The Nature of Law

Robert P. George’s “ What is
Law? A Century of Arguments ” (April) will be a wonderful
addition to my philosophy of law course this fall, but it
accepts too easily H. L. A. Hart’s positivist desire for
a “conceptual separation” between morality and law. Contrary
to the thrust of Professor George’s piece, such a separation
is not merely “descriptive” or “methodological.” It is also
institutional and thus has important practical effects.
Let me mention a few.

Hart is not a complete skeptic, as Prof. George points out. He agrees that
we may have moral duties not to enact or obey unjust laws. But for him those
laws remain “valid though illicit,” to use the terminology of another tradition.
In Hart’s own terms, morality imposes duties but not disabilities on the legal
order, thus granting that order a large measure of institutional autonomy”just
as the traditional duties of international law leave intact the domestic validity
of laws that violate those duties.

For example, even assuming that Roe v. Wade unjustly discriminates against
unborn children, this argument would count merely as a moral objection for Hart
and would thus be rightly excluded from the courtroom during a trial, say, of
nonviolent rescuers at an abortion clinic. And, of course, the argument forms
no basis for appeal of a conviction.

By contrast, Pope John Paul II reiterated a traditional natural law thesis
in Evangelium Vitae when he stated that “a law which violates an innocent
person’s natural right to life is unjust and, as such, is not valid as a law.”
Since, in this view, Roe is invalid, unborn children continue to enjoy
legal protection under U.S. law. And a rescuer can make an argument in court
that he could trespass if necessary to save their lives. If the judge refuses
to listen, the defendant has a legal right to appeal. In the same way, today’s
international human rights activists wish individuals to be legally able to
rely directly on supranational norms, with courts treating as invalid all contrary
domestic norms.

Of course, if the judges are Hart­ ians, the Johnpaulinian rescuers will still
end up in jail. Even so, their and their supporters’ morale will be strengthened
by the knowledge that they were put there illegally as well as immorally. In
order to see fully the practical effects of the Pope’s approach, however, we
should ask what would happen if our judges also came to agree that a truly unjust
decision of the Supreme Court is not valid.

Richard Stith
Valparaiso University Law School
Valparaiso, Indiana

Robert P. George offers a valuable and clearheaded discussion of a century’s
exploration of the nature of law. I have no significant disagreements with his
essay, and would offer only these points by way of elaboration and response.

Many (not all) of the debates between “positivists” and “natural lawyers” are
largely semantic; very little turns on them. Hart, for example, sought to sort
out the conditions under which law counts as such, without saying that we have
reason to follow or accept whatever counts as law. In separating the question
of what law is from the question of what law ought to be, Hart aimed, in fact,
to facilitate moral criticism of the law.

Many people, including Lon Fuller, seem to have been alarmed that extremely
unjust law could, on Hart’s view, count as law. But if we are permitted to criticize
and even to disobey extremely unjust law, why is it important to deny that unjust
law is law? This seems to be mostly a rhetorical question. I admire Professor
George’s nicely put suggestion that “just positive law is derived from the natural
law”; he rightly suggests that we distinguish between just positive law and
law, and treat the latter as such even if we reject it in principle.

But Lon Fuller does have a interesting, limited response, and that response
is worth some attention here. Fuller argues that law as such has its own “internal
morality,” and that a Nazi system (for example) fails to qualify as law because
it does not comport with that internal morality. Fuller urges that a legal system
requires, among other things, laws a) that are clear and specific rather than
vague and general; b) that are not contradictory, so that citizens can conform
their behavior to them; c) that are not retroactive; and d) that operate in
the world as they do on the books. Fuller’s great contribution was to show that
systems of fascism and communism are unlikely to qualify as “law,” not because
the systems are unjust (though of course they are), but because they do not
comply with the internal morality that any legal system must satisfy. For Fuller,
law’s internal morality is “thin”; but it is nonetheless extremely important.
I would be much interested in hearing Prof. George’s comments on Fuller’s thinking
here.

It seems to me that Prof. George underplays Ronald Dworkin’s most important
contribution, which involves not his controversial views about constitutional
law but his claims about “what the law is.” Dworkin says (to oversimplify a
complex set of claims) that any statement about what the law is has a backward“looking
dimension, but also embeds a judgment of principle. For Dworkin, a statement
that “the law is X” is an effort to make “the best constructive sense” out of
past legal events. We have to “fit” the past, rather than ignore it. On Dworkin’s
view, any statement about the content of law must be based on an acknowledgment
of a duty of fidelity to the past. At the same time, there may be several interpretations
that “fit,” and in the event that we can fit the past in multiple ways, we inevitably
try to make the best sense out of it, rather than nonsense. For example, it
would be possible to criticize Roe v. Wade on the ground that it does
not fit with preexisting legal materials; it would also be possible to criticize
Roe v. Wade on the ground that even if it fits with those materials,
it does not make sense out of them. I think that Dworkin is making an important
contribution here, one with which positivists do not disagree, and one with
which natural lawyers should (it seems to me) have no complaint. Dworkin is
not really answering Hart’s question: What is law? Instead he is asking: When
people interpret the law, what are they doing? To the extent that Dworkin is
right, he is showing some of the reasons why people disagree about legal issues,
including large constitutional issues. They disagree about the issue of fit.
And they disagree about what makes best sense of the past.

This seems to me to illuminate many of our current controversies about the
content of law. Dworkin also raises questions for Oliver Wendell Holmes, who
is, in The Path of the Law , too much of a realist (for reasons given
by Prof. George). If economics is not the only future for law (and it is not),
this is because economics doesn’t always fit with past legal practice, and doesn’t
always make sense of it. As a judge, by the way, Holmes paid far too little
attention to fit”a problem also for Justices William O. Douglas and Antonin
Scalia, both of whom, for all their differences, have the vice of liking to
strike out on paths not of the law but of their own.

An interesting feature of Fuller’s “thin” account of law’s internal morality
is that diverse people can unite around it. Liberals and conservatives, Christians
and Jews, utilitarians and Kantians, fundamentalists and atheists, environmentalists
and property rights enthusiasts”all these can agree that a legal system worthy
of the name must comply with Fuller’s requirements. There is a large lesson
here, one that has played a significant but underappreciated role in the last
century’s arguments about the nature of law.

Both in legislation and in adjudication, a well“functioning legal system attempts
to create and to benefit from “incompletely theorized agreements””agreements
on the existence and content of law amidst disagreements about what theoretical
position ultimately justifies that existence and that content. People who disagree
about a great deal can, for example, support protection of political dissent,
and many provisions of the Clean Air Act command a consensus from an exceptionally
diverse array of people. I am not sure that we can, or that we should, seek
an incompletely theorized agreement on Prof. George’s large question: What is
law? And in some cases, theoretical disputes will break out and cannot be bracketed
when we seek to know what the law is. (Dworkin is helpful in explaining why
this is so.) But it does seem clear that in understanding the social functions
of law, and its uneasy relationship to morality, we will be able to make progress
if we emphasize the astonishing extent to which diverse people, for all their
disagreements, are often able to agree on what counts as law, and even on the
law’s justice. For a society with high aspirations, this is not everything,
of course; but it is a precious historical achievement.

Cass Sunstein
University of Chicago Law School
Chicago, Illinois

The question “what is law?” has been treated in the last two centuries as if
it were an empirical question, one of analysis and description of legal practice.
If one were to ask “what is the law?””meaning what is the applicable
law on any given subject in such“and“such jurisdiction?”then an empirical approach
is not inappropriate. In this sense it does involve, as Oliver Wendell
Holmes argued, a prediction of the future behavior of judges and juries given
certain underlying facts about them and the context (including the normative
context) in which they operate. However, the question “what is law?” (sans the
definite article) should not be treated empirically as if it were merely a matter
of description. Instead, it should be treated as a normative question: What
should the law be if properly applied in practice? In other words, what
is the ideal toward which its practitioners should strive?”which is the question
that I believe philosophers such as Aristotle and Thomas Aquinas attempted to
address.

Laws are rules of conduct, with remedies and sanctions attached, based partly
on the morality of interpersonal relations extant in society and governing the
just resolution of disputes and partly on policy considerations involving the
best interests of all members of the polity, whether they are involved
in the dispute or not. Because of this dual character of law and the interests
it must satisfy, law can never be entirely moral if the latter, in some
situations, is to be preferred over the former. An example would be the case,
recently posed, in which still“surviving U.S. veterans of World War II captured
and enslaved to work in war industries by the Japanese are claiming reparations
from the present Japanese government for their unlawful forced labor and suffering.
Their claim, however, must be barred by law because their government”which indisputably
had a legal right to act as their representative in dealings with foreign governments
and their peoples”explicitly waived such claims in its peace treaty with the
Japanese government in the 1950s. A moral argument could certainly be made why
this obligation should not be discharged by this act of two governments, especially
when the behavior of one of them (the U.S. negotiators) was done in secrecy
or obscurity, without the knowledge or consent of those most directly affected
by that particular provision. However, the policy considerations concerning
international treaties and their reliability override any such moral objections
in this instance. This does not mean that law should not strive to arrive at
the most just result possible for those immediately involved in any injustice.
(Perhaps the U.S. government should compensate those ex“POWs for the claims
it so carelessly negotiated away.) It is true, nevertheless, that while law
and morality are not perfectly congruent, it is just as untrue, as the legal
positivists often argued, that they are totally separate realms.

Another essential feature of law in the normative sense and what may distinguish
it from other rules is that it must have an authoritative source. An authoritative
source these days”once it was custom, the Church, or the King”is a popular legislature,
expressing (in theory, at least) the will of the people governed and, in some
places, the will of God. Except in Anglo“American common law (and perhaps not
even there, again, in theory ), an authoritative source of law is not,
or should not be, the judge who applies the law. The judge may interpret the
law to fit the case before him, but the law he chooses to apply should come
from an authoritative and identifiable source other than himself or other judges.
Where this aspect of law is not observed, there is no “rule of law”; indeed,
there is no “law” at all.

I do not know whether Robert P. George would agree with these points, but I
highlight them because I think they are fundamental to any discussion of what
“law” is and are often overlooked in discussions of the subject.

Barton L. Ingraham
Santa Fe, New Mexico

Robert P. George replies:

Thanks to all three correspondents for exceptionally thoughtful letters. I
am flattered by the kind words of Professors Stith and Sunstein”scholars of
high distinction from whose writings I have over the years greatly benefited.

Professor Stith’s interpretation of Herbert Hart’s jurisprudence is hardly
idiosyncratic. No less a figure than Ronald Dworkin, Hart’s successor as Professor
of Jurisprudence at Oxford, reads Hart in roughly the way Prof. Stith reads
him. Still, I have never been persuaded that this interpretation is correct.
Like John Finnis and Joseph Raz”Hart’s greatest students (and, as it happens,
my teachers)”I think that Hart’s method and objective in jurisprudence did not
include any proposal to resolve questions of judicial obligation of the sort
Prof. Stith (and Dworkin) impute to him.

What Finnis once wrote in reference to Dworkin’s famous critique of Hart applies,
I believe, with equal force to what Prof. Stith says in contrasting what he
takes to be Hart’s position with that of John Paul II:

[Dworkin’s] debate with “positivists” such as Hart . . . miscarries,
because he fails to acknowledge that their theoretical interest is not, like
his, to identify a fundamental “test for law” in order to identify (even in
the most disputed “hard” cases) where a judge’s legal (moral and political)
duty really lies, in a given community at a given time. Rather, their interest
is in describing what is treated (i.e., accepted and effective) as law in a
given community at a given time, and in generating concepts that will allow
such descriptions to be clear and explanatory, but without intent to offer solutions
. . . to questions disputed among competent lawyers.

It is not that Prof. Stith’s (or Dworkin’s) questions (or the questions to
which the Pope does indeed propose answers) are uninteresting or unimportant.
It is simply that they are not questions Hart sought to resolve. He was interested
in a different set of questions.

Consider Prof. Stith’s example of a judge facing the question of whether to
exclude an argument about the injustice of Roe v. Wade in a trial of
nonviolent rescuers at an abortion clinic. A sound interpretation of Hart’s
writings would, I believe, yield the conclusion that his concept of law does
not by itself dictate a decision one way or the other. We can (and Hart could)
envisage a legal system in which the accepted understanding of judicial duty
includes a prerogative or even obligation of the judge to admit the argument;
and, of course, we can (and Hart could) envisage a legal system in which a contrary
understanding prevails. Indeed, it is possible to envisage a legal system in
which a dispute exists among competent lawyers acting in good faith as to whether
the proper course is for the judge to exclude the argument or admit it. What
Hart proposed to do, and largely succeeded in doing, was to develop conceptual
tools to make possible a truly refined (“explanatory”) and accurate description
of the actual functioning of the legal system in each case . Contrary
to what Prof. Stith supposes, Hart was not interested in fashioning a concept
(or adumbrating a theory) of law under which no judge in any legal system could
ever legitimately say, as a matter of law, that the argument was admissible.

I agree with Prof. Sunstein that many of the debates between “positivists”
and “natural lawyers” are, for all their fury, largely semantic. I also agree
that Lon Fuller’s response to Hart’s “conceptual separation” thesis was not
without merit. I have set forth a qualified defense of Fuller in a paper entitled
“Free Choice, Practical Reason, and Fitness for the Rule of Law,” which appeared
in 1992 in Social Discourse and Moral Judgment , edited by Daniel
Robinson. (I shall send a copy to Professor Sunstein and to anyone who requests
one from First Things.)

It is possible that Prof. Sunstein is correct in saying that my essay underplays
Ronald Dworkin’s most important contribution to jurisprudence. I have written
so much (mostly by way of criticism) about Dworkin over the years that perhaps
I am missing the forest for the trees. Prof. Sunstein’s exposition of Dworkin’s
position on “what the law is” seems sound to me, though Dworkin’s various statements
of his position have not been free of ambiguities. What Dworkin says about the
need to take into account what he calls “fit” with past legal events in evaluating
possible interpretations of the law is reasonable, though the idea cannot be
said to have originated with him. (He does, however, deserve credit for analyzing
it in illuminating ways.)

The controversial and, to me, less persuasive aspect of Dworkin’s thinking
concerns the relationship of “fit” to moral judgment in legal interpretation.
Over a period of some thirty“five years, Dworkin has vigorously insisted on
this relationship and its importance in legal theory. Yet he has not satisfactorily
explained either the relationship or its importance. What desperately needs
explaining is how Dworkin proposes to overcome the apparent incommensurability
of “fit,” on the one hand, and substantive moral “soundness,” on the other,
as criteria of assessment in legal interpretation. (The problem Dworkin needs
to face up to is lucidly explained by John Finnis in his essay “Natural Law
and Legal Reasoning,” in Natural Law Theory: Contemporary Essays, published
under my editorship by Oxford University Press in 1992.)

Prof. Sunstein mentions the concept of “incompletely theorized agreements”
which, in a variety of areas, well“functioning legal systems create and from
which they derive important benefits. What he modestly omits saying is that
he himself is responsible for identifying the concept and calling the attention
of those of us working in the field of jurisprudence to its significance in
understanding the social functions of law. I would particularly commend to readers
his Legal Reasoning and Political Conflict (Oxford University
Press, 1996).

I find much to agree with in Mr. Ingraham’s comments, particularly his point
about the importance for the “rule of law” of judicial respect for the distinction
between legislating and adjudicating. Perhaps readers of First Things are the
last people on earth in need of reminding that in contemporary American judicial
practice”particularly (though not exclusively) in the area of constitutional
law”respect for this distinction has eroded. At the same time, it is worth noticing
that the distinction itself will inevitably be fuzzy at the edges. Even the
most conscientious and self“restrained judge will sometimes find that the application
of legal rules to a set of facts will require of him the exercise of a measure
of discretion. Neil MacCormick (another of Herbert Hart’s outstanding students)
refers to judicial discretion in these circumstances as a form of “interstitial
law“making.” Friends of the rule of law need find no scandal in this, except
when willful or willfully self“deceived judges seize upon it as a pretext for
the usurpation of properly legislative authority.

On Constantine and Constantinianism

In three recent issues of First Things references have been made to Constantine
or to the “Constantinian arrangement” in at least two different
ways without any accompanying clarification. There is the
“Constantinian arrangement,” the defense of which Robert
Louis Wilken wrote about in his essay “ In
Defense of Constantine ” (April), which stems from Constantine
himself, and was or became”depending upon one’s historical
point of view”Caesaropapism. That condition of church“state
relations has been typical in Eastern Europe, which goes
far toward explaining how the Russian Orthodox Church could
accommodate itself to the Soviet dictatorship. It manifests
itself even today in such discrimination as the refusal
to register the Salvation Army, as noted in the March “While
We’re At It.” Caesaropapism is also the basis for the claim
of England’s Henry VIII to be the head of the Church in
England.

Another “Constantinian arrangement” arose from the Donation
of Constantine, a forgery (circa a.d. 800) in which the
Emperor Constantine donated to Pope Sylvester I the primacy
over the Eastern patriarchates and even offered him the
empire. The latter offer Sylvester declined. The Donation
was used as evidence for the Roman view of papal primacy.
Nicholas of Cusa (1401“1464) proved the Donation a forgery.

There is a third relationship that George Weigel (“ Papacy
and Power ,” February) calls the “Constantinian arrangement,”
but which, if I have understood him, is actually the reverse
of Caesaropapism. He refers to the papal claims to temporalities.
I am loath to take issue with so distinguished a person
as Mr. Weigel, whose writings I enjoy and admire. I think,
however, that the arrangement to which he refers might better
be denominated “Hildebrandine” with respect to the controversy
of the two swords during Hildebrand’s papal reign as Gregory
VII (1073“1085). After celebrating Passover the disciples
said to Jesus, “Lord, behold, here are two swords. And he
said unto them, It is enough” (Luke 22:38). The papal interpretation
of that passage from Gregory VII’s time onward was that
the two swords represent temporality and spirituality. The
spiritual sword was to be wielded by the Church itself,
and the temporal sword was to be wielded by civil powers
on the Church’s behalf. This theory may have reached its
zenith when John of England became a vassal of the Pope
and received England as a papal fief. In my opinion it would
be more accurate to refer to “the evolution of a [post“Hildebrandine]
papacy from Pius IX to John Paul II” rather than of a “post“Constantinian”
papacy, as Mr. Weigel suggests.

Jeffrey Wilson
Street, Maryland

Misrepresentation?

In dismissing my foreword to Joseph Cardinal Ratzinger’s Many
Religions”One Covenant (Briefly Noted, April), David
B. Hart manages to miss my point, or at least misrepresent
it. My intention was not to convict Protestants of heresy.
I wished, rather, to praise the Cardinal for moving Catholic
theology beyond the anti“Protestant polemics and apologetics
that have been its preoccupation since the sixteenth century.
Defensive theology is sometimes necessary, but it is almost
always a misshapen thing. In their obsession with Protestant“Catholic
differences, some Catholic theologians have tended to linger
too long on a few disputed points of doctrine.

Cardinal Ratzinger’s return to what I call “classical Christianity” restores
due proportion and harmony to all that is revealed in the word of God. I praise
his work of restoration because I believe it lends itself to the most fruitful
sort of ecumenism. Protestants and Catholics have much more in common than the
fixations of the last five centuries would ever lead us to recognize.

Unless I’m mistaken, I’m standing in the same corner with the good Cardinal
and Professor Hart”on this point, at least.

Scott W. Hahn
Professor of Scripture and Theology
Franciscan University of Steubenville
Steubenville, Ohio

David B. Hart replies:

I regret giving offense to Professor Hahn, and I especially regret misrepresenting
his views (if that is indeed what I have done), but my mistake was certainly
one that was occasioned as much by the text in question as by my reading of
it. As for the corner that he, I, and Cardinal Ratzinger allegedly occupy, Prof.
Hahn may be right, though as an Orthodox Christian I really have no dog in this
particular fight, and spend most of my time standing off in another corner altogether,
bitterly complaining that no one reads Leontios of Byzantium anymore. In any
event, I applaud Prof. Hahn’s intentions in his preface“”as he has elucidated
them here“”but I still deplore the language in which he chose to express them.

On Priestesses

Richard John Neuhaus ( While We’re
At It , April) states that persons who use the term “priestesses”
are generally opposed to the attempt by some Protestant
denominations to ordain women. Father Neuhaus goes on to
assert that the term is intended as a put“down. While the
former statement may be true, the latter is not, at least
not for all who use the term. Fr. Neuhaus mentions its use
by Episcopalians and Lutherans. It is also used by Catholics,
including myself (I am “guilty” of using the term in two
Catholic publications in America, and one in the U.K.).
For my own part, I certainly do not intend it as a put“down
of any person, though perhaps of a practice which I believe
to be an offense against God and the faith of the Apostles.

The term “priestess” is simply the correct grammatical term for a woman who
takes priestly office in religious ceremonies. There were pagan priestesses
in classical antiquity, as there are neo“pagan and New Age priestesses today.
(I put the word into an Internet search engine and discovered over 4,500 websites
of various ladies who call themselves priestesses, many offering to read your
fortune for a reasonable fee.) If a woman really believes that the God of Judeo“Christian
faith calls her to the priestly office, there is no reason why she should shrink
from being referred to”or from referring to herself”as a priestess. The fact
that many take offense at the term indicates to me that perhaps their conscience
is ill at ease with the office they have chosen to take upon themselves.

Fr. Neuhaus also notes (or rather quotes) a statement about the “overwhelming
support among Americans for women as religious leaders””a statement laden with
the typical fuzzy thinking encouraged by the sociologists. “Religious leaders”
are not necessarily the same as “priests,” and all persons who support including
women among the former are not necessarily doing the same concerning the latter.
To paraphrase C. S. Lewis in his essay “Priestesses in the Church?” (highly
recommended reading on this issue which can be found in God in the Dock:
Essays on Theology and Ethics ), women have, since Old Testament times, prophesied,
led armies (e.g., Esther, Ruth, Judith, Joan of Arc), and founded religious
communities. At least one (St. Catherine of Siena) has successfully chastised
a pope, causing him to leave his residence at Avignon and return to Rome. However,
not one of these outstanding women (not Ruth, Esther, Judith, Sts. Catherine,
Clare, or Joan”or, for that matter, Mother Teresa) has sought to take upon herself
the role of the priest. There is no record of any such attempt in the Old or
New Testaments, the Didache, any other reliable record left by the early Church,
or any major Christian community (Eastern or Western) for almost 2000 years,
until the 1970s.

L. A. Carstens
North Hollywood, California

For the Record

It has come to my attention that I did not make it clear
that a short section of my review of Peter Singer’s A
Darwinian Left (FT, October 2000) was inspired by
Howard Kaye’s critique of sociobiology in The Social
Meaning of Modern Biology (1997). This was an oversight:
Professor Kaye’s book is excellent, and I am delighted to
bring it to readers’ attention.

Nancy Pearcey
The Discovery Institute
Seattle, Washington