed by the philosopher.

The two lawmaking processes, the empirical and the philosophical, are related to one another. The philosophical analysis penetrates to the essence of the Ought in the ontological sense; and on the basis of the insights gained, the philosopher tries to sketch the types of conduct that would be adequate optimally to translate the truth about order, as it lives in the soul of the philosopher, into the practice of society. The weight of the work lies, therefore, in the inquiry into the nature of true order.[201]

Those unfamiliar with Voegelin, and with his work on Plato and Aristotle, will be inclined to dismiss all this as advancing, in place of Plato’s “philosopher-king,” a “philosopher-legislator.” More of Voegelin’s work than “The Nature of the Law” must be understood before passages such as this make sense, and even then, in our present “climate of opinion,” that understanding may not be gained. Voegelin is here answering a question raised or at least implied by Smith, namely, assuming that such a thing as “the law” exists, “Where does ‘the law’ exist?” True order, including “the law,” Voegelin answers, exists in the soul of the “philosopher” in the Platonic-Aristotelian sense. Legislators do not have to be philosophers in this sense, but they have to be able to listen to “philosophy,” also in this sense, in themselves and others, and to, through the exercise of the virtue of prudence, follow out its implications in the exercise of their professional duties. As Voegelin puts it in reciting the answer Plato himself gave in response to those who criticized his Laws on the basis that so much positive law had been left out, “anyone can elaborate the legal projects if he has understood the essence of order and realized the order within his own life.”[202] Similarly, in Aristotle’s political science, the Ethics precedes the Politics, and Aristotle’s “model” polis does not appear until almost the end of the latter work.[203]

Again, the problem for Steven Smith is that genuine philosophers in the Platonic-Aristotelian sense are today the rarest of breeds. The odds of bumping into an Eric Voegelin are very long.

Note also that the philosopher in the Platonic-Aristotelian sense does not exist in some ethereal realm. He or she is a part of the empirical order in which he or she exists, and feels its influence. The order perceived by the philosopher is therefore often in reaction to the disorder experienced in the surrounding social environment, as it was for Socrates. We often understand what justice is through experiencing its opposite. Think of Solzhenitsyn in the Gulag. “The law” may become clear, as it so often does, especially to those who live under unjust positive laws. Souls are sometimes not just turned, but turned around.

The philosopher’s analysis is motivated by the resistance of substantive order in himself to the disorder in empirical society. The philosopher’s work is an act of judgment on the empirical order, animated by the claim that the empirical order should conform more closely to types that will express adequately the truth of order. The philosopher is not outside the sphere of lawmaking, even if he knows that the empirical society will not heed his advice. On the contrary, since the Ought in the ontological sense is the reality of order, the empirical lawmaking process has moved too far from reality to have the full weight of normativity. . . . The responsibility of lawmaking devolves on [the philosopher] when the makers of the empirical law become derelict in their duties. The philosopher’s models, thus, are connected intimately with the empirical order as the standards of its normativity.

The philosopher’s project and the empirical order, moreover, are not flatly opposed, but linked by the transitional projects approaching more or less closely the reality of the Ought. . . .

. . . the empirical order of a society is capable of degrees of reality in the measure in which it articulates the tension of the Ought in the ontological sense that is the object of philosophical inquiry. The normativity of the law is participation in the true order.[204]

The word “participation” appears frequently in Voegelin’s analysis, and echoes, whether consciously or not, Aquinas’s concept that the natural law is the “participation” (participatio)  of the rational creature in the eternal law.

The legal rules of a society, Voegelin continues, sounding again like Aquinas,

intend to convey a truth about order. They refer ultimately to the Ought in the ontological sense, that is, to the experienced tension between the order of being and that part of the order that has to be established in society through human action. At the ontological core of normativity we find two persons who issue rules to acting man: 1) God, and 2) reflecting man, using his reason and conscience. . . . We must insist, in apparent conflict with all preanalytical language, that beyond the two persons of the ontological core there is no one who can issue rules with normative authority. . . . All rules directed from person to person within a society must rely for their normative authority on the ontological core.[205]

And so Voegelin rejects constructions of the law, such as Austin’s, which use “the command of the sovereign as a superficial metaphor that does not even touch the problem.”[206]

Voegelin’s philosophy of law is obviously very much part of his larger philosophy of personal and social order, two orders that are intimately related inasmuch as the person exists, and is called to exist, in society. “The organization of man’s personal life in attunement with the truth of order is possible only within the framework of social order. A society has a raison d’ȇtre, therefore, only insofar as it allows its members to order their lives in truth.”[207]

Voegelin goes on to discuss the concept of “representation” in the context of the question, raised by the “impersonality” of legal rules, “How can society issue rules at all?” While we usually think of the social “representative” as a collectivity, such as the Congress, even an individual may be a “representative” of society in this sense:

The distinction between person and representative holds true also in the cases of rules emanating from a single human being, as for instance from a single judge holding court. We accept the decision of the single judge sitting in court as valid, not because of the wisdom and justice of his decision, but because he is the representative of society whose position derives ultimately from the constitution. We abide by his decision, not because we agree with its truth—probably we shall hold a different opinion about the truth when the decision has gone against us—but because we play, in our capacity as citizens, our representative roles as members of the organized society who respect its order.[208]

And so lawyers, and everyone else in a courtroom, rise to their feet at the entrance of the judge and the call of the bailiff. It is not formally out of respect to the individual person who is the judge, but out of respect to him or her as a representative of the society under whose laws he or she judges.

As in all of his thought, Voegelin is no romantic or utopian when it comes to law. “The law” will never be completely instantiated in any empirical order. “The tension between true order and empirical order, we conclude, never can be abolished, though the discrepancy can be held, by various devices [Voegelin mentions the Madisonian ”auxiliary precautions” embodied in the American Constitution], to a minimum that will not motivate the people to revolt.”[209] Error is to be expected, and must be allowed for. Persons, and the societies they create, always fall far from perfection. Human positive laws never quite instantiate “the law.” Voegelin again sounds like St. Thomas here, who cautioned against frequent changes in human positive laws—even if something better came along–because such changes would threaten to call the whole legal order into question.[210]

Voegelin finally considers the use of force in law, rejecting those theories that make legal sanction through force the essence of law. Voegelin lists the reasons why the use of force for the imposition of the legal order is necessary.

First is the aforementioned “calculus of error,” the fact that there is always some discrepancy between a rule and the Ought in the ontological sense. “We only have to imagine what would happen if taxpayers could refuse payment until the expenditures of the government stand rational scrutiny in the light of true order. . . . The debate about the justice of the law must remain within the forms of political criticism and political action through voting. If the existence of the society is to be preserved, the debate [about particular laws] cannot be permitted to degenerate into individual decision and resistance.”[211]

Second, force is necessary “because the question of truth in matters of order rarely permits a certain, unequivocal answer.”[212] Society is complex, and decisions about laws, “when finally made, will contain an element of arbitrariness. Again, if the society is to survive, the debate cannot go on forever; and once the decision is made by the representative, disobedience on the ground that the merits of the measure are still open to doubt cannot be permitted.”[213]

One is struck here by the Voegelinian “balance,” in imitation of the balance Voegelin found in Plato. While insisting on “the Ought in the ontological sense” as the basis of legal order, Voegelin at the same time realizes the refractory substance on which the Ought is sought to be imposed. Lesser thinkers—who are currently in plentiful supply—insist on revolution in the case of failures of their own particular “Oughts.” The balance of a Plato, a St. Augustine, a St. Thomas, a Voegelin, has gone out of fashion, but not, thanks to their writings, out of existence.

Third, the use of force is necessary because persons always fall short of true order, to lesser and greater—sometimes much greater—extents, and so must be threatened with compulsion, and compelled. Voegelin here cites Aristotle, but he could have cited St. Augustine and the Christian doctrine of original sin.

It is in this context, interestingly enough, that Voegelin addresses something of the philosophy of “personalism,” about which our friend David Walsh has recently written. “[I]t is,” says Voegelin, “the nature of a man to be a person, that is, to order his conduct by reason and conscience. But it is also the nature of man not to be a person.”[214] It takes a person a long time to mature, and many of us never quite get there. “Obviously, we can distinguish a wide variety of human types on the scale of maturity and immaturity, ranging from the saint and philosopher to the habitual criminal.”[215] Most of us fall, we hope, at least somewhere in that vast middle.

Assigning the term “personal” to the reason and conscience, Voegelin asserts that the remainder of the person, while part of his or her nature, is not “personal.” This “not personal” part of human nature includes, Voegelin says, our passions. “Those forces in the soul that disturb the attunement of the person with the order of being are as essentially human as the experience of order and the desire for attunement. Every man has to carry the burden of his all-too-human passions. . . . In brief: the nature of man is not all personal.”[216]

This brings us up short. Aristotle and Aquinas might disagree with Voegelin here. The passions, they would say, when integrated into the human personality through their subordination to reason, are at the center of all human action, the very springs of action. Aquinas was especially concerned not to denigrate the passions in any way, devoting an entire “Treatise” to them in his Summa Theologica,[217] and integrating them with his thought throughout. Of course, perhaps we are misreading Voegelin here. He was not, after all, a Stoic, and he is not necessarily denigrating the passions in saying that they are “not-personal.” Perhaps he leans more toward St. Augustine than St. Thomas. Perhaps we are wrong to think that “personalism” requires the acceptance of the passions as part of the personal. On the other hand, when we think of the “personal,” we think of the whole person, including his or her passions. The attunement to the order of being of which Voegelin speaks is achievable only through the effect of the reason on the passions. “Character” itself is formed through the discipline of the passions, and is then made manifest through their exercise in human action. Are we not all known more through the emotions that reveal themselves in our actions than through our reason?

Be all that as it may, and returning to the issue of the use of force, Voegelin says that: “Hence, the use of force in society is not necessary for imposing a true order on the person of man—that matter would take care of itself if man were all person. It is necessary for imposing an order bearing the marks of human personality on the impersonal nature of man. In particular, the use of force is necessary to break the impersonality of man when it tends to disrupt the order of human existence in society.”[218]

We are familiar with Mill’s “anti-harm” principle as the basis of the social order of a liberal society. Basically Mill held that the purpose of law is limited to protecting individuals from harm caused by other individuals. Without mentioning Mill specifically, Voegelin, consistent with his classical view of the broader, moral purpose of politics, calls this construction into doubt in his discussion of this third reason for the use of force in law. While force is intended to protect society from lawbreakers, perhaps that is not its primary function. Sounding like Socrates in the Republic and the Gorgias, Voegelin says that punishment

also has the purpose of restoring the personal order in the soul of the delinquent and, as far as that is possible, of reconstructing him as a person. A utilitarian “philosophy” of criminal law would obscure the problem that, in the order and disorder of society, the Ought in the ontological sense is at stake and that this Ought has its seat in the person of every single man.

The use of force in the imposition of the legal order, we may summarize, brings to ultimate clarity the impersonal nature of the legal rule: the impersonality of the legal order has its ontological source in the impersonality of human nature.[219] 

The final few pages of “The Nature of the Law” is entitled “Conclusions,” and while they are not simply a re-citation of the points already made, we will leave them to the reader, except to quote the final two paragraphs in full, in which Voegelin applies with full force to the subject of law the larger project that will become his Order and History:

For an inquiry into the nature of the law, the most important event in the history of social order is the differentiation of the normative sources of authority, of reason and revelation, from the compact experiences and symbols of the myth. Under this aspect we must distinguish between three principal types of law: a) the law in the context of a society that is ordered by the cosmological myth; b) the law in the contexts of societies that have experienced Revelation (Israel) or Philosophy (late Hellenic, classical Roman); and c) the law in the contexts of the Roman Empire and Western civilization, in which both reason and revelation are present as authoritative sources of order. Today this problem is neglected badly in jurisprudence—one might even say it is completely disregarded—because our cultural environment has become both antireligious and antiphilosophical.

Nevertheless, the relation of the three authorities of Power, Reason, and Revelation obviously is of the first importance for the realization of true order in society, once the normative authorities have been differentiated from the myth.  One may formulate tentatively that the balance of the three authorities is the condition of true order in Western civilization. That question has acquired a new pungency in the nineteenth and twentieth centuries, both practical and theoretical, because of the rise of Gnostic creed movements that attempt the ordering of society by fusing the normative authority into the authority of power, as it is done for instance in the organization of a Communist or National Socialist empire. That fusion of the authorities would have to be added as a fourth type to the three just enumerated, for deliberate fusion of differentiated components is not the same as primordial compactness. The distinction of the great historical types of order, in the context of which the lawmaking processes function, must be considered a further, and the final, result of this inquiry into the nature of the law.[220]

Today, of course, our cultural environment has become even more antireligious and antiphilosophical than it was in 1957 when Voegelin wrote “The Nature of the Law.” Steven Smith gave testimony to this. Were he alive today, Voegelin might have had to add a type of law in between his third and fourth which would be characterized by the project of legal positivism.

We do not have time to consider the parts of Volume 27 immediately following “The Nature of the Law,” which are, first, the “Outline of Jurisprudence Course” that Voegelin taught at the Louisiana State University Law School from 1954 to 1957, and, second, “Supplementary Notes for Students in [the same] Jurisprudence Course.”[221] Especially the “Supplementary Notes” are of great interest, and much could be written about them. For example, Voegelin’s Notes there contain reflections on “natural law” more extensive than those found elsewhere in Volume 27.

Concluding our examination of Voegelin on law and “the law,” we note that the problems in jurisprudence to which Voegelin referred are with us still, and even more so, and it is hoped that some familiarity with Voegelin’s work, and not only his work on law, which of course, as even “The Nature of the Law” indicates, does not stand alone, may have, as Voegelin himself put it, some “remedial effect—in the modest measure that, in the passionate course of events, is allowed to Philosophy.”[222]

Conclusion

We’ll finish with an epigram:

“The law” is mysterious, but it may be found by those who seek it.

[1] Steven D. Smith, Law’s Quandary (Cambridge, Massachusetts: Harvard University Press, 2007).

[2] Eric Voegelin, “The Nature of the Law,” Ch. 1 in The Collected Works of Eric Voegelin, Volume 27: “The Nature of the Law” and Related Legal Writings, ed. Robert Anthony Pascal, James Lee Babin, and John William Corrington (Baton Rouge, Louisiana: Louisiana State University Press, 1991), 1-69.

[3] Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harvard Law Review 457 (1897), 460-61.

[4] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 868 (1992).

[5] Smith, 41.

[6] Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (New York: Cambridge University Press, 2010), 43.

[7] Ibid.

[8] Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).

[9] H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1970), see especially Ch. IX.2. on “The Minimum Content of Natural Law”; Lon L. Fuller, The Morality of Law, rev. ed. (New Haven, Connecticut: Yale University Press, 1971), in which the title suggests Fuller’s concern with the “internal morality” of law.

[10] Holmes, “The Path of the Law,” 464.

[11] Ibid., 457.

[12] Smith, xii.

[13] Ibid.

[14] Ibid., xiii.

[15] Ibid., 4.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] David Walsh, The Modern Philosophical Revolution: The Luminosity of Existence (New York: Cambridge University Press, 2008).

[20] “Law 1” and “Law 2” are not terms used by Smith, but merely our convenient short-hand ways to refer to what he is talking about.

[21] Smith, 44.

[22] Ibid., 45.

[23] Ibid.

[24] Ibid.

[25] Ibid., 45-48.

[26] Ibid., 45.

[27] In Swift v. Tyson, 41 U.S. 1, 37 (1842).

[28] Ibid., 46, quoting Holmes’s dissent in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 532-534 (1928).

[29] Smith, 46.

[30] See Yves R. Simon, The Tradition of Natural Law: A Philosophers Reflections (New York: Fordham University Press, 1992), 23-24:

For a number of years we have been witnessing a tendency, in teachers and preachers, to assume that natural law decides, with the universality proper to the necessity of essences, incomparably more issues than it is actually able to decide. There is a tendency to treat in terms of natural law questions which call for treatment in terms of prudence. It should be clear that any concession to this tendency is bound promptly to cause disappointment and skepticism. People are quick to realize what is weak, or dishonest, in pretending to decide by the axioms of natural law, or by airtight deduction from those axioms, questions that really cannot be solved except by the obscure methods of prudence, and they gladly extend to all theory of natural law the contempt that they rightly feel toward such sophistry. Thus, whereas an ideological current marked by relativistic and evolutionistic beliefs may cause a situation strongly unfavorable to the theory of natural law, ideological currents expressive of an eagerness to believe that some things are right and some things wrong by nature may cause another kind of difficulty and call for a supplement of wisdom on our part.

[31] Smith, 47.

[32] St. Thomas Aquinas, Summa Theologica (“ST”), tr. Fathers of the English Dominican Province (Westminster, Maryland: Christian Classics 1981), I-II, Q. 91, A.2.

[33] Robert Bolt, A Man for All Seasons: A Play in Two Acts (New York: Vintage Books, 1990), 126.

[34] Smith, 47.

[35] Ibid., 48.

[36] ST, I-II, Q.s 90-108.

[37] ST, I-II, Q. 90, A. 4.

[38] ST, I-II, Q. 90, A. 1.

[39] J. Budziszewski, Commentary on Thomas Aquinas’s “Treatise on Law” (New York: Cambridge University Press, 2016), 19,

[40] I owe this “jurisdictional” account of Aquinas’s types of law to a course taken several years ago from Russell Hittinger at The Catholic University of America.

[41] ST, I-II, Q. 91, A. 2.

[42] Just try reading the latest version of the Internal Revenue Code!

[43] ST, I-II, Q. 93, A.3.

[44] ST, I-II, Q. 94, A.2.

[45] Ibid.

[46] ST, I-II, Q. 90, A. 2.

[47] ST, I-II, Q. 94, A. 2.

[48] ST, I-II, Q. 99, A. 2 and Q. 100; ST, II-II, Q. 122, A. 1.

[49] ST, I-II, Q. 91, A. 3.

[50] ST, I-II, Q. 92, A. 1.

[51] ST, I-II, Q. 94, A. 3.

[52] ST, I-II, Q. 96, A. 3.

[53] ST, I-II, Q. 96, A. 2; see also, ST, I-II, Q. 95, A. 1, and ST, I-II, Q. 96, A. 5.

[54] ST, I-II, Q. 96, A. 2, ad. 2. In another place, in contrasting human law with Divine law, Aquinas says this about the end or purpose of human law: “For the end of human law is the temporal tranquillity of the state, which end law effects by directing external actions, as regards those evils which might disturb the peaceful condition of the state.” ST, I-II, Q. 98, A. 1.

[55] ST, I-II, Q. 94, A. 4.

[56] Ibid.

[57] Ibid.

[58] Ibid.

[59] Ibid.; see also, ST, I-II, Q. 94, A. 6.

[60] ST, I-II, Q. 96, A. 4. See also, ST, I-II, Q. 96, A. 6.

[61] Ibid.

[62] Ibid.

[63] ST, I-II, Q. 97, A. 2.

[64] ST, I-II, Q. 91, A. 4.

[65] ST, II-II, Q. 122, A. 1.

[66] ST, I-II, Q. 91, A. 5; ST, I-II, Q. 98, A. 1.

[67] ST, I-II, Q. 98, A. 1.

[68] Smith, 45.

[69] Rémi Brague, The Law of God: The Philosophical History of an Idea, tr. Lydia G. Cochrane (Chicago: The University of Chicago Press, 2008), vii.

[70] Ibid., vii-viii.

[71] Mircea Eliade, Cosmos and History: The Myth of the Eternal Return, tr. Willard R. Trask (New York: Harper & Row, 1959), 31-32.

[72] Ibid., 95.

[73] Ibid.

[74] Ibid.

[75] Ibid., 105.

[76] Henri Frankfort, The Birth of Civilization in the Near East (Garden City, New York: Doubleday & Company, 1956), 98-99.

[77] Ibid., 99.

[78] Henri Frankfort et al., The Intellectual Adventure of Ancient Man: An Essay on Speculative Thought in the Ancient Near East (Chicago: The University of Chicago Press, 1977).

[79] Voegelin, 24-25.

[80] G. S. Kirk, J. E. Raven, and M. Schofield, eds., “Heraclitus of Ephesus,” Ch. VI in The Presocratic Philosophers: A Critical History with a Selection of Texts, 2nd ed. (Cambridge, Cambridge University Press, 1991), 211, Fr. 250.

[81] Sophocles, Antigone, in Ten Greek Plays in Contemporary Translations, ed. L. R. Lind, tr. Shaemas O’Sheel (Boston: Houghton Mifflin Company, 1957), 92.

[82] Smith has a much less lofty conception of Socrates, believing him to have been as uncertain about the fundamental human concepts he discussed with his sophistic interlocutors–such as virtue, justice, piety, and courage–as they were.

[83] Aristotle, The Nicomachean Ethics, tr. David Ross (Oxford: Oxford University Press, 1992), v.7.

[84] Aristotle, Rhetoric, tr. W. Rhys Roberts (originally published 1924; provided by The Internet Classics Archive; available online at http://classics.mit.edu//Aristotle/rhetoric.html), 1.13.1-2.

[85] Richard Weaver famously “blamed” modernity itself, or at least much of it, on William of Occam. Richard M. Weaver, Ideas Have Consequences (Chicago: The University of Chicago Press, 1984). See especially 1-17. Josef Pieper thought that the Thomistic synthesis was the high point of Western civilization generally, but that it was fragile, and began to come apart under the influence of thinkers like Siger of Brabant and William of Occam.

[86] Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Chicago: The University of Chicago Press, 1982), see especially v.

[87] C. S. Lewis, Mere Christianity (New York: HarperCollins, 2001), Chs. 1, 3, and 4.

[88] Ibid., 3.

[89] Ibid., 3-6.

[90] Ibid., 6.

[91] Ibid., 8.

[92] Ibid., 20.

[93] Ibid., 21.

[94] Ibid., 21-22.

[95] Ibid., 22.

[96] Ibid., 23-25.

[97] C. S. Lewis, The Abolition of Man, or Reflections on education with special reference to the teaching of English in the upper forms of schools (New York: HarperCollins, 2001).

[98] Ibid., 2.

[99] Ibid., 5.

[100] Ibid., 14-15.

[101] Ibid., 17.

[102] Ibid., 18.

[103] Ibid., 43-44.

[104] Ibid., 47 and 49.

[105] Ibid., 64.

[106] Ibid., 73.

[107] Ibid., 83.

[108] Hadley Arkes, “The Natural Law—Again, Ever,” Ch. Seven in Natural Law Today: The Present State of the Perennial Philosophy, ed. Christopher Wolfe and Steven Brust (Lanham, Maryland: Lexington Books, 2018), 111-137; also at Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (New York: Cambridge University Press, 2010), 43-78.

[109] Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (Indianapolis, Indiana: Liberty Fund, 2008).

[110] Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment (Cambridge: Cambridge University Press, 2020), 35.

[111] Obergefell, 576 U.S. at 679.

[112] Obergefell, 576 U.S. at 660, 664, 665, 670-671, and 672.

[113] Ronald Dworkin, Law’s Empire (Cambridge, Massachusetts: Harvard University Press, 1993).

[114] The Court had earlier found this “right of privacy,” of personal “autonomy,” in the “penumbras, formed by emanations from” any one of a number of provisions in the Bill of Rights, none of which recognize any general “right of privacy.” Griswold v. Connecticut, 381 U.S. 479, 484 (1965). This is the right that can be traced from Griswold through any number of the Court’s most significant cases of the last several decades, including Roe v. Wade, 410 U.S. 113 (1973), itself, all the way to the “mystery of human life” passage in Casey, which upheld Roe. Pharaoh himself would have blanched at issuing decrees on such a made-up basis.

[115] Casey, 505 U.S. at 851.

[116] Smith, 48.

[117] Ibid.

[118] Ibid., 49.

[119] Ibid.

[120] Ibid., 50.

[121] Ibid.

[122] Ibid., 50-51.

[123] Ibid., 51.

[124] Ibid., 52.

[125] Ibid., 60.

[126] Ibid., 61.

[127] Ibid.

[128] Ibid., 65.

[129] Ibid.

[130] Ibid., 66.

[131] Ibid., 97.

[132] Ibid., 126.

[133] Ibid., 151.

[134] Ibid.

[135] Ibid., 151-152.

[136] Ibid., 152.

[137] Ibid.

[138] Ibid.

[139] Ibid., 152-153.

[140] Ibid., 153

[141] Ibid., 157.

[142] Ibid., 175.

[143] Ibid., 176.

[144] Ibid., 177.

[145] Ibid.

[146] Ibid.

[147] Ibid.

[148] Ibid.

[149] Ibid., 179.

[150] Voegelin, xiii.

[151] Ibid., 6. We are told in the “Editor’s Preface” that “The Nature of the Law” (1957) was “mimeographed for distribution to students in the course in jurisprudence at the Louisiana State University Law School.” Ibid., ix. Having been a law school student myself, I can only imagine that attendance in Professor Voegelin’s course may have dwindled when the students read this first paragraph of the mimeograph.

[152] Ibid., 6.

[153] Ibid., 7.

[154] Ibid.

[155] Ibid.

[156] Ibid., 7-8.

[157] Ibid., 9.

[158] Ibid.

[159] Ibid., 11.

[160] Ibid., 11-12.

[161] Ibid., 12.

[162] Ibid., 14.

[163] Ibid.

[164] Ibid., 15-16.

[165] An example of the Zenonic paradox is that no runner can reach the finish line because he must first pass through an infinite number of points.

[166] Voegelin, 18.

[167] Ibid.

[168] Ibid., 20.

[169] Ibid.

[170] Ibid.

[171] Ibid., 22.

[172] Ibid., 23.

[173] Ibid.

[174] Ibid., 24.

[175] Ibid.

[176] Ibid., 25.

[177] Ibid., 26.

[178] Ibid.

[179] Ibid.

[180] Ibid.

[181] Ibid., 27.

[182] Ibid., 27-28

[183] Ibid., 28.

[184] Ibid., 29.

[185] Ibid., 38-39.

[186] Ibid., 30.

[187] Ibid., 43.

[188] Ibid.

[189] Ibid.

[190] Ibid., 43-44,

[191] Ibid., 44.

[192] Ibid.

[193] Ibid., 44-45.

[194] Ibid., 47.

[195] Ibid., 48-49.

[196] Ibid., 49.

[197] Ibid.

[198] Ibid.

[199] Ibid., 52.

[200] Ibid., 53.

[201] Ibid.

[202] Ibid., 54.

[203] Ibid.

[204] Ibid., 54-55.

[205] Ibid., 55-56.

[206] Ibid., 56.

[207] Ibid., 56-57.

[208] Ibid., 59.

[209] Ibid., 61.

[210] ST, I-II, Q. 97, A. 2.

[211] Voegelin, 61-62.

[212] Ibid., 62.

[213] Ibid.

[214] Ibid.

[215] Ibid., 63.

[216] Ibid.,

[217] ST, I-II, Q.s 22-48.

[218] Voegelin, 63-64.

[219] Ibid., 64.

[220] Ibid., 68-69.

[221] Ibid., 70-83.

[222] Eric Voegelin, Order and History: Volume One, Israel and Revelation (Louisiana State University Press, 1969), xiv.

Print