[One problem] 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 a 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 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.
Making Nonsense of Our Pre-Analytic Knowledge
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.
Such an assumption will satisfy the everyday language of “the lawbreaker” and “the law-abiding citizen” considerably better than the alternative constructions built on the isolated phenomenon of the lawmaking process.
If, for example, the criminal law with its types of crimes is taken in isolation, and especially if the criminal law is couched in the form of if-laws, it can be, and indeed has been, constructed as a body of rules that order courts to respond with certain actions—called trial, sentence, and execution—to actions that conform to the “if” part of the law.
The legal order, under this construction, would not prohibit murder, theft, and so forth, but would only attach certain consequences to these types of action, leaving it to the discretion of the citizen to avoid or to seek the sanctions. The normative character, the “Thou shalt not,” would have been removed from the substantive rules of criminal law, and it would make no sense to speak of a crime as an illegal action, or of the man who commits it as a lawbreaker.
In our everyday experience of the law, then, the reason why certain consequences, understood as “punishments,” should be attached to certain types of action, understood as “crimes,” would not be a question to be examined in a philosophy of law. Issues of this type would belong to a realm of “moral” purposes beyond the law. The meaning of “law-abiding citizen” also would evaporate, for nothing such a citizen does could be classified as legally relevant in terms of actions falling under types provided in the aggregate of valid rules.
Against this construction lies the same argument as that against the impasse of the Zenonic paradox: the purpose of analysis is not to make nonsense of our preanalytical knowledge about law, but rather to make its sense explicit. Hence, we must prefer the assumption that the lawmaking process makes sense as an instrument for securing the substance of order that inheres essentially in society.
The assumption, moreover, commends itself especially because the legal order in the sense of the aggregate of valid rules rarely is couched in the normative language of the “Thou shalt” or “Thou shalt not.”
The written law usually describes types of facts, events, and behaviors that become legally relevant through the other types of facts, events, and behaviors of organs of government that ensue in case of conformity or nonconformity to the first class of types.
That the chain of types is constructed with the purpose of securing order in social relations is not made explicit necessarily in the text of a law, though the so-called intention of the lawgiver may be stated explicitly in “preambles” to the law.
In the major modern codifications, however, the intention is presupposed, and the legal technique of the codemaker is concentrated on the task of constructing types that will realize the intention with a maximum of probability. 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.
In summary of these reflections it can be said: 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.
Legal Theory From Plato to Hobbbes
The relations just indicated have motivated a number of constructions in the philosophy of law. The principal types are the following:
1. In Plato and Aristotle the accent lies on the substance of order in society, specifically on the order of the Hellenic polis. The inquiry into the true order of the polis is the philosopher’s principal task. Specific rules are formulated under the aspect that they articulate the true order in society and, if enacted, will secure it. The lawmaking process is studied under the aspect whether its organization will result in rules that will secure the true order.
2. The lawmaking process moves into the center of interest with the genesis of the modern national state. In the struggle with the authorities of Church and Empire, of Roman Law and the Estates, the governments of the rising national states assert the supremacy of the state in the making of the law. The prince, as the representative of the state, becomes the sovereign lawmaker. All valid law emanates from him, either directly or from agents to whom he has delegated lawmaking authority.
Nevertheless, while the accents have shifted, the lawmaking process is not yet self-contained. The awareness remains that the sovereign lawmakers have to secure a substance of order that is not of their making. This is the type of construction represented by Bodin in the sixteenth century.
The law is recognized under its two aspects of a hierarchy of valid rules and a hierarchy of lawmaking authorities. The hierarchy of valid rules has as its top stratum the divine and natural law; under this stratum move the statutes of the prince; then follows customary law insofar as it is not in conflict with the royal statutes; next come the decisions of the magistrates, moving within the law as fixed by the higher strata; and at the bottom come the legal transactions of the subjects—their buying and selling, their labor contracts, marriages, wills, and so forth.
The hierarchy of lawmaking authorities, in reverse order, begins with the subjects, rises through magistrates and the king, and culminates in God.
In the seventeenth century, however, the link of the sovereign lawmaking process with an autonomous substance of order is notably weakened in the construction of Hobbes. Hobbes reduces the substance of order to the postulate of peace within the community. Whether or not the resulting order manifests the Judaeo-Christian substance, still envisaged by Bodin, is put at the discretion of the Sovereign. Whether the Commonwealth of England will be Christian or not becomes a matter not of substantive order but of historical accident.
The Loss of the Substance of Order
3. 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.
Kelsen’s “Pure Theory of Law”
4. The representative case of normative jurisprudence is Kelsen’s “Pure Theory of Law.” In this theory, the lawmaking process acquires the monopoly of the title “law,” as Kelsen blends norms and legally relevant acts into one normative realm.
Kelsen’s hierarchy culminates in a hypothetical basic norm that orders the members of society to behave in conformity with the norms deriving ultimately from the constitution. The power structure articulated in the constitution is the origin of the legal order, surmounted by the hypothetical basic norm only to make the highest ordering acts intelligible as acts in conformity with a norm, thereby closing the normative system.
The law and the state, then, according to Kelsen, are two aspects of the same normative reality. Since the hypothetical basic norm replaces the Bodinian divine and natural law as the top stratum of the hierarchy, the problems of substantive order are eliminated.
Whatever power establishes itself effectively in a society is the law-making 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. For the only science of society that Kelsen admits by the side of normative jurisprudence is a “sociology” defined as a science that is concerned with human actions and their causal relations. The whole area of the Aristotelian episteme politike is not science and, therefore, does not deserve the attention of a theorist.
Sociology of the Laws: Its Pre-Analytic Character
5. In the case of attempts to use lawmaking acts as the basis of theoretical construction, it is difficult to single out a representative system. Here we are faced rather with a large variety of attempts at a “sociology” of law. According to their interests, the authors concentrate either on the constitutional and legislative processes, or on the court decisions at various levels, or on the behavior of the general public and its subgroups.
A rich vocabulary of legislative purposes and legal functions signifies the manifold relations between human beings and the order of the society in which they live—a vocabulary of domestic peace, welfare, and social security; of freedom and property; of class and group interests; of protection of the weak; of adjustment, deterrence, prevention, and rehabilitation; of lawful and unlawful, social and unsocial behavior; and so forth.
What the terms of this class, and the sociological theories in which they occur, have in common is their preanalytical character. The inquiry is not advanced to the point where the criteria of true order in the philosophical sense come into view. In their aggregate, they reflect the same state of philosophical disintegration that is manifest in the normative jurisprudence.
The nature of the law as the substantive order of society will not become the object of analysis if the inquiry stops short at the observation of such phenomena as the behavior of judges, the demands of pressure groups, the ideologies of political movements, the psychology of conformity or delinquency, the need of legislative and judicial reform, and so forth.
The Complex of Order in Society
The law in the sense of an aggregate of valid rules must be placed in the social context of the process in which it is created; and the law-making process in turn must be placed in the context of the society that secures its substantive order by means of this process. The whole complex is one unit of meaning, one entity.
The term law, therefore, will change its meaning as it is used to signify either the whole or only one part of the complex. The equivocations caused by this situation can be avoided only through an artificial terminology at considerable variance with everyday usage—a procedure not to be recommended. Therefore, I shall introduce conceptual distinctions as they become necessary, with appropriate cautions when using conventional vocabulary.
Legal Rules and Substantive Order
At the present juncture such a caution is necessary, for we must distinguish between 1) “the law” in the sense of legal rules and the lawmaking process and 2) “the law” in the sense of the substantive order of society.
We shall speak of the two areas of the total complex as its legal and social areas or sides, with the understanding that the whole complex is the entity whose nature we are exploring when we are in search of the “nature of the law.”
The terminological narrowing of “legal” does not imply an essential narrowing, for we consider it established that the legal order as an aggregate of rules has no ontological status and, consequently, neither essence nor existence.
In the structure of this entity as a whole 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 the 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.
At present we shall deal only with the first of these tensions, the orientation of the legal order as a means for achieving substantive order in society.
Of this rather complex relationship, moreover, we shall single out first the weighting of the relation toward the social side of the complex. The question of the valid legal order now must be reexamined.
Having found in society the something that attaches the weight of existence in time to the legal order, we must ask again: What do we mean by “the law” when we speak of American or Italian law, or of the history of French civil or administrative law? Obviously we do not mean merely the aggregate of valid rules or the series of aggregates, but we let flow into our language a component of meaning that stems from the social side.
The Extra-Legal Sources of a Constitution
The peculiar weighting effect of the social side will become both apparent and intelligible if we reflect on certain border questions of constitutional law.
If the legal order is understood as the aggregate of valid rules or as a series of aggregates, all component parts of the order derive their validity, through the mediating links of procedural rules, from the constitution in the material sense. The legal order is constituted as an identifiable unit of meaning by the rules concerning the procedure of its creation.
The apparent clarity of the construction, of course, is disturbed by the previously raised question concerning the status of rules that once were valid under the constitution but are not now, and those that are not valid now but will be in the future–but that question we still must leave suspended.
We shall rather reflect on the phenomenon of the so-called “changes” in the constitution itself, as well as on the provisions for its own amendment that it may contain.
On principle, to be sure, the same argument applies to the aggregate of constitutional rules as applies to all other subaggregates of valid rules: the aggregate does not “change” through the entrance or exit of rules, but it is transformed into a different aggregate. With the constitutional procedures, however, we have reached the top of the hierarchy of rules.
There is no constitution above the constitution that would link a series of constitutional aggregates into one legal order in the manner in which the statutory subaggregates are linked by the constitution.
We have arrived at the border at which the problem of validity no longer can be solved intra-systematically through regress to a procedurally higher aggregate of rules. We are faced with the phenomenon that the validity of the law has its origin in extralegal sources.
At this juncture, more than one line of analysis branches off. In the first place, the problem can be eliminated through a construction of the type that Kelsen has attempted with his hypothetical basic norm. The purpose of the construction is to top with a norm the processes in which the constitution has originated. The hypothetical norm confers legal validity on the constitution itself and closes the legal “system.”
This construction must be rejected as analytically senseless. It does not analyze anything but cuts off the inquiry into the nature of the law. In science we are interested in the study of reality, not in the construction of a “system” that precludes its study.
Jean Bodin and the Sources of Order
A second line opens with Bodin’s differentiation of the hierarchy of the norms for the lawmaking process into divine and natural law. Here we reach indeed new areas of reality, that is, the sources of authority from which the law derives its validity.
We shall not follow this path at present, however, but defer it for later exploration; for besides the authorities to which the symbols “divine and natural law” refer, there is a further source of authority, the authority of organized social power.
Bodin takes this authority into account in his philosophy of law when he lets the prince derive his sovereign lawmaking power from his sword as well as from God. The “powers that be” confer validity on the law when they enact it, and they have the first claim to our attention because the power structure of a society is the reality that becomes legally articulate in the rules of the constitution in the material sense.
The rules of a constitution try to create a stable order for a society by placing the supreme ordering power in organs of government that represent the actual power articulation of the society.
If the makers of the constitution have diagnosed the actual power articulation of the society correctly; if, further, they are good craftsmen and know how to give legal articulation to the power reality of their society; and if, finally, the power structure that has entered the constitution is a stable one, then the constitution will last.
Setting aside questions of correct diagnosis and craftsmanship, the constitution will not last if the power structure is unstable. In that case more or less violent events will occur, and the constitutional rules will have to be adapted to the changing power structure through usage, interpretation, formal amendment, or complete replacement.
Continuity Despite Revolutions?
These phenomena of adaptation now give rise to questions concerning the identity of a legal order. If a country emerges from a revolution with a new constitution, created by procedures not provided by the previous constitution, one legal order has come to its end and a new one has emerged.
If in the face of this phenomenon we adopt the construction of the law as an aggregate of valid rules deriving from the constitution, we shall arrive at the conclusion that with the new legal order a new “state” has been created, not identical with the old “state” under the previous constitution. Such constructions have indeed been attempted and carried to their logical conclusion: that the validity of a statute, though it has survived the revolution unchanged, does not derive from the old, but from the new, constitution.
Regardless of the continuance of the main body of legal rules, a new legal order has been created when the constitutional continuity suffers revolutionary interruption. Special legal arrangement will have to be made to connect the new state with its predecessor, if that should prove desirable.
Revolutionary governments frequently display sympathy for this construction, for it seems to give them the right to repudiate the debts incurred by the prerevolutionary government. The victims of such repudiation, on the contrary, if they have the power, will insist that revolutionary replacements of legal order do not abolish such obligations; that the society that has undergone the change in its power structure is still the same society; and that there is a continuity between the pre- and postrevolutionary governments provided by the continuity of society.
This excerpt is from The Nature of Law and Legal Writings (Collected Works of Eric Voeglein 27). Columbia, MO: University of Missouri Press, 1991, pp. 24-33.