Thursday, February 16, 2006

"The law allows it, and the court awards it"

(Pre-script: a free drink to anyone who knows where the post-title comes from without researching it. You have to collect it at happy hour on friday.)

From a footnote to On the dividing line between Natural Law Theory and Legal Positivism, 75 Notre Dame L. Rev. 1613, Brian Bix:
One "internalizes" the law when one willingly, promptly, readily - and not merely out of "extrinsic" motivations of fear of punishment or hope of reward - complies with its requirements, not only according to the letter of the law but primarily according to the lawmaker's intention and plan for common good. Such states of affairs are the central case of law because they most fully instantiate the fundamental notion of law: a prescription of reason, by means of which rational and indeed conscientious and reasonable practical judgments about the needs of a complete community's common, public good, having been made and published by lawmakers, are understood and adopted by citizens as the imperium of their own autonomous, individual practical reason and will.
Three things out of this amazingly succinct paragraph. First, law is closely tied to virtue and doing the right thing for the right reason. Second, law is practical reason, providing justified reasons for action for the individual. Third, law has a "fundamental notion," or, equivalently, an essence, a definition, a central idea.Why is law a reason for action? Because it satisfies a set of not-optional requirements: it is (1) a general rule (2) promulgated by (3) a rulemaker who has care for the community (4) for the common good.

What if you want to--have a justified reason to--do X but the law commands you to not do it? The law defeats your other reason (usually). It does not destroy the other reason--there is a possibility of moral tragedy, in the sense that two legitimate values may conflict. All true laws are reasons for action, and they are conclusive, in the sense that they defeat other reasons for action that are not themselves legal norms. (Or, in some cases, moral norms.)

How does the law acquire this incredible power? By meeting the requirements (1-4) above. (See Joseph Raz, The Morality of Freedom.)

This is the natural law theory of the state. It may seem that (3) is a weak link: how do you determine who is a legitimately constituted authority? But in fact post-Thomistic scholars have carried this requirement to a level of sophistication and rigor never dreamed of by Thomas--see especially H.L.A. Hart, The Concept of Law, and his discussion of the internal perspective and the Rule of Recognition.

What seems to be a problem is (4). It's fairly clear that a strongman could seize power in a city-state, and dictate rules through a powerful apparatus which favored his cronies but which had, on the whole, malign consequences for the public. Positivism, the New Haven School, Legal Process, and Legal Realism would have no problem calling this a legal system. And yet it is unclear that his edicts provide a reason for action which defeats non-legal reasons. It provides a reason for action if you don't want to be shot, but if you can get away with it in secret, the quasi-law has lost the element that allowed it to have enough moral force to defeat your other reason.

Hart's distinction of "being obliged to do X" (because of a gun) and "being obligated to do X" (because other reasons are defeated) thus in fact is not explained by Hart's legal theories (and much less by Kelsen's or Austin's).

I think it is safe to say that the most important question since Weber is, once (4) has been dropped, how do you justify obedience to the state? The notion that the common good, moral and legal norms, and reasons for action are tightly intertwined has been called by Isaiah Berlin "the central tradition of western thought." As a libertarian he rejected it. What replaces it?


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