Obedience to the Law

The Ought is not itself a “postulate” or a “norm” but the experienced tension between the order of being and the conduct of man. In the orbit of this tension, rules concerning social order are more than empirical observations concerning regularities of ac­tion. Since the problem of order is precisely the tension between empirical conduct and true order, legal rules, whether they are gen­eral rules or individual rules for the parties in a concrete case, have the character of projects of order.

Whether or not the rule employs the formula “Thou shalt” or “Thou shalt not,” it has that meaning when it projects the types to which the conduct of human beings is supposed to conform. The so-called “normativity” of the rule de­rives, therefore, from the ontologically real tension in the order of society. The following three components must be distinguished in this normativity:

1. The rule, when it describes a type of action to which men “ought” to conform or, in the case of crimes, “ought not” to con­form, intends to render a truth about the concrete order of the re­spective society. It intends to give a true answer to the question of what “ought” to be done. Under this aspect of normativity, the rule is meant as a true proposition concerning the Ought in the on­tological sense.

2. The rule, within its context of the legal order, is not merely a piece of information about the Ought of order. It has been enacted, in the course of the lawmaking process, with the intention that it be heard and obeyed by the members of the society.

The normativity of the rule contains, as a second component, an appeal to those to whom it is addressed to integrate the truth about the Ought into their lives. The members of society who are defined by the rule as its addressees (e.g., recipients of taxable income, land­lords, corporations, insurance companies, policyholders, drivers of cars, parents, all persons in their capacities as potential thieves or murderers) are supposed to realize concretely in their conduct the order of society as envisaged by the rule.

3. Information about the truth of order and the appeal to realize it do not yet exhaust the phenomenon of normativity. A truth, in order to appeal effectively and to gain adherents, must be commu­nicated; and an appeal will not be effective if no one listens. Hence, the rule includes, as a third component of its normativity, the claim to be heard.

Ignorance of the law, as we all know, does not exculpate; a policyholder will not win a suit for an unjustified claim with the argument that he has not read the fine print. Setting aside for the moment the questions of individual court decisions and of legal transactions between private citizens, “the law” claims to be known. Its appeal is “public.”

The Public Character of the Legal Norm

The components of normativity form an inseparable unit; but es­pecially through the third of the components, the claim to be pub­lic, a number of problems arise both in the practice of order and in legal theory. A proposition concerning a truth about order must be formulated by someone, and its appeal, to be accepted, must be di­rected by the proponent to the addressee. The normative meaning of a rule involves at least two persons face to face in an act of com­munication, even though one of the two persons may be the re­flecting self that formulates a rule to be followed by the acting self. But where is the personal proponent of the rule in the case of the law?

The legal rule, especially a statutory rule under the conditions of modern society, obviously is not an admonition or command issued by a dignified elder to the addressee. It is a rule created in a complicated procedure that obscures the personal contributions to its making. The procedure, furthermore, is overlaid by a symbol­ism that obliterates completely all personal authority, inasmuch as the laws of a modern democracy emanate from the representa­tives of the people in legislative assembly and ultimately from the “people” itself.

No one, moreover, will indulge in the fanciful as­sumption that the mass of the addressees really has “heard” the law in obedience to which they supposedly order their conduct. Austin, in his analytical jurisprudence, has tried to meet the phe­nomenal situation with the construction that the law is the com­mand of the sovereign. In face of the phenomena, however, the construction hardly deserves the name of “theory;” it is no more than a convenient metaphor to gloss over a problem that proved too difficult to handle.

The Dubious Fulfillment of the Ontological Ought

It is a very odd phenomenal situation indeed. We may doubt that the rule’s proposition concerning the Ought is particularly true; we even may suspect that some pressure group has used its influence to make the order profitable to itself and damaging to the rest of us, so that the rule in effect is deliberately untrue; we may wonder, in view of the technical defects of a law, whether anyone has made any serious effort at all to formulate a truth concerning the order of society; we may find that the rule holds little appeal to us and is not exactly convincing; we may have only the haziest notion who really made that rule–and yet we consider it a valid rule as long as, on the face of it, certain procedures were followed in its making.

Moreover, we consider it addressed to us and binding for us, even though we never heard of it and are surprised greatly, when we en­gage in a new type of activity that has legal implications, by the rules that govern an area of social relations of which we had no pre­vious experience. It all sounds like an elaborate game of make-believe. In fact, there is an element of the game in the situation. Plato knew it when, in his Laws, he spoke of the “serious play”; and a philosopher and historian of our own time, Jan Huizinga, stressed this factor in his Homo Ludens. But the theoretical clari­fication of this issue must be deferred until some other prelimi­naries are cleared up.

The Serious Game

There is first of all the practical question that the game, however odd it may look, is taken seriously in every society. The legal rules really are supposed to be norms of order; and the members of the society, whatever their opinions may be, really are supposed to conduct themselves in accordance with the types of action pro­jected by the rules.

The lawmaking process indeed is ontologically part of the manner in which a society has an ordered existence; and the assumption that the rules are norms, and can be norms in rela­tion to the addressees only if they are communicated, is consider­ably more than a theoretical fiction. That assumption belongs to the preanalytical sphere; and every society has elaborate arrange­ments in its phenomenal sphere for the purpose of achieving actual communication.

Communicating the Law to the People

The phenomenon of which a lawyer will think immediately in this connection is the “promulgation” of the law. A law is valid only if it is made public. Some countries have special law gazettes for the publication of statutes, and their constitutions may provide that a law is in force only when a specific number of days have lapsed after publication of the respective issue of the law gazette.

Our Constitution makes no specific provision for promulgation but assumes a bill to become a statute when it is approved by the president through his signature, or when ten days have lapsed after transmission of the bill to the president for his approval. Yet we have, as does every country, means of publication by which the texts of statutes are made accessible to the public quickly.

We have, in addition, a Federal Register for the publication of administrative orders, and a wealth of other means for the publication of court de­cisions, decisions of administrative agencies, decisions and opin­ions of the attorney general, and so forth. Even this enormous apparatus, nevertheless, will not sound very convincing to the ordinary citizen who never in his life will look at any of these publications. He will object that, in spite all this effort, only the lawyers know about the law–and his observation may be tinged with the flavor of complaint about a racket.

While the complaint may draw for its flavor on personal experiences, the objection definitely is unjustified. For it is precisely the function of the lawyer to fill the gap between the publication machinery, both of the government and of private publishing companies, and the knowledge of the lay member of society.

The Public Function of the Lawyer

To know the law requires a professional dedication that absorbs the whole man. The citizen whose time and energy are absorbed by the work in which he has specialized cannot be a legal expert at the same time–hardly under primitive social and economic condi­tions and certainly not under the conditions of contemporary so­ciety.

The layman, when a complicated legal question arises in the course of his daily business, must supplement his fragmentary knowledge of the law with a lawyer’s expert knowledge. The law­yer’s knowledge is his knowledge of the law. Hence, when a man engages in some complicated business without legal advice and comes to grief, we shall not pity him as the victim of the un­justified assumption that the addressee of the law knows the law, but shall rather berate him for his imprudence if not stupidity.

The legal profession as an estate in society, thus, has a public function in maintaining the order of society insofar as the lawyer’s professional knowledge is the mediator between the legal order and the citizen’s knowledge of the law. This state of things is recog­nized phenomenally through the institutional provision for the training of lawyers, for the maintenance of standards, for rules of professional ethics, for appropriate counsel for defendants in crimi­nal cases, and through the private organization of legal aid for per­sons who cannot afford lawyers.

In the light of these observations on promulgation and the law­yer’s function, the assumption that the citizen knows the law, and by virtue of his knowledge is bound by it, will look somewhat less fantastic. But precisely this elaborate social installation for com­municating knowledge of the law makes it even clearer that the normativity of the legal rule is not merely one person’s command to another person.  

This excerpt is from The Nature of Law and Legal Writings (Collected Works of Eric Voegelinin 27) (Columbia, MO: University of Missouri Press, 1991)

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