On Law, Order, and External Force

It is in the very internal logic of Western legal thought that the mere written word has no actual force in itself. Hence the need for a tribunal to apply the general principle to particular cases and the police to physically enforce such abstract judgment. This enforcement mechanism is what orders Western society.

Yes, it would be ideal if citizens simply followed the clear meaning of the law—assuming the law could be clearly understood (a separate juridical problem). But the fact that citizens do not does not thereby necessitate law being reduced to mere force.

Law is an ordering to the good, be it the common good, the individual good, the last end of man, etc. Law by its nature is an ordering of persons in the jurisdiction of the law (society). But the law can only order if it is effectively enforced. Consequently, in the non-ideal situation of not-wholly-voluntary obedience to the law, the very external force behind a law is the order which the law denotes, since only though external enforcement can the law be effectively implemented and order to the good.

This post was inspired by the writings of Chief Luther Standing Bear and is derivative of an original work from 12 September 2014.

The Injunctive, Practical, and Metaphysical Power of Customary and Statutory Law

By the very fact of its written-ness statutory law is weaker than customary law in its injunctive power. For the written law is necessarily external to the individual (positive law), while the customary, unwritten law is in some sense internal to the individual (i.e. human law analogous to natural law, since natural law is in the very nature of the human person). Due to its internal residency, unwritten law is stronger than external, written positive law.

Now this is certainly true on the practical level in cultures with only unwritten law. But unwritten law has less practical force in Western law due to its indefiniteness as to its exact provisions. The enforcement of customary law in a courtroom poses problems and leaves far too much interpretive power  (and possibility for abuse) in the hands of the judge.

With the Western mindset of exactitude and external enforcement, written law has more practical force. With the mindset of personal obedience, unwritten  law has equal practical force to written law in the West. Metaphysically, unwritten law has more force, since it is the spirit of the law and not its letter which has the morally-binding force, and unwritten law is internalized in man in a manner analogous to the natural law residing in the very nature of the human person.

This post was inspired by the writings of Luther Standing Bear, a chief of the Lakota. 12 September 2014.

Rights, Duties, and the Justice of Criminal Law

The debate surrounding treating juveniles as adults in certain cases in criminal law—be it indictment as an adult or being sent to an adult prison—misses the fundamental injustice of the thing: juveniles should not be treated as adults anymore than adults should be treated as juveniles.

Although the common law is less emphatic than the civil law on this point, physical persons are classified into different legal categories. Two such categories are minor (juvenile) and adult (major). With each of these categories come certain duties and corresponding rights. It is therefore unjust to attribute to a minor certain duties juridically attributable to an adult or to deprive him of certain rights juridically deprived of an adult.

With every duty comes a right. Hence  with the duty to follow the law and submit to adult punishment for its breach comes the right to vote, an active voice in society and a corresponding duty to behave for its good. But the minor does not have this right, nor a host of other rights, and therefore does not have the same obligation under the law to submit to the same degree of punishment. To impose a duty without granting a corresponding right is a contravention of justice.

Further, if a juvenile is capable of committing the same heinous crimes that an adult is capable of, and therefore has the same degree of rationality for the purposes of law, then the deprivation of suffrage to juveniles is thereby unjustifiable. The degree of one’s rationality under the law is an all-or-nothing category; adults are presumed to have greater rationality and are therefore accorded greater duties and rights, while juveniles and the mentally retarded are correspondingly accorded fewer duties and rights due to their diminished rational faculties.

It is patently unjust to categorize a person as an adult for the purposes of duty but as a juvenile for the purposes of right. A person is a person; he is either an adult or a juvenile. Justice does not recognize personal duality. Neither should law.

 

 

 

The Ontologically-False "Separation of Powers"

The term “legislative power” properly denotes the power to validly issue laws, to authentically interpret such laws, to apply their authentic and general meaning to particular cases before tribunals, and to implement and enforce such laws by prudent and legal means in accordance with the directives of such laws.
 

The modern error of the “separation of powers” is based upon the notion that the legislative, executive, and judicial powers are separable, but this does not correspond to the nature of the legislative power. I do not here argue for a centralized absolutism in practice, but from the separation of powers qua political fact it is unjustifiable to thereby attribute ontological truth to such separation.

The executive is a nebulous notion of governmental left-overs, encompassing all that which does not fit neatly under the “legislative” and “judicial” wings of government. This office is theoretically the ‘executor’ of the law’s spirit, but, since law is the means by which the authority in a community makes his will known to those outside himself, the “executive” power is really an exercise of the sovereign legislative power. Therefore the “executive” power is really inseparable from the legislative power, and is encompassed by the latter.

“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”[1]

Although the Common Law errs in applying an interpretation in a particular case to all cases, the principle is sound, that the “judicial” power is essentially legislatively interpretive. Since the “judicial” power is the interpretation of the law for particular cases and the application of such interpretation, it is essentially an exercise in the legislative power, since the law is meant to bind particular cases and the enforcement of the law is an enforcement of the will of the legislator, which is itself the spirit of and truest law. Therefore the “judicial” power is the enforcement of the will of the legislator in particular cases, and is therefore inseparable from the legislative power.

Therefore both the “executive” and “judicial” power are encompassed by the true and authentic meaning of “legislative power”. Only a "unification of powers" is ontologically true, although a "separation of powers" is possible as a legal fiction of political organization.

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Post is derivative of an original work I created on 22 August 2013 at 9pm.

[1] John Marshall, Marbury v. Madison

Unjust Law qua Law, contra lex injusta non est lex

I wrote this on 22 December 2013 at 12:15am. I am not sure I still agree with it—mostly because of the inclusion of analogical predication which I now view as a metaphysically weak absurdity—and I'm also not entirely sure Thomists would actually deny "law" analogically so predicated of "unjust law", but here we go:

Thomists would say that an unjust “law” is not a law at all since it cannot morally bind the conscience. But we still refer to this as a law, since we call it an unjust law. “Law” is predicated analogically of “unjust law,” but analogical predication acknowledges some similarity in distinct essences.
 

Law primarily binds in the conscience of the rational persons for whom it has been promulgated, since law expresses a rational ordinance and intention of the legislator and the rational binds the rational. But law binds the entire human person, and since man is a composite of body and soul, the law must also bind the body. It is the bodily binding element which an unjust law binds, since those who enforce the law will often continue to enforce unjust laws and inflict bodily punishments upon those who disobey them.
 

An unjust law has the analogically predicated denotation “law” insofar as such ordinance meets the formal requirements set by the legislator for a law to obtain binding force. This is a formal law which has formally binding force. A formal law can be just or unjust, since both kinds are able to meet the formal requirements for an ordinance to be “law.”
 

It is therefore unfitting to say that a formal law, although unjust, is altogether “not a law at all.” Insofar as it meets the requirements set by a validly constituted legislator for legislative status the word “law” can be predicated of it, although analogically, and insofar as “law” can be predicated analogically of an unjust formal law it is a law, although not in the unqualified sense nor in the sense that a just formal law is a law.

 

The Propriety of Contract in Natural Marriage

Some object to the incorporation of formal contract into natural marriage. They say that, since marriage is prior in time to the state, state sanction by contractual enforceability is an ahistoric superfluity. In their view, the state should get out of the matrimonial contract business altogether and leave natural marriage in its natural state.

Marriage must be ratified by formal contract for the same reason that private contracts must be made under legal conditions. People can make an agreement to do anything they want any time they want without the approbation of the law, but with such approbation it becomes legally enforceable, thus adding an external, communal element in which the agreement must be respected and an additional guarantor of its duration.

A fortiori the matrimonial contract must it be made in a context wherein the “’til death do us part”—an essential property of marriage as “indissolubility” (cf. Canon 1056, 1983 CIC)—becomes legally enforceable, for two persons could agree to totally give themselves to each other for the rest of their lives and thereby constitute a natural marriage, but without the element of legal enforceability, there is a de facto get-out-of-jail-free card that precludes the full realization of the lifelong irrevocability of the matrimonial contract, arguably impeding authentic matrimonial consent.

Then there is the inherently communal element of marriage, since it is upon marriage that the state and all other communities are founded. That the matrimonial contract takes place in the context of a legal community in which such contract has binding force and judicial enforceability corresponds to the inherently communal nature of marriage.

Citizens United and the Justice of Juridic Personality

Corporations are persons under the US Constitution according to the rulings of its authentic interpreter, the US Supreme Court.

Many have deplored what they see as a new development in the Citizens United decision; they object to the legal fiction of juridic personality and consider it improper to impart personhood to a corporation.

While their objection should be debated, the notion that juridic personality is a novel doctrine of SCOTUS alone is historically unfounded; Canon Law and the continental Civil Law it influenced have had the doctrine of juridic personality for centuries. While its incorporation into American Common Law is less explicitly in terms of "personality", both law and the courts have recognized corporate entities as having separate legal status (juridic personality) from those human persons (physical/natural personality) constituting the corporate whole. Hence corporations pay taxes, can be held accountable for crimes, and can exercise free speech wholly apart from those physical persons directing the corporation.

To the objection of impropriety in attributing personality to juridically-constituted corporate entities: If we are to strip corporations of their personhood, in justice we must thereby strip them of their pecuniary obligations under tax law. SCOTUS has already incorporated corporations under the Bill of Rights, and corporations have corresponding duties, such as paying taxes. For every duty, there is a right (cf. J. Koterski). Consequently, for the duty of paying taxes we acknowledge the right of free speech. If the right is suppressed, in justice the duty must be removed. The abrogation of the corporate tax is something I doubt anyone would seriously consider.

Exordium to an Authentic Philosophy of Law

In an age when the philosophy of law and jurisprudence has been wholly professionalized to the exclusion of all those without an advanced post-doctoral specialization, and online anonymity guarantees a blind review of blogospheric philosophy, I offer my philosophy of law on the premise that anyone can be a philosopher and the possession of a degree does not determine one's grasp of truth. Let the philosophy of law be judged upon the merits of rational argumentation, and not upon the advanced degrees of career academic pseudo-philosophers and the biases of journal editors and the academic establishment.