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A Student's Guide to the Study of Law
By Gerard V. Bradley
ISI BooksCopyright © 2006 Intercollegiate Studies Institute
All rights reserved.
WHAT LAW IS FOR: PERSONS AND THEIR COMMUNITIES
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The subject matter of this guide is positive law: what human authorities have enacted or laid down—and in that sense posited—to order the common affairs of people living in political society. So habituated are we to living under law, and so ubiquitous is praise for the rule of law, that we forget that law is a recent invention, one with a very special appeal. This is not to suggest that before law there was universal chaos. It is to say that law is one of many methods by which to establish and maintain social order— and a latecomer, at that.
For millennia, societies were governed not by impartial and general requirements binding ruler and ruled alike, but by the ukase or dictat of the powerful one. Sometimes what were thought to be divine directives took precedence; other times the wise man dispensed justice while seated serenely under a date palm. Custom, or what was said to be the way of the ancestors, supplied additional principles of order in many societies. Perhaps in most places most of the time, order was achieved through a complex blend of all these authoritative sources. But none of these kinds of order is much like legal order, as we shall shortly see.
Law takes its place beside other kinds of order even in our society. Custom governs much of our social interaction. We do as we do in our families and in our friendships and on our sports teams because of what is expected and valued by others, not because it is written in the state's law. Huge companies are run on managerial principles that do not value, as law does, incremental change that is widely debated before it is implemented, and then implemented only with plenty of advance notice. This does not mean that corporations are beyond the law. They are not. Employees are protected by the civil law against sexual harassment, for example, and against dismissal in retaliation for union activity. But, in today's economy more than ever, corporate managers need to turn on a dime and act quickly. Legislators operate at a more leisurely pace, and so there are differences between managerial ways of governance and political ways of governance. Military governance is different still. Armies are governed (in part) by civil law (at least, our military is, since it is under civilian control). Armies are also governed (in part) as management would run a global corporation. But an army is distinctively governed by command authority, which looks and works very differently from legal and simple managerial authority. Furthermore, some churches and other voluntary associations are run by charismatic figures whose say-so has the same effect as that of a palm-tree caliph. None of these operate as our legal system operates.
The positive law of political society was "discovered" by Thomas Aquinas, the great medieval philosopher. Though there were legal codes as far back as Old Testament times, Aquinas first proposed that human law formed a distinct subject matter worth studying in its own right. He saw that law is a distinctive way of ordering social interaction. He recognized, too, that even though positive law was a man-made thing, it was brought into existence to serve moral purposes that man did not create. Positive law was for purposes external to itself. As the world's leading natural law theorist, Oxford legal philosopher John Finnis writes, "[t]here are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness which only those institutions can satisfy."
Positive law must always be understood in its relation to the external "goods" and "requirements of practical reason" of which Finnis wrote. But, as Aquinas first saw, positive law is also a cultural artifact, something made by people for people. This quality of law as something constructed— i.e., made or done—by people supplies a distinctive normativity, separate and apart from the external ends for which law is created. Positive law has its own internal imperatives, in addition to external "goods" and "reasons." Some legal thinkers, most notably Lon Fuller, have labeled this normativity law's "inner morality." This chapter is chiefly an exploration of law's purposes—the moral ends that are law's purpose—but it is worth emphasizing here that there are two moralities of law.
Lon Fuller spoke of "principles of legality": what law has to be like to be called "law" at all. Among these are requirements of publicity, promulgation, clarity, prospectivity, intelligibility, and, perhaps most important, congruence between the law as promulgated and the law as actually applied by state officials. Secret or indecipherable law fails as law: in such circumstances people are not able to order their actions according to law because they do not know what the law is. The last requirement stipulates that official action be governed by announced rules; arbitrary or capricious action is wrong. Some thinkers say that this last requirement inexorably leads to more just government, precisely by keeping official actions within promulgated standards. If the claim is true, we could say that law's inner morality necessarily promotes the moral goods that law is for, such as fair and equal treatment.
Legal reasoning also has a peculiar internal logic. It is practical reasoning, or reasoning about what one ought to do. It is never a virtue of legal reasoning that it be sloppy or illogical. In addition to the virtues of ordinary reasoning, though, legal reasoning has some distinctive features: stipulated definitions, reasoning by analogy, and a heavy reliance on authority. These are the ingredients of what law professors call "thinking like a lawyer." Law schools teach this pretty well, too.
Because law has these internal benchmarks, one can evaluate it as good without implying that it is just. "Bad law" might not be unjust at all; it might simply be confused or vague or erratic. "Bad law" might thus denote technical deficiency, and nothing more. Some legal scholars say that Roe v. Wade is "bad law," even while saying that they approve of abortion-on-demand. They mean, mostly, that the reasoning of the case is unconvincing.
Positive law so far considered is like any other human creation or performance. We say that Jane Austen was a good novelist and mean nothing about the kind of person she was. A great pitcher wins lots of games and has a low earned run average. But some great pitchers have been bad men. Pete Rose was a great hitter. He cannot get into the Hall of Fame, however, because he gambled on some baseball games. No one thinks that makes him less of a batter. Everyone understands that Rose suffers for misconduct "outside the lines," for character flaws and bad deeds that harmed the game's public reputation, for being a bad man and not a bad player. Bad baseball is just that: a poor performance according to the nonmoral evaluative criteria of the game.
Positive law can be judged—that is, evaluated as "good" or "bad"—on technical grounds, according to its "inner" morality, but it is the "outer" morality that counts most. The most important way to evaluate positive law is by its success or failure in contributing to the genuine flourishing of those persons it governs. That is what law is for. Those are the external ends for which law is called into being. These ends are real: they are not (like the law itself) artifacts or stipulations or legal fictions. The laws maintaining slavery, for example, were bad laws, no matter how clear and precise they were.
No doubt justice is one great end of law. Justice is concerned with giving to others their due. Positive law comes into being to shape life in political society. Neither justice nor law is involved straightforwardly in solely self-regarding acts (even though the number and kind of entirely self-regarding acts may be quite small). And so both justice and law naturally gravitate to questions of how we treat others.
I postpone until chapter 4 most of my explicit discussion of justice, where we take up the criminal justice system and its moral foundations. Until then this guide refers only occasionally to justice as the end of law for a simple reason: our law's greatest challenges are prior to justice: one needs to know to whom one owes duties of justice, in order to do justice. On this question our law and our law schools founder.
The positive law of political society is liable to the greatest injustice when it loses track of what law is for, that it is to serve not only persons but also the communities that help them to flourish. Justice depends not only upon correctly identifying those individuals to whom justice is due. It also has much to do with how the law treats human communities—marriage, family, religious organizations and so on. On these matters, too, our law and our law schools founder.
The greatest defect in our society's understanding of law is not that we have—speaking literally now—forgotten what law is for. We have not announced that henceforth human individuals exist to serve the greater good or the latest five-year plan. Americans are neither collectivists nor statists. We have not declared the Volk or the nation objects of veneration. Persons, marriage, family, and religion have been neither condemned nor ignored by our laws. Judges, legislators, and presidents all often speak most warmly of persons and their communities.
What has happened, and is happening, to our understanding of what law is for is subtler but no less portentous: we have come to mistakenly define what law is for. These mistakes do not result from unsuccessful efforts to get the matter right, unfortunately. Instead, lawmakers have lately deemed the truth about persons, marriage, family, and religion to be irrelevant to law. What these goods really are does not matter, they say. Worst of all, the irrelevance of moral truth has been carefully cultivated: not considering who is really a person, or what marriage really is, or how religion truly works, has been celebrated as a great virtue of American public life, a trend that has become dominant since World War II.
More exactly, under the influence of contemporary liberal doctrines about moral "neutrality," our determination of what law is for has become the creature of consensus, not of what is, of what is true. The desideratum is not to get what law is for right, but to fit it all comfortably within dominant cultural mores and conventional morality. Our lawmakers have resolved that avoiding controversy is the overriding end of law, especially when it comes to considering what law is for. Our lawmakers correctly see that law's moral foundation is potentially a source of great controversy. What they fail to recognize is that getting it wrong promotes the greatest injustice of all.
Let us look, then, at how the law has recently identified and defined persons, the family rooted in marriage, and religion.
The Roman philosopher Justinian said that "[k]nowledge of law amounts to little if it overlooks the persons for whose sake law is made." Justinian was right: persons are the basic realities for which law is called into existence. Law is for all persons, not for some persons for whose sake the law might subordinate other persons. It is a characteristic feature—an axiom, really—of modern legal regimes that positive law affects and applies to everyone equally, even to those who make the law. "Ours is a government of laws, not men," the famous saying holds. This is basically what "equality under law" means.
The most important provision in our fundamental law—the Constitution—is its guarantee to all "persons" of the "equal protection of the laws." All our legal rights and privileges depend on it. None of our rights and privileges would be secure if some people—those with the most money or power or those who complain the loudest—could arrange for other people not to count in law as "persons." Slavery was one such arrangement. Slaveholders did not altogether deny that slaves were human persons. Slaveholders could see that slaves were reasoning beings, possessed of volition. Although many did not, there were also many slaveholders who recognized their slaves' humanity by according them religious instruction and respecting their family affairs. All slaveholders denied, though, that slaves enjoyed legal rights. A slave could never demand in court legal equality with his or her master. Slaves were persons whom the law treated for the sake of their masters. Slaves were their owners' property.
Most people need little help from the law to value their own well-being over the well-being of others, especially those not bound to them by blood or affinity. The allure of manipulating others is eminently understandable. One's life moves more easily when one can employ other persons as instruments for fulfilling one's own projects, ends, goals, and needs. Where the law fails to restrain such manipulation, where it sanctions subordination of some for the sake of others, great injustice results. In the wake of injustice comes rationalization, then later an ideology of inequality. Before long, a whole culture of subordination grows up, as feminists and pro-lifers and those who speak for African Americans have been right to remind us.
People do not need the law's help to exploit others. That comes naturally. They need the law's help to resist the temptation to manipulate. And, as a matter of historical fact, our constitutional guarantee of equality was enacted to deny the patina of legal sanction to slavery and all forms of peonage—to destroy them. The point of having "equal protection" is to forestall the arbitrary exercise of power by one set of persons over another. That seminal guarantee makes sense, though only if the question of who is a person refers to what is true in the case, and not to what we want. The force of equality is blunted if the stronger among us can declare the weaker to be "nonpersons," and then have their way with them. Again, legal equality is meaningless if the question of who counts as equal is itself resolved by strength, or wealth, or special pleading.
When we consider law's role in guaranteeing equal protection to all, regardless of privilege or dominance, we can see how our permissive abortion laws strike at the moral foundations of law. The premise on which opposition to permissive abortion laws is based is that they involve injustice towards a class of human beings—the unborn. The content of abortion laws is the main thing, not how they came to be. That is to say, if the law of abortion, or of any other important matter, were resolved by a coin flip, or through trial by ordeal, or by which side could make the most jump shots in a row—and resolved correctly—the law would be just. However, those who decided by making legal decisions so arbitrarily would have acted unjustly nonetheless, for they would have played with others' lives, leaving to a contest of irrelevant skills a crucial moral decision. For anyone trying to understand how law is related to moral truth, the jump-shooters' example would be an amazing case study of what not to do.
In the same way, what has happened recently with persons and their communities is a remarkable case study of what not to do. There has been a fundamental shift from considering the law as established to protect all persons to a view that law has the power to define what a person is. If it can define personhood, law has the power to grant privileges but also to withhold them, depending on how personhood is defined. Using this method, protection becomes a matter of arbitrary legal definition, as arbitrary as a legal decision made by taking jump shots, rather than an inherently guaranteed right. The consequences of allowing lawyers and justices to define personhood, those whose rights will be guaranteed under the law, are illustrated in the following example.
A New York court decision, the Byrn case, was the precursor to Roe v. Wade. It held that "[w]hat is a legal person is for the law ... to say, which simply means that upon according legal personality to a thing the law affords it the rights and privileges of a legal person." (emphasis added). The court was poised to treat the "person" question as a prerogative of the law, as if the law—more exactly, the Byrn court positioned to make the law—might grant a privilege that, as the court made clear, could also be withheld. The Byrn court rejected, in other words, the possibility that, because of the kind of beings they were, unborn children have rights that even courts are bound to respect.
In an arresting passage, the Byrn court wrote that "the process" of deciding who is a person "is circular because it is definitional." The judges thought that identifying what law is for was a dead end, so long as law's ends were thought to be external to the law itself. Of course they are. But the court declared that the proper (noncircular) way to view the question is as a "policy determination whether legal personality should attach and not a question of biological or 'natural' correspondence."
Excerpted from A Student's Guide to the Study of Law by Gerard V. Bradley. Copyright © 2006 Intercollegiate Studies Institute. Excerpted by permission of ISI Books.
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