Natural Law “Externalism” v. Law as a Moral Idea
In a recent paper posted at SSRN, “Natural Law Internalism,” Thom Brooks introduces what he argues is a novel interpretation of the natural law tradition found in the work of G.W.F. Hegel. To enable us to appreciate the creative difference between Hegel’s natural law theory with both classical law natural theories as well as their modern counterparts, Brooks suggests we make the following distinction:
“Natural lawyers defend standards that are external to the law in order to survey the merits of law. Call these accounts theories of natural law externalism. Hegel offers a very different account where we survey the merits of law through a standard that is internal to law. This essay will explain Hegel’s natural law internalism and whether it marks an advance on existing natural law accounts. I will argue that Hegel offers us a novel understanding of natural law that is compelling, but ultimately unstable and problematic.”
Brooks proceeds to discuss and outline precisely what he means by “natural law externalism,” summarized as follows:
“Classical natural law externalism then might be said to adhere roughly
to five different criteria in its classic formulation:
1. We can distinguish between ‘law’ and ‘true’ law.
2. We can make this distinction by the standard of a standpoint of justice.
3. Law is more ‘true’ the closer is coheres with a standpoint of justice.
4. The standpoint of justice is external and applied in our normative
assessment of law.
5. ‘True’ law is universally and eternally true.”
Modern natural law likewise “externalist” in the above sense, hence there is a “common similarity: all member theories identify a normative criteria external to law and employ it in their assessments of law and legal systems.” And now the contrast class, first exemplified, it is argued, by Hegel:
“This family claims that the normative criteria by which we might assess and evaluate law and legal systems is to be found within the laws themselves, not external to them. This family is natural law internalism. Hegel’s legal philosophy is perhaps the first example of natural law internalism, although there are other more recent examples as well.”
In a note, Brooks cites Ronald Dworkin’s theory as a modern descendant of this family.
I’m not here concerned with the interpretive cogency or argumentative soundness of Brooks’ account of Hegel’s natural law theory (Brooks is a devoted scholar of Hegel’s work, so we have ample presumptive reason to benefit from his analysis), even less with whether or not it is true that Hegel’s natural law theory “is compelling, but ultimately unstable and problematic.” What does get my attention is the aforementioned characterization of the majority of classical and modern natural law theories as “externalist,” in particular, the claim that our standards of assessment, with regard to justice or, say, moral principles, are “external” to our understanding of the law in general or even to the legal system itself. What I find troubling or at least misleading about this description is that it serves to drive a wedge between our understanding and assessment of law qua law, and our understanding of justice. In other words, the conceptual and normative criteria brought to bear in explicating law, moral values, and justice in particular are intimately related to each other in much of the natural law tradition. To the extent that this is in fact the case, the “externalist” picture or metaphor fails to do justice to the role of reason, to moral intuition, and to moral values and principles generally common to both law and justice. In short, I think the internalist/externalist description of natural law theory is unavailing, a conclusion that, in some respects, places Hegel in closer proximity to the tradition(s) of classical and modern natural law theory, although I’m inclined to agree with Brooks that Hegel’s natural law theory remains rather peculiar in light of that tradition (Hobbes is likewise an anomalous natural law theorist, at least if we agree in the main with the recent and respective arguments of S.A. Lloyd and Perez Zagorin).
To explain why the “externalist” picture is misleading, I’ll rely largely on Nigel Simmond’s recent book, Law as a Moral Idea (2007), as well as, to a less extent, a recent argument by Larry May in his Crimes Against Humanity: A Normative Account (2005) (a work that proffers, by my lights, a more than plausible account of the role of jus cogens norms in international law, one not wholly beholden to a ‘consensually-based custom(s)’ account of their justification, permitting them to be universally binding in a way such accounts are not). In so doing, I hope to draw readers to the works of both Simmonds and May (the latter having recently completed a remarkable four volume series dealing with the morally normative foundations of international criminal law). Because Plato is arguably the first natural law theorist, or at least foreshadows natural law theory, I’ll say a few things about Plato’s understanding of the relation between the Forms (be it the Good in general or justice in particular) and law. To be clear, my primary purpose is to introduce the general arguments of May and especially Simmonds insofar as they have bearing upon natural law theory, not so much to critique Brooks’ argument in toto, so perhaps the motivation or underlying rationale behind the characterization of most of the classical and modern natural tradition as “externalist” is salvageable, given a particular stipulative or theoretical explication of the “externalist/internalist” distinction in a way that accommodates the natural law (or natural law-like) reasoning of Simmonds and May. With apologies to Brooks, I’ve thus invoked the terms of his paper as an excuse to introduce (i.e., give a fair hearing to) rather unfashionable arguments in the philosophy of law. The characterization natural law theory as “externalist” (owing to its criteria for assessment of law’s justice or conformity with particular moral principles and values) fails to accord sufficient appreciation of the conceptual and normative ties intrinsic to our comprehension of what law in fact is (conceptually, institutionally, and so forth) from the vantage points provided by natural law theory, as Simmonds and May enable us to see. This is true if only because the kinds of questions raised here are of the same type, if only at different levels of abstraction and determination, as those raised in our reflections on the nature of law and the purposes of the rule of and the legal system. And of course the topics, questions and answers are intimately bound up with each other. In other words, philosophical reflections on law and natural law, our normative conceptions, as well as our moral standards and criteria of evaluation or assessment are in possession of strong genetic family resemblance to each other, a fact obscured by the externalist/internalist distinction.
The “externalism/internalism” distinction seems to assume that we should divorce our analytical and conceptual enterprise from our normative endeavors (at topic about which Hegel has much to say!), thus justice is classified as entailing an “external” standpoint when in fact it is intrinsic to our conceptual understanding of law qua law, at least in the natural law tradition wherein law is, in Nigel Simmond’s felicitous phrase, and first and foremost, a “moral idea.” In other words, law as such possesses, by definition as it were, an intrinsic moral aspiration and thus to the extent it falls short of that aspiration, it fails to serve its fundamental function as law. In Simmond’s words, “an inquiry into law’s nature therefore requires us to draw upon our moral understanding” (Simmonds 2007: 4). An “externalist” perspective assumes a largely instrumentalist conception of law in the first instance, a conception that natural law theorists would deny, without denying that law often does function in largely instrumentalist fashion in the legal system. The possibility of a logical distinction between our description of the “idea of law” and our normative appreciation of the value of the “rule of law” should not license an untenable conceptual and moral divide in which law as legal practice is separate from law as collective moral aspiration. Law is therefore an intellectual archetype analogous to a Platonic Form (as understood by T.K. Seung or Iris Murdoch or Francisco Gonzalez or Christopher Bobonich) “to which actual instances of law merely approximate to various degrees,” in which case, “the idea of law might provide both the general criterion whereby instances of law count as such, and a guiding ideal by reference to which all such instance ought morally to be judged” (Simmonds: 52). The ideal polis or State (e.g., the Republic or the laws for Magnesia in the Laws) thus shows how the Form of Justice might or can be realized in concrete circumstances. Despite their ideal normative features, such utopian constructions invariably reveal sensitivity to, or are reflective of, time and place. At the same time, they also reveal the sundry strengths and weaknesses or idiosyncrasies (philosophical, psychological, what have you) of their authors (cf. the normative conceptual constructions or ‘Euclidean models’ of Gandhi’s ideal polity or Rama Rajya, which invoked such ideal formulations as satya and ahimsa, satyagraha, swaraj, sarvodaya, nai talim, swadeshi, and gram rajya). Betwixt and between the intuited Forms, to which every adult with the capacity to reason has some access to, however dim or inchoate, and which are too abstract and indeterminate to function as direct normative standards and actual polities or States and their laws, are those utopian constructions (in ‘words’ or discourse) that draw upon reason (and methods like ‘reflective equilibrium’) in formulating normative criteria for assessing the degree to which our laws embody or instantiate the Form(s). These are not to be understood as architectonic blueprints for our legal systems in the sense that they represent or require definitive realization or concretization (on the order, say, of Hegelian Sittlichkeit, in which case there is no gap between Sollen and Sein). The apex of morality—or justice or the Good—as symbolized by the Forms, remain relevant in spite of the fact that it may never be wholly instantiated or embodied, indeed, that accounts for its continuing relevance as a normative standard, its ongoing function as the intuitive foundation for our utopian constructions. Assuming that the rule of law is integral to any plausible conception of a good political order, William Galston here fills out the role of utopian constructions that “mediate” between our Forms and actually existing legal systems (not unlike the ‘middle axioms’ of Sidgwick):
“Utopian thought attempts to specify and justify the principles of a comprehensively good political order. [….] Whatever their basis, the principles of the political good share certain general features:
· First, utopian principles are in their intention universally valid, temporally and geographically.
· Second, the idea of the good order arises out of our experience but does not mirror it in any simple way and is not circumscribed by it. Imagination may combine elements of experience into a new totality that has never existed; reason, seeking to reconcile the contradictions of experience, may transmute its elements.
· Third, utopias exist in speech; they are “cities of words.” This does not mean that they cannot exist but only that they need not ever. This “counterfactuality” of utopia in no way impedes its evaluative function.
· Fourth, utopian principles may come to be realized in history, and it may be possible to point to real forces pushing in that direction. But our approval of a utopia is not logically linked to the claim that history is bringing us closer to it or that we can identify an existing basis for the transformative actions that would bring it into being. Conversely, history cannot by itself validate principles. The movement of history (if it is a meaningful totality in any sense at all) may be from the most desirable to the less; the proverbial dustbin may contain much of enduring worth.
· Fifth, although not confined to actual existence, the practical intention of utopia requires that it be constrained by possibility. Utopia is realistic in that it assumes human and material preconditions that are neither logically nor empirically impossible, even though their simultaneous co-presence may be both unlikely and largely beyond human control to effect.
· Sixth, although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….] Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.” (Galston 1980: 15-16)
The Platonic construction of normative utopian models, like the Gandhian model of Ram Rajya, are not intended to point to some future political reality or indicate decisive historical telos, rather, they serve to remind us of both the indeterminacy of Platonic Forms that inspire or motivate utopian discourse and the significance of contingent historical conditions and political variables that make for relativity and plurality, as well as the necessity of judgment, in the domain of realization (or positivization). All the same, they remain indispensable to the critical political and legal tasks of specification, justification, and evaluation as adumbrated above by Galston. Plato’s particular utopian models in (The) Republic and (The) Laws were based on conceptions of virtue found in the Greek tradition metaphysically grounded in the Forms (or the Form, the Good) and thus served as the normative justification for the entire legal code. These utopian aretaic constructions are what make intelligible, give meaning or sense to, the laws as the “rule of law,” and thus it’s hard to see why we would want to characterize them as at all “extrinsic” to the law. Christopher Bobonich (2002) reiterates this point in Platonic terms:
“The word for ‘reason’ is ‘nous’ and that for law is ‘nomos,’ so Plato claims the support etymology for the link he asserts between reason and law. Since reason is itself divine [cf. Hegel’s Geist], god rules insofar as reason rules and reason can rule, if it finds expression in correct or just law. Reason ‘strives to become law ‘ (Laws 835E5) [a formulation Hegel endeavored to explain]…. [….] Reason has an inherent tendency to grasp what is best and to order things so as to bring them into the best condition. Reason in the individual soul grasps what is best for the individual and directs the person in the pursuit of it. Reason, as embodied in law, also pursues this ordering goal at the level of the city as a whole.” (Bobonich: 94-95)
There remain inevitable gaps, first, between the Forms and our utopian conceptions, and secondly, between such conceptions and any existing legal system (as reason takes intuitive, theoretical and practical forms), such that
“Even good law…falls short of being a complete expression of reason…. [….] [This is necessarily so because] law is relatively fixed and cast in general terms, so that it will fail in some case and circumstances to recommend what is best (Laws 875C3-D5, cf. Stsmn. 294A-296A). The failure of law stems from the fact that its directives cannot be as fine-grained and flexible as those issuing from living reason [which Plato attempted to capture as best as possible in the Socratic dialogues].” (96-97)
Knowing full well how law, in the end (some would say in the beginning as well), must resort to coercion to move citizens to act in conformity with its requirements, Plato sought to bring law in closer harmony with reason in general and the reasoning capacity of individual citizens in particular, thus the Athenian argues that instead of simply publicizing legislative edicts and threatening the citizens with the penalties that follow disobedience, the “better method is for the lawgiver to try to persuade (peithein) the citizens to act in the manner that the laws prescribe.” Commands sans explanation needlessly widen the distance between reason and law, so “Plato proposes attaching preludes (prooimia) to particular law and the legal code as a whole. Such preludes are an essential supplement to the bare commands of law in Magnesia” (Bobonich: 97). The lawgiver formulates the preludes so as to provide good epistemic reasons of the kind that enable the citizen to grasp “the fine and the good” that animate the law and facilitate the individual and collective flourishing that comes from a legal system designed to promote the incarnation of virtue among the citizens of the polis. The pedagogical purpose of the preludes presumes a willingness on the part of individuals to be “taught,” to make the effort to “learn,” to be open to rational persuasion. The lawgiver delineates the lineaments of laws motivated by the attempt to incarnate as far as possible what is fine, just, and good. In this respect, Plato anticipates Kant in evidencing what Bobonich calls a “striking concern for freedom and autonomy,” for “the idea that Magnesia’s citizens deserve to be treated as free people and benefit from such treatment is at the heart of Plato’s justification of preludes in the Laws” (203).
Speaking of Kant, his natural law philosophy and legal theory likewise makes plain the fact that law qua law, is conceptually, normatively and morally inextricably tied to justificatory reasons and standards of assessment that are in no way “external” to law. Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy (2009) will be our guide here, for he clearly articulates the manner in which Kant’s legal and political philosophy begins with “the simple but compelling idea that, as a matter of right, each person is entitled to be his or her own master…” (4). In other words, “The nature and justification of authority, the authorization to coerce, the significance of disagreement, political obedience, democracy and the rule of law arguable acquire their interest against some version of the assumption that each person is entitled to be his or her own master” (4). Practical metaphysics and reason will take us from a universal “innate right,” to “private right” and “public right” through “an articulation of the limits that each person’s claim to be his or her own master impose on the conduct of others,” for “each person’s entitlement to be his or her own master is only consistent with the entitlements of others if public legal institutions are in place.” Put differently, “the consistent exercise of the right to freedom by a plurality of persons cannot be conceived apart from a legal public order” (9). On this conception, a natural duty of justice, for example, cannot get off the ground or is somehow implicated in the recognition of what, for Kant, is a (metaphysical) Universal Principle of Right which
“says that ‘an action is right if can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with universal law.’ The universal principle generates each person’s ‘one innate right’ to freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law which ‘is the only original right belonging to every human being by virtue of his humanity.’” (13)
It is from this axiomatic metaphysical principle of “innate right “ that we ultimately derive (after establishing ‘private right’) the necessity of (the public right of) a constitutional legal order. Thus our conceptual, normative and moral meaning of law, the “why” of law, is derived from a metaphysically grounded innate right of humanity:
“Each enjoys the right to juridical equality innately, prior to any affirmative act to establish it. Your right to your own person guarantees that you are entitled to use your own powers as you see fit, consistent with the freedom of others to do the same. Innate right also includes the right to be ‘beyond reproach,’ to have only your own deeds imputed to you, and to be assumed innocent unless you have committed a wrong.” (17-18)
I won’t here recapitulate Kant’s argument for private right but suffice to say that for our purposes what stands out is the seemingly incontrovertible claim that
“…a system of private right without a public authority is morally incoherent, because the conceptual requirements of private right—the security of possession, clear boundaries between ‘mine and thine,’ and the acquisition of property—cannot be satisfied without a public authority entitled to make, apply, and enforce laws.” (23)
As Ripstein well explains, the coercive component of law, which is not identified with the sanction(s) of law, is justified on this account because it “takes the form of hindering a hindrance to freedom.” Furthermore, we should not reduce law to its coercive aspect or power if only because “So long as every person acts in conformity with the innate right of others, no coercion is used; the entitlement to coerce is simply the entitlement that others exercise their freedom consistent with your own.” This is not unrelated to the fact that people often internalize a commitment to obeying the law, voluntarily assuming an obligation to follow legal rules “irrespective of whether they risk punishment for breaking the law” (Tyler 2006: 3). This appears to entail a belief in the intrinsic moral legitimacy or justice of the rule of law, perhaps in part owing to the intuitive recognition that law is what makes possible the exercise of our innate right to freedom.
Ripstein concludes our discussion of Kant’s legal philosophy demonstrating, once more I think, that the “externalist/internalist” picture does little or nothing to further enhance our understanding of abstract normative and evaluative standards, be it justice or other moral values and principles:
“Kant follows the natural law tradition in treating the ideal case of a rightful condition as analytically basic, and all actual cases as defective instances of it. He takes the general strategy of focusing on the ideal case to a higher level of abstraction because of a general feature of normative concepts. To think of a way that something is supposed to be is always to compare it to an ideal of its kind. [….] The ideal case serves as a standard because it provides the only consistent way of organizing the use of power to guarantee everyone’s freedom under law.” (Ripstein: 202)
The late legal theorist and Scottish politician, Neil MacCormick, who came over time to have a fairly nuanced and generous appreciation of both natural law and legal positivist philosophies, wrote that
“laws, like other social institutions, are fully intelligible only by reference to the ends or values they ought to realize, and thus by reference to the intentions that those who participate in making or implementing them must at least purport to have. This does not entail any acceptance of substantive moral criteria as criteria of legal validity, but it does involve acknowledging the moral quality of the relevant ends and values, namely justice and the human good. It is as true of law that justice and the promotion of public good within the constraints of justice are the particular goods that make intelligible to us as a congeries of institutions and practices as it is true of art that its particular pointis the communication of aesthetic experience through creative originality. It is thus the case that laws we judge unjust or detrimental to the public good are that very account laws that we judge essentially deficient examples of the genus to which they belong, even though we may also judge them to belong validly to that genus.” (MacCormick in George, ed. 1992: 113)
It seems clear that the manner in which “intelligibility” is employed by MacCormick inextricably intertwines our conceptual, normative, and moral comprehension the meaning of both law and justice.
To speak of our standard of justice as “externally” applied in our normative assessment of the law lends the latter an instrumentalist character, and better describes what Ripstein rightly terms an “applied ethics approach to political philosophy,” that is, it “supposes that the law and the state are instruments for approximating underlying factors that really matter” (Ripstein: 7). On this rendering, “The only basis for setting up legal institutions is that they are likely to produce the best right results, as identified by external criteria, more often than they get the wrong ones” (8). The institutions of law, therefore, are nothing more than “tools for the indirect pursuit of something that can be fully specified without them” (9). Put differently, an instrumentalist conception conceives of law’s capacity or ability to serve the common good or justice, to give practical import to our inherent right to freedom, to be a purely contingent affair and not part of the law’s intrinsic value as law. In the natural law tradition, however, inquiry into the nature of law is at the same time and unavoidably or ultimately “a form of moral inquiry” (Simmonds: 6). Moral principles and values are, on this model, “immanent within our legal practice” (9). Our concept of law is not merely descriptive insofar as it has an ongoing normative role to play within the relevant practices that fall under the rubric of law. Simmonds quotes from Kant’s “Doctrine of Right” in his Metaphysics of Morals: “Kant observes that it is possible to conceive of a system containing only positive laws, but ‘a natural law would still have to precede it, which would establish the authority of the lawgiver.’ In this way he rejects the idea that positive law could be, as it were, self-grounding, or grounded in the fact of power alone: enactments can constitute law only in virtue of some deeper and inherently obligatory principles (natural laws) that lend their binding force to the enactments”(12). Thus understood, it is misleading if not incorrect to speak of an “externalist” natural law tradition: true law is our regnant conceptual norm, and all law is thus more, or less, true, that is, close or distant from the ideal.
We can’t make sense of the rule of law without implicitly drawing upon our normative conception of what law is (and thus should be), law by definition is thus parasitic upon our normative ideal. For Kant, this meant that the legal authority of our positive laws is derived from their capacity to realize the conditions for (the basic moral principle of) “jointly possible freedoms.” Law, in a fundamentally (or minimally) moral way, is the “set of conditions for possible freedoms.” Simmonds further fills out this fundamental Kantian insight:
“Law represents the only possible set of conditions within which one can live in community with others while enjoying some domain of entitlement that is secure from the power of others [as he writes elsewhere, ‘even a wicked regime will have good reason to grant citizens a perimeter of legal protections against interference’]. When a government pursues its objectives through the rule of law it governs consistently with those conditions. To show that a rule is law is to show that it forms part of a system of universality, necessity and independence: that is to say, a system of general rules and principles (universality) that are given peremptory force and are reliably enforced (necessity) as the only way in which political expression can be given to the ideal of peremptory force (given the circumstances of the real world). Such a system of reliably enforced rules represents the only conditions within which one can live [in the modern period at any rate] in political community and nevertheless enjoy a degree of freedom (independence) [a fact well appreciated by Hobbes]. The existence of such a domain requires that the law be enforced and therefore the value of such a domain justifies the law’s enforcement.” (143)
On this account, we see how sociological, doctrinal, and aspirational models or concepts of law are intimately and inextricably related to each other, even if, in practice, there’s a gap or disturbing distance between legal practice and our legal ideal, the latter providing an internal criterial standard for discerning that gap, for attempting to bridge, that distance. As Simmonds argues,
“even if law is in some respects manifest in established social practices, it may also be the embodiment of a certain ideal in the light of which those practices should be understood. Even if justice is an abstract standard against which our institutions are to be measured, it must also find some expression in our established juridical and ethical life if it to be more than an arbitrary postulate or empty figment.” (34-35)
So, our principles of justice, on this account, are not external in as much as they are in some sense and to some degree, immanent within our existing moral and juridical practices, or else their claim to be principles of justice would fall on deaf ears, would lack “meaning” for those subject to the rule of law, would have no claim upon us as legal subjects.
And nothing said to this point is tantamount to a refusal to recognize that law may be an instrument of evil, or that law may be followed and applied by those in power for purely self-serving reasons, such recognition being “fully compatible with law’s status as an intrinsically moral idea”(62). Simmonds argues that “the issue dividing the mundane and aspirational views of law concerns the serviceability of law for evil goals, not the serviceability of individual laws with the context of a system that we simply take for granted” (60). This is similar, at least in spirit, to what Lon Fuller intended by speaking of the “inner morality” of law and thus I would not, nor does Simmonds for that matter, share Brooks’ interpretation of what Fuller was up to (Larry May speaks to this issue in a manner I find persuasive). Justice is therefore not necessarily an external standard applicable to law, for we may speak of the principle of legality and the rule of law generally as an ideal in conformity with justice (procedural and otherwise): as when we (again with Simmonds) criticize governments and officials when they depart from these standards of legality, or when we critique duly enacted laws that confer unreasonable or unlimited discretion upon officials. Think too of “the principle of legality of crimes and punishment,” including but not limited to the principles of nullum crimen sine lege and nulla poena sine lege, aspects of which are identical or related to Fuller’s eight principles, the latter understood as morally minimalist criteria having to do with the effectiveness of law (please see Gallant in ‘References and Further Reading’ below as well May’s treatment of the procedural constraints and restraints on the rule of law: 202-207). As Larry May has explained, for law to be effective, there must be widespread acceptance, which is rightly linked to law’s normative justification. In other words, such acceptance involves an internalized belief in the rule of law as legitimate or justified such that there is motivation for obeying the law apart from its “coercive” dimension (and there’s compelling empirical evidence that people frequently or routinely obey the law for reasons other than the fact that disobedience can bring in its wake legal sanction or punishment):
“Moral legitimacy is crucial for any type of law since the law’s effectiveness is so losely linked with a person’s sense that the law is legitimate and the corresponding sense of obligation that a person feels. Without this sense of the binding effect of the law, there is nothing of moral importance that motivates people to obey law in the first place. Law’s effectiveness is dependent on the moral legitimacy of the law. [….] For law to be effective, [wide-scale acceptance should be linked to normative justification], but he acceptance is not what justifies the norms. Rather it is the moral legitimacy of law that both provides a justification for its enforcement and also creates wide-scale acceptance. There is a minimum moral or natural law content that laws must display [a proposition that H.L.A. Hart affirmed as well, referring to the human need for survival or self preservation and an equally Hobbesian-like need for security as the content of this moral minimalism] to be legitimate.” (May 2005: 65)
Minimalist or not, it is these fundamental moral principles “that make law worthy of being enforced. Such moral principles ultimately protect the inner normative core of law by guaranteeing that the law is, in some rudimentary way, fair” (May: 66). Simmonds highlights another feature of this moral content or ideal of law, reminding us that law frequently represents “the very antithesis of force and arbitrary power, even while we are uneasily aware that legal systems can sometimes appear to be no more than complex institutional systems wherein the rule of force is made more perfect, and power more encompassing and systematic” (the selfsame ‘appearance’ invoked in the anarchist critique of the State and the its legal apparatus) (Simmonds: 5). I suspect May would unreservedly endorse Simmond’s contention that the
“idea that governance by law is a lofty moral aspiration is a well-established feature of our ordinary, pre-theoretical outlook, not just the upshot of legal oversight or confusion. The positivists’ standard repertoire of arguments may serve to identify errors in the work of some who attack legal positivism, but the arguments look implausible when offered as an explanation of a prominent feature of our ordinary understanding [entailing, as it does, an appreciation, however intuitive or inchoate, of the fundamental moral value of the rule of law].” (41)
Thinking of constitutional government (or the State) as exemplifying the rule of law, that is, as addressing problems of collective action or coordinating our collective moral agency, encourages us to appreciate law’s fundamental “enabling” role (Holmes 1995), in which case the legal system as constitutionally established functions like the (constitutive) rules of grammar. In turn, we can now better understand how
“government’s compliance with the requirements of the rule of law is not best explained by considerations of instrumental efficacy. Rather, it must be explained by reference to a concern to maintain an intrinsically valuable form of moral association that is embodied in the rule of law, or by a desire hypocritically to assume the appearance of such a concern.” (Simmonds 66)
The argumentative speech of the personalized Athenian Laws in the Crito evidenced a Wttgensteinian-like ethical sensibility (cf. Kraut 1984) that Simmonds recovers and reiterates for our purposes: “Moral knowledge is…always in part a matter of familiarity with certain established modes of conduct, together with an application of the possibilities that they create or facilitate in practice” (151). Having been raised in societies conspicuous for the prominent place accorded the rule of law and the constitutional nature of the legal system, we may take the moral quality of law for granted, forgetting that “our ethical reflections always begin with a particular fabric of practice and judgment, and depend upon our education into that fabric,” law being one instance of such fabric (150).
In short, and to repeat a philosophical and moral insight common to Hobbes and Kant,
“the rule of law secures a good that is only to be realized and enjoyed in common. Liberty as independence from the power of others is a condition that can only be realized by that form of moral association that we call the ‘rule of law.’ This is not an individual good, access to which is regulated by the law and the just distribution of which is contingent upon the law’s content. It is a common good that is intrinsic to law’s nature.” (152)
In correspondence Professor Brooks has replied to my “critique,” part of which I copy below:
“[T]he worry seems to be that the external/internal distinction does not work because all natural law theories are to some effect ‘internalist’ and so my characterization is unfair and unfounded). In response, I’d say that even if we agreed that ‘justice is an abstract standard against which our institutions are to be measured’ and that this standard may ‘find some expression in our established juridical and ethical life’ (citing Simmonds in your comments) this seems to me consonant with the view that (a) we first determine what this standard of justice is,(b) this standard is then employed in the project of measuring the justice of our laws as we find them, and (c) in many cases we will find said standards embedded in important ways in our law. The crucial point is that this project is not one of saying what is a standard of justice is precisely those principles we find in law, but rather we determine the ‘abstract standard’ first and evaluate law second. Of course, a particular standard of justice may have compelling appeal given its deep embeddedness with the law as we find it, but the mere fact a principle is embedded need not entail the natural lawyer should accept it: after all, the law could be said to be home to many norms and not all of which may be said to cohere with any particular standard of justice.”
“Natural lawyers defend standards that are external to the law in order to survey the merits of law. Call these accounts theories of natural law externalism. Hegel offers a very different account where we survey the merits of law through a standard that is internal to law. This essay will explain Hegel’s natural law internalism and whether it marks an advance on existing natural law accounts. I will argue that Hegel offers us a novel understanding of natural law that is compelling, but ultimately unstable and problematic.”
Brooks proceeds to discuss and outline precisely what he means by “natural law externalism,” summarized as follows:
“Classical natural law externalism then might be said to adhere roughly
to five different criteria in its classic formulation:
1. We can distinguish between ‘law’ and ‘true’ law.
2. We can make this distinction by the standard of a standpoint of justice.
3. Law is more ‘true’ the closer is coheres with a standpoint of justice.
4. The standpoint of justice is external and applied in our normative
assessment of law.
5. ‘True’ law is universally and eternally true.”
Modern natural law likewise “externalist” in the above sense, hence there is a “common similarity: all member theories identify a normative criteria external to law and employ it in their assessments of law and legal systems.” And now the contrast class, first exemplified, it is argued, by Hegel:
“This family claims that the normative criteria by which we might assess and evaluate law and legal systems is to be found within the laws themselves, not external to them. This family is natural law internalism. Hegel’s legal philosophy is perhaps the first example of natural law internalism, although there are other more recent examples as well.”
In a note, Brooks cites Ronald Dworkin’s theory as a modern descendant of this family.
I’m not here concerned with the interpretive cogency or argumentative soundness of Brooks’ account of Hegel’s natural law theory (Brooks is a devoted scholar of Hegel’s work, so we have ample presumptive reason to benefit from his analysis), even less with whether or not it is true that Hegel’s natural law theory “is compelling, but ultimately unstable and problematic.” What does get my attention is the aforementioned characterization of the majority of classical and modern natural law theories as “externalist,” in particular, the claim that our standards of assessment, with regard to justice or, say, moral principles, are “external” to our understanding of the law in general or even to the legal system itself. What I find troubling or at least misleading about this description is that it serves to drive a wedge between our understanding and assessment of law qua law, and our understanding of justice. In other words, the conceptual and normative criteria brought to bear in explicating law, moral values, and justice in particular are intimately related to each other in much of the natural law tradition. To the extent that this is in fact the case, the “externalist” picture or metaphor fails to do justice to the role of reason, to moral intuition, and to moral values and principles generally common to both law and justice. In short, I think the internalist/externalist description of natural law theory is unavailing, a conclusion that, in some respects, places Hegel in closer proximity to the tradition(s) of classical and modern natural law theory, although I’m inclined to agree with Brooks that Hegel’s natural law theory remains rather peculiar in light of that tradition (Hobbes is likewise an anomalous natural law theorist, at least if we agree in the main with the recent and respective arguments of S.A. Lloyd and Perez Zagorin).
To explain why the “externalist” picture is misleading, I’ll rely largely on Nigel Simmond’s recent book, Law as a Moral Idea (2007), as well as, to a less extent, a recent argument by Larry May in his Crimes Against Humanity: A Normative Account (2005) (a work that proffers, by my lights, a more than plausible account of the role of jus cogens norms in international law, one not wholly beholden to a ‘consensually-based custom(s)’ account of their justification, permitting them to be universally binding in a way such accounts are not). In so doing, I hope to draw readers to the works of both Simmonds and May (the latter having recently completed a remarkable four volume series dealing with the morally normative foundations of international criminal law). Because Plato is arguably the first natural law theorist, or at least foreshadows natural law theory, I’ll say a few things about Plato’s understanding of the relation between the Forms (be it the Good in general or justice in particular) and law. To be clear, my primary purpose is to introduce the general arguments of May and especially Simmonds insofar as they have bearing upon natural law theory, not so much to critique Brooks’ argument in toto, so perhaps the motivation or underlying rationale behind the characterization of most of the classical and modern natural tradition as “externalist” is salvageable, given a particular stipulative or theoretical explication of the “externalist/internalist” distinction in a way that accommodates the natural law (or natural law-like) reasoning of Simmonds and May. With apologies to Brooks, I’ve thus invoked the terms of his paper as an excuse to introduce (i.e., give a fair hearing to) rather unfashionable arguments in the philosophy of law. The characterization natural law theory as “externalist” (owing to its criteria for assessment of law’s justice or conformity with particular moral principles and values) fails to accord sufficient appreciation of the conceptual and normative ties intrinsic to our comprehension of what law in fact is (conceptually, institutionally, and so forth) from the vantage points provided by natural law theory, as Simmonds and May enable us to see. This is true if only because the kinds of questions raised here are of the same type, if only at different levels of abstraction and determination, as those raised in our reflections on the nature of law and the purposes of the rule of and the legal system. And of course the topics, questions and answers are intimately bound up with each other. In other words, philosophical reflections on law and natural law, our normative conceptions, as well as our moral standards and criteria of evaluation or assessment are in possession of strong genetic family resemblance to each other, a fact obscured by the externalist/internalist distinction.
The “externalism/internalism” distinction seems to assume that we should divorce our analytical and conceptual enterprise from our normative endeavors (at topic about which Hegel has much to say!), thus justice is classified as entailing an “external” standpoint when in fact it is intrinsic to our conceptual understanding of law qua law, at least in the natural law tradition wherein law is, in Nigel Simmond’s felicitous phrase, and first and foremost, a “moral idea.” In other words, law as such possesses, by definition as it were, an intrinsic moral aspiration and thus to the extent it falls short of that aspiration, it fails to serve its fundamental function as law. In Simmond’s words, “an inquiry into law’s nature therefore requires us to draw upon our moral understanding” (Simmonds 2007: 4). An “externalist” perspective assumes a largely instrumentalist conception of law in the first instance, a conception that natural law theorists would deny, without denying that law often does function in largely instrumentalist fashion in the legal system. The possibility of a logical distinction between our description of the “idea of law” and our normative appreciation of the value of the “rule of law” should not license an untenable conceptual and moral divide in which law as legal practice is separate from law as collective moral aspiration. Law is therefore an intellectual archetype analogous to a Platonic Form (as understood by T.K. Seung or Iris Murdoch or Francisco Gonzalez or Christopher Bobonich) “to which actual instances of law merely approximate to various degrees,” in which case, “the idea of law might provide both the general criterion whereby instances of law count as such, and a guiding ideal by reference to which all such instance ought morally to be judged” (Simmonds: 52). The ideal polis or State (e.g., the Republic or the laws for Magnesia in the Laws) thus shows how the Form of Justice might or can be realized in concrete circumstances. Despite their ideal normative features, such utopian constructions invariably reveal sensitivity to, or are reflective of, time and place. At the same time, they also reveal the sundry strengths and weaknesses or idiosyncrasies (philosophical, psychological, what have you) of their authors (cf. the normative conceptual constructions or ‘Euclidean models’ of Gandhi’s ideal polity or Rama Rajya, which invoked such ideal formulations as satya and ahimsa, satyagraha, swaraj, sarvodaya, nai talim, swadeshi, and gram rajya). Betwixt and between the intuited Forms, to which every adult with the capacity to reason has some access to, however dim or inchoate, and which are too abstract and indeterminate to function as direct normative standards and actual polities or States and their laws, are those utopian constructions (in ‘words’ or discourse) that draw upon reason (and methods like ‘reflective equilibrium’) in formulating normative criteria for assessing the degree to which our laws embody or instantiate the Form(s). These are not to be understood as architectonic blueprints for our legal systems in the sense that they represent or require definitive realization or concretization (on the order, say, of Hegelian Sittlichkeit, in which case there is no gap between Sollen and Sein). The apex of morality—or justice or the Good—as symbolized by the Forms, remain relevant in spite of the fact that it may never be wholly instantiated or embodied, indeed, that accounts for its continuing relevance as a normative standard, its ongoing function as the intuitive foundation for our utopian constructions. Assuming that the rule of law is integral to any plausible conception of a good political order, William Galston here fills out the role of utopian constructions that “mediate” between our Forms and actually existing legal systems (not unlike the ‘middle axioms’ of Sidgwick):
“Utopian thought attempts to specify and justify the principles of a comprehensively good political order. [….] Whatever their basis, the principles of the political good share certain general features:
· First, utopian principles are in their intention universally valid, temporally and geographically.
· Second, the idea of the good order arises out of our experience but does not mirror it in any simple way and is not circumscribed by it. Imagination may combine elements of experience into a new totality that has never existed; reason, seeking to reconcile the contradictions of experience, may transmute its elements.
· Third, utopias exist in speech; they are “cities of words.” This does not mean that they cannot exist but only that they need not ever. This “counterfactuality” of utopia in no way impedes its evaluative function.
· Fourth, utopian principles may come to be realized in history, and it may be possible to point to real forces pushing in that direction. But our approval of a utopia is not logically linked to the claim that history is bringing us closer to it or that we can identify an existing basis for the transformative actions that would bring it into being. Conversely, history cannot by itself validate principles. The movement of history (if it is a meaningful totality in any sense at all) may be from the most desirable to the less; the proverbial dustbin may contain much of enduring worth.
· Fifth, although not confined to actual existence, the practical intention of utopia requires that it be constrained by possibility. Utopia is realistic in that it assumes human and material preconditions that are neither logically nor empirically impossible, even though their simultaneous co-presence may be both unlikely and largely beyond human control to effect.
· Sixth, although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….] Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.” (Galston 1980: 15-16)
The Platonic construction of normative utopian models, like the Gandhian model of Ram Rajya, are not intended to point to some future political reality or indicate decisive historical telos, rather, they serve to remind us of both the indeterminacy of Platonic Forms that inspire or motivate utopian discourse and the significance of contingent historical conditions and political variables that make for relativity and plurality, as well as the necessity of judgment, in the domain of realization (or positivization). All the same, they remain indispensable to the critical political and legal tasks of specification, justification, and evaluation as adumbrated above by Galston. Plato’s particular utopian models in (The) Republic and (The) Laws were based on conceptions of virtue found in the Greek tradition metaphysically grounded in the Forms (or the Form, the Good) and thus served as the normative justification for the entire legal code. These utopian aretaic constructions are what make intelligible, give meaning or sense to, the laws as the “rule of law,” and thus it’s hard to see why we would want to characterize them as at all “extrinsic” to the law. Christopher Bobonich (2002) reiterates this point in Platonic terms:
“The word for ‘reason’ is ‘nous’ and that for law is ‘nomos,’ so Plato claims the support etymology for the link he asserts between reason and law. Since reason is itself divine [cf. Hegel’s Geist], god rules insofar as reason rules and reason can rule, if it finds expression in correct or just law. Reason ‘strives to become law ‘ (Laws 835E5) [a formulation Hegel endeavored to explain]…. [….] Reason has an inherent tendency to grasp what is best and to order things so as to bring them into the best condition. Reason in the individual soul grasps what is best for the individual and directs the person in the pursuit of it. Reason, as embodied in law, also pursues this ordering goal at the level of the city as a whole.” (Bobonich: 94-95)
There remain inevitable gaps, first, between the Forms and our utopian conceptions, and secondly, between such conceptions and any existing legal system (as reason takes intuitive, theoretical and practical forms), such that
“Even good law…falls short of being a complete expression of reason…. [….] [This is necessarily so because] law is relatively fixed and cast in general terms, so that it will fail in some case and circumstances to recommend what is best (Laws 875C3-D5, cf. Stsmn. 294A-296A). The failure of law stems from the fact that its directives cannot be as fine-grained and flexible as those issuing from living reason [which Plato attempted to capture as best as possible in the Socratic dialogues].” (96-97)
Knowing full well how law, in the end (some would say in the beginning as well), must resort to coercion to move citizens to act in conformity with its requirements, Plato sought to bring law in closer harmony with reason in general and the reasoning capacity of individual citizens in particular, thus the Athenian argues that instead of simply publicizing legislative edicts and threatening the citizens with the penalties that follow disobedience, the “better method is for the lawgiver to try to persuade (peithein) the citizens to act in the manner that the laws prescribe.” Commands sans explanation needlessly widen the distance between reason and law, so “Plato proposes attaching preludes (prooimia) to particular law and the legal code as a whole. Such preludes are an essential supplement to the bare commands of law in Magnesia” (Bobonich: 97). The lawgiver formulates the preludes so as to provide good epistemic reasons of the kind that enable the citizen to grasp “the fine and the good” that animate the law and facilitate the individual and collective flourishing that comes from a legal system designed to promote the incarnation of virtue among the citizens of the polis. The pedagogical purpose of the preludes presumes a willingness on the part of individuals to be “taught,” to make the effort to “learn,” to be open to rational persuasion. The lawgiver delineates the lineaments of laws motivated by the attempt to incarnate as far as possible what is fine, just, and good. In this respect, Plato anticipates Kant in evidencing what Bobonich calls a “striking concern for freedom and autonomy,” for “the idea that Magnesia’s citizens deserve to be treated as free people and benefit from such treatment is at the heart of Plato’s justification of preludes in the Laws” (203).
Speaking of Kant, his natural law philosophy and legal theory likewise makes plain the fact that law qua law, is conceptually, normatively and morally inextricably tied to justificatory reasons and standards of assessment that are in no way “external” to law. Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy (2009) will be our guide here, for he clearly articulates the manner in which Kant’s legal and political philosophy begins with “the simple but compelling idea that, as a matter of right, each person is entitled to be his or her own master…” (4). In other words, “The nature and justification of authority, the authorization to coerce, the significance of disagreement, political obedience, democracy and the rule of law arguable acquire their interest against some version of the assumption that each person is entitled to be his or her own master” (4). Practical metaphysics and reason will take us from a universal “innate right,” to “private right” and “public right” through “an articulation of the limits that each person’s claim to be his or her own master impose on the conduct of others,” for “each person’s entitlement to be his or her own master is only consistent with the entitlements of others if public legal institutions are in place.” Put differently, “the consistent exercise of the right to freedom by a plurality of persons cannot be conceived apart from a legal public order” (9). On this conception, a natural duty of justice, for example, cannot get off the ground or is somehow implicated in the recognition of what, for Kant, is a (metaphysical) Universal Principle of Right which
“says that ‘an action is right if can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with universal law.’ The universal principle generates each person’s ‘one innate right’ to freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law which ‘is the only original right belonging to every human being by virtue of his humanity.’” (13)
It is from this axiomatic metaphysical principle of “innate right “ that we ultimately derive (after establishing ‘private right’) the necessity of (the public right of) a constitutional legal order. Thus our conceptual, normative and moral meaning of law, the “why” of law, is derived from a metaphysically grounded innate right of humanity:
“Each enjoys the right to juridical equality innately, prior to any affirmative act to establish it. Your right to your own person guarantees that you are entitled to use your own powers as you see fit, consistent with the freedom of others to do the same. Innate right also includes the right to be ‘beyond reproach,’ to have only your own deeds imputed to you, and to be assumed innocent unless you have committed a wrong.” (17-18)
I won’t here recapitulate Kant’s argument for private right but suffice to say that for our purposes what stands out is the seemingly incontrovertible claim that
“…a system of private right without a public authority is morally incoherent, because the conceptual requirements of private right—the security of possession, clear boundaries between ‘mine and thine,’ and the acquisition of property—cannot be satisfied without a public authority entitled to make, apply, and enforce laws.” (23)
As Ripstein well explains, the coercive component of law, which is not identified with the sanction(s) of law, is justified on this account because it “takes the form of hindering a hindrance to freedom.” Furthermore, we should not reduce law to its coercive aspect or power if only because “So long as every person acts in conformity with the innate right of others, no coercion is used; the entitlement to coerce is simply the entitlement that others exercise their freedom consistent with your own.” This is not unrelated to the fact that people often internalize a commitment to obeying the law, voluntarily assuming an obligation to follow legal rules “irrespective of whether they risk punishment for breaking the law” (Tyler 2006: 3). This appears to entail a belief in the intrinsic moral legitimacy or justice of the rule of law, perhaps in part owing to the intuitive recognition that law is what makes possible the exercise of our innate right to freedom.
Ripstein concludes our discussion of Kant’s legal philosophy demonstrating, once more I think, that the “externalist/internalist” picture does little or nothing to further enhance our understanding of abstract normative and evaluative standards, be it justice or other moral values and principles:
“Kant follows the natural law tradition in treating the ideal case of a rightful condition as analytically basic, and all actual cases as defective instances of it. He takes the general strategy of focusing on the ideal case to a higher level of abstraction because of a general feature of normative concepts. To think of a way that something is supposed to be is always to compare it to an ideal of its kind. [….] The ideal case serves as a standard because it provides the only consistent way of organizing the use of power to guarantee everyone’s freedom under law.” (Ripstein: 202)
The late legal theorist and Scottish politician, Neil MacCormick, who came over time to have a fairly nuanced and generous appreciation of both natural law and legal positivist philosophies, wrote that
“laws, like other social institutions, are fully intelligible only by reference to the ends or values they ought to realize, and thus by reference to the intentions that those who participate in making or implementing them must at least purport to have. This does not entail any acceptance of substantive moral criteria as criteria of legal validity, but it does involve acknowledging the moral quality of the relevant ends and values, namely justice and the human good. It is as true of law that justice and the promotion of public good within the constraints of justice are the particular goods that make intelligible to us as a congeries of institutions and practices as it is true of art that its particular pointis the communication of aesthetic experience through creative originality. It is thus the case that laws we judge unjust or detrimental to the public good are that very account laws that we judge essentially deficient examples of the genus to which they belong, even though we may also judge them to belong validly to that genus.” (MacCormick in George, ed. 1992: 113)
It seems clear that the manner in which “intelligibility” is employed by MacCormick inextricably intertwines our conceptual, normative, and moral comprehension the meaning of both law and justice.
To speak of our standard of justice as “externally” applied in our normative assessment of the law lends the latter an instrumentalist character, and better describes what Ripstein rightly terms an “applied ethics approach to political philosophy,” that is, it “supposes that the law and the state are instruments for approximating underlying factors that really matter” (Ripstein: 7). On this rendering, “The only basis for setting up legal institutions is that they are likely to produce the best right results, as identified by external criteria, more often than they get the wrong ones” (8). The institutions of law, therefore, are nothing more than “tools for the indirect pursuit of something that can be fully specified without them” (9). Put differently, an instrumentalist conception conceives of law’s capacity or ability to serve the common good or justice, to give practical import to our inherent right to freedom, to be a purely contingent affair and not part of the law’s intrinsic value as law. In the natural law tradition, however, inquiry into the nature of law is at the same time and unavoidably or ultimately “a form of moral inquiry” (Simmonds: 6). Moral principles and values are, on this model, “immanent within our legal practice” (9). Our concept of law is not merely descriptive insofar as it has an ongoing normative role to play within the relevant practices that fall under the rubric of law. Simmonds quotes from Kant’s “Doctrine of Right” in his Metaphysics of Morals: “Kant observes that it is possible to conceive of a system containing only positive laws, but ‘a natural law would still have to precede it, which would establish the authority of the lawgiver.’ In this way he rejects the idea that positive law could be, as it were, self-grounding, or grounded in the fact of power alone: enactments can constitute law only in virtue of some deeper and inherently obligatory principles (natural laws) that lend their binding force to the enactments”(12). Thus understood, it is misleading if not incorrect to speak of an “externalist” natural law tradition: true law is our regnant conceptual norm, and all law is thus more, or less, true, that is, close or distant from the ideal.
We can’t make sense of the rule of law without implicitly drawing upon our normative conception of what law is (and thus should be), law by definition is thus parasitic upon our normative ideal. For Kant, this meant that the legal authority of our positive laws is derived from their capacity to realize the conditions for (the basic moral principle of) “jointly possible freedoms.” Law, in a fundamentally (or minimally) moral way, is the “set of conditions for possible freedoms.” Simmonds further fills out this fundamental Kantian insight:
“Law represents the only possible set of conditions within which one can live in community with others while enjoying some domain of entitlement that is secure from the power of others [as he writes elsewhere, ‘even a wicked regime will have good reason to grant citizens a perimeter of legal protections against interference’]. When a government pursues its objectives through the rule of law it governs consistently with those conditions. To show that a rule is law is to show that it forms part of a system of universality, necessity and independence: that is to say, a system of general rules and principles (universality) that are given peremptory force and are reliably enforced (necessity) as the only way in which political expression can be given to the ideal of peremptory force (given the circumstances of the real world). Such a system of reliably enforced rules represents the only conditions within which one can live [in the modern period at any rate] in political community and nevertheless enjoy a degree of freedom (independence) [a fact well appreciated by Hobbes]. The existence of such a domain requires that the law be enforced and therefore the value of such a domain justifies the law’s enforcement.” (143)
On this account, we see how sociological, doctrinal, and aspirational models or concepts of law are intimately and inextricably related to each other, even if, in practice, there’s a gap or disturbing distance between legal practice and our legal ideal, the latter providing an internal criterial standard for discerning that gap, for attempting to bridge, that distance. As Simmonds argues,
“even if law is in some respects manifest in established social practices, it may also be the embodiment of a certain ideal in the light of which those practices should be understood. Even if justice is an abstract standard against which our institutions are to be measured, it must also find some expression in our established juridical and ethical life if it to be more than an arbitrary postulate or empty figment.” (34-35)
So, our principles of justice, on this account, are not external in as much as they are in some sense and to some degree, immanent within our existing moral and juridical practices, or else their claim to be principles of justice would fall on deaf ears, would lack “meaning” for those subject to the rule of law, would have no claim upon us as legal subjects.
And nothing said to this point is tantamount to a refusal to recognize that law may be an instrument of evil, or that law may be followed and applied by those in power for purely self-serving reasons, such recognition being “fully compatible with law’s status as an intrinsically moral idea”(62). Simmonds argues that “the issue dividing the mundane and aspirational views of law concerns the serviceability of law for evil goals, not the serviceability of individual laws with the context of a system that we simply take for granted” (60). This is similar, at least in spirit, to what Lon Fuller intended by speaking of the “inner morality” of law and thus I would not, nor does Simmonds for that matter, share Brooks’ interpretation of what Fuller was up to (Larry May speaks to this issue in a manner I find persuasive). Justice is therefore not necessarily an external standard applicable to law, for we may speak of the principle of legality and the rule of law generally as an ideal in conformity with justice (procedural and otherwise): as when we (again with Simmonds) criticize governments and officials when they depart from these standards of legality, or when we critique duly enacted laws that confer unreasonable or unlimited discretion upon officials. Think too of “the principle of legality of crimes and punishment,” including but not limited to the principles of nullum crimen sine lege and nulla poena sine lege, aspects of which are identical or related to Fuller’s eight principles, the latter understood as morally minimalist criteria having to do with the effectiveness of law (please see Gallant in ‘References and Further Reading’ below as well May’s treatment of the procedural constraints and restraints on the rule of law: 202-207). As Larry May has explained, for law to be effective, there must be widespread acceptance, which is rightly linked to law’s normative justification. In other words, such acceptance involves an internalized belief in the rule of law as legitimate or justified such that there is motivation for obeying the law apart from its “coercive” dimension (and there’s compelling empirical evidence that people frequently or routinely obey the law for reasons other than the fact that disobedience can bring in its wake legal sanction or punishment):
“Moral legitimacy is crucial for any type of law since the law’s effectiveness is so losely linked with a person’s sense that the law is legitimate and the corresponding sense of obligation that a person feels. Without this sense of the binding effect of the law, there is nothing of moral importance that motivates people to obey law in the first place. Law’s effectiveness is dependent on the moral legitimacy of the law. [….] For law to be effective, [wide-scale acceptance should be linked to normative justification], but he acceptance is not what justifies the norms. Rather it is the moral legitimacy of law that both provides a justification for its enforcement and also creates wide-scale acceptance. There is a minimum moral or natural law content that laws must display [a proposition that H.L.A. Hart affirmed as well, referring to the human need for survival or self preservation and an equally Hobbesian-like need for security as the content of this moral minimalism] to be legitimate.” (May 2005: 65)
Minimalist or not, it is these fundamental moral principles “that make law worthy of being enforced. Such moral principles ultimately protect the inner normative core of law by guaranteeing that the law is, in some rudimentary way, fair” (May: 66). Simmonds highlights another feature of this moral content or ideal of law, reminding us that law frequently represents “the very antithesis of force and arbitrary power, even while we are uneasily aware that legal systems can sometimes appear to be no more than complex institutional systems wherein the rule of force is made more perfect, and power more encompassing and systematic” (the selfsame ‘appearance’ invoked in the anarchist critique of the State and the its legal apparatus) (Simmonds: 5). I suspect May would unreservedly endorse Simmond’s contention that the
“idea that governance by law is a lofty moral aspiration is a well-established feature of our ordinary, pre-theoretical outlook, not just the upshot of legal oversight or confusion. The positivists’ standard repertoire of arguments may serve to identify errors in the work of some who attack legal positivism, but the arguments look implausible when offered as an explanation of a prominent feature of our ordinary understanding [entailing, as it does, an appreciation, however intuitive or inchoate, of the fundamental moral value of the rule of law].” (41)
Thinking of constitutional government (or the State) as exemplifying the rule of law, that is, as addressing problems of collective action or coordinating our collective moral agency, encourages us to appreciate law’s fundamental “enabling” role (Holmes 1995), in which case the legal system as constitutionally established functions like the (constitutive) rules of grammar. In turn, we can now better understand how
“government’s compliance with the requirements of the rule of law is not best explained by considerations of instrumental efficacy. Rather, it must be explained by reference to a concern to maintain an intrinsically valuable form of moral association that is embodied in the rule of law, or by a desire hypocritically to assume the appearance of such a concern.” (Simmonds 66)
The argumentative speech of the personalized Athenian Laws in the Crito evidenced a Wttgensteinian-like ethical sensibility (cf. Kraut 1984) that Simmonds recovers and reiterates for our purposes: “Moral knowledge is…always in part a matter of familiarity with certain established modes of conduct, together with an application of the possibilities that they create or facilitate in practice” (151). Having been raised in societies conspicuous for the prominent place accorded the rule of law and the constitutional nature of the legal system, we may take the moral quality of law for granted, forgetting that “our ethical reflections always begin with a particular fabric of practice and judgment, and depend upon our education into that fabric,” law being one instance of such fabric (150).
In short, and to repeat a philosophical and moral insight common to Hobbes and Kant,
“the rule of law secures a good that is only to be realized and enjoyed in common. Liberty as independence from the power of others is a condition that can only be realized by that form of moral association that we call the ‘rule of law.’ This is not an individual good, access to which is regulated by the law and the just distribution of which is contingent upon the law’s content. It is a common good that is intrinsic to law’s nature.” (152)
In correspondence Professor Brooks has replied to my “critique,” part of which I copy below:
“[T]he worry seems to be that the external/internal distinction does not work because all natural law theories are to some effect ‘internalist’ and so my characterization is unfair and unfounded). In response, I’d say that even if we agreed that ‘justice is an abstract standard against which our institutions are to be measured’ and that this standard may ‘find some expression in our established juridical and ethical life’ (citing Simmonds in your comments) this seems to me consonant with the view that (a) we first determine what this standard of justice is,(b) this standard is then employed in the project of measuring the justice of our laws as we find them, and (c) in many cases we will find said standards embedded in important ways in our law. The crucial point is that this project is not one of saying what is a standard of justice is precisely those principles we find in law, but rather we determine the ‘abstract standard’ first and evaluate law second. Of course, a particular standard of justice may have compelling appeal given its deep embeddedness with the law as we find it, but the mere fact a principle is embedded need not entail the natural lawyer should accept it: after all, the law could be said to be home to many norms and not all of which may be said to cohere with any particular standard of justice.”
The determination of the abstract standard here is one with determining the abstract for what counts as law as well. The fact that the law “could be said to be home to many norms and not all of which may be said to cohere with any particular standard of justice” is an empirical claim that in no way alters the fundamental conceptual and normative enterprise that finds our standard of justice and moral criteria for evaluation of law to be integrally bound up with our understanding of what law is, should, and can be. It simply does not make sense on this account to accord metaphysical, ontological or simply practical priority (i.e., that ‘we first determine what this standard of justice is’) to determining our standard of justice if only because such determination is of a piece with what counts for law, for our understanding of the meaning, value(s) and purpose(s) of law. Of course we evaluate existing laws and legal systems with our abstract standard of justice or according to moral criteria but this normative exercise is relevant only because it speaks to the nature of law, to law as “moral aspiration,” to our understanding of law as representing the ongoing struggle to give shape or form to our conceptions and types of justice: procedural, retributive, corrective (or rectificatory), commutative, distributive, “protective’ (Kant). Indeed, these forms of justice enable us to make sense of the kinds of law: constitutional, contract, tort, criminal, administrative, and so forth.
In conclusion, I think the characterization of “natural law externalism” is a misleading if not incorrect account of the intrinsic (conceptual, normative and) moral nature of law as found in the natural law tradition, although we’ve hardly canvassed the whole array of such theories to make the claim a robust and persuasive argument. There may well be “externalist” accounts of natural law theory in Brooks’ sense, but if so, I suspect this would amount to a fatal concession to the legal positivist critique of the natural law tradition. Finally, even if legality and justice are distinct concepts and values, let us take care to consider what it means to state that “each of these two values can be fully realized only in conjunction with the other” (Simmonds: 198).
References and Further Reading:
In conclusion, I think the characterization of “natural law externalism” is a misleading if not incorrect account of the intrinsic (conceptual, normative and) moral nature of law as found in the natural law tradition, although we’ve hardly canvassed the whole array of such theories to make the claim a robust and persuasive argument. There may well be “externalist” accounts of natural law theory in Brooks’ sense, but if so, I suspect this would amount to a fatal concession to the legal positivist critique of the natural law tradition. Finally, even if legality and justice are distinct concepts and values, let us take care to consider what it means to state that “each of these two values can be fully realized only in conjunction with the other” (Simmonds: 198).
References and Further Reading:
- Audi, Robert. The Good in the Right: A Theory of Intuition and Intrinsic Value. Princeton, NJ: Princeton University Press, 2004.
- Bix, Brian H. “Natural Law: The Modern Tradition,” in Jules Coleman and Scott Shapiro, eds. The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press, 2002: 61-103.
- Bobonich, Christopher. Plato’s Utopia Recast: His Later Ethics and Politics. New York: Oxford University Press, 2002.
- Brooks, Thom. “Natural Law Internalism” (December 10, 2010). Available at SSRN: http://ssrn.com/abstract=1723196 .
- Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
- Farrelly, Colin and Lawrence B. Solum, eds. Virtue Jurisprudence. New York: Palgrave Macmillan, 2008.
- Finnis, John. Natural Law and Natural Rights. Oxford, UK: Clarendon Press, 1982 ed.
- Finnis, John. Aquinas: Moral, Political, and Legal Theory. Oxford, UK: Oxford University Press, 1998.
- Finnis, John. “Natural Law Theories,” The Stanford Encyclopedia of Philosophy (Spring 2007), Edward N. Zalta (ed.), URL =http://plato.stanford.edu/archives/spr2007/entries/natural-law-theories/.
- Fuller, Lon. The Inner Morality of Law. New Haven, CT: Yale University Press, revised ed., 1969.
- Gallant, Kenneth S. The Principle of Legality in International and Comparative Criminal Law. Cambridge, UK: Cambridge University Press, 2009.
- Galston, William A. Justice and the Human Good. Chicago, IL: University of Chicago Press, 1980.
- George, Robert P. In Defense of Natural Law. New York: Oxford University Press, 1999.
- George, Robert P., ed. Natural Law Theory: Contemporary Essays. Oxford, UK: Clarendon Press, 1992.
- Gonzalez, Francisco J. Dialectic and Dialogue: Plato’s Practice of Philosophical Inquiry. Evanston, IL: Northwestern University Press, 19998.
- Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, UK: Cambridge University Press, 1996.
- Hart, H.L.A. The Concept of Law. Oxford, UK: Clarendon Press, 2nd ed., 1991.
- Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy. Chicago, IL: University of Chicago Press, 1995.
- Iyer, Raghavan. “The Open Texture of Natural Law,” in his Parapolitics: Toward the City of Man. New York: Oxford University Press, 1979, pp. 50-60.
- Kainz, Howard P. Natural Law: An Introduction and Re-examination. Chicago, IL: Open Court, 2004.
- Kraut, Richard. Socrates and the State. Princeton, NJ: Princeton University Press, 1984.
- Lloyd, S.A. Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature. Cambridge, UK: Cambridge University Press, 2009.
- May, Larry. Crimes Against Humanity: A Normative Account. Cambridge, UK: Cambridge University Press, 2005.
- Murdoch, Iris. Metaphysics as a Guide to Morals. London: Penguin Books, 1993.
- Murphy, Mark C. Natural Law and Practical Rationality. Cambridge, UK: Cambridge University Press, 2001.
- Murphy, Mark C. “The Natural Law Tradition in Ethics,” The Stanford Encyclopedia of Philosophy, (Winter 2002), Edward N. Zalta (ed.), URL =http://plato.stanford.edu/archives/win2002/entries/natural-law-ethics/ .
- Paul, Ellen Frankel, Fred D. Miller, Jr., and Jeffrey Paul, eds. Natural Law and Modern Moral Philosophy. Cambridge, UK: Cambridge University Press, 2001.
- Ripstein, Arthur. Force and Freedom: Kant’s Legal and Political Philosophy. Cambridge, MA: Harvard University Press, 2009.
- Seung, T.K. Intuition and Construction: The Foundation of Normative Theory. New Haven, CT: Yale University Press, 1993.
- Simmonds, Nigel. Law as a Moral Idea. New York: Oxford University Press, 2007.
- Tamanaha, Brian Z. Law as a Means to an End: Threat to the Rule of Law. Cambridge, UK: Cambridge University Press, 2006.
- Tyler, Tom R. Why People Obey the Law. Princeton, NJ: Princeton University Press, 2006.
- Wedgwood, Ralph. The Nature of Normativity. New York: Oxford University Press, 2007.
- Weinrib, Ernest J. “Legal Formalism: On the Immanent Rationality of Law,” Yale Law Journal, 97 (1989): 949-1016.
- Zagorin, Perez. Hobbes and the Law of Nature. Princeton, NJ: Princeton University Press, 2009.
posted by Patrick S. O'Donnell at 3:36 PM
1 Comments:
My thanks again to Patrick for his helpful comments which I will think more about in addition to my earlier reply. I look forward to seeing what other readers think.
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