This is the very first fragment and
primeval draft of what would evolve over the following two years into my bachelor’s
thesis. It was composed on 25 March 2013, just hours after I had submitted my
associate’s degree essay, and was originally entitled De
Lege Regulaque.[1] The definition of law as argued for—the will of
the legislator solemnly expressed—was inspired by Art. 2 of the Louisiana
Civil Code: “Legislation is a solemn expression of legislative will.”
I. Whether Law Derives from the
Will?
Law
derives from the will, for it is “made by him who has care of the community”.[2] The
act of making anything derives from the will of the maker, for without the choice
to make, the made thing would not have been made. Law is a made thing.
Therefore it is made by a maker, and would not have been made had the maker not
made a choice to make the law. Therefore law derives from the will.
II. Whether Law is the Will of the
Legislator?
Law
can be nothing other than the will of the one entrusted with the power of
making the law, for if it were the will of someone other than he who has the
authority to make law, then it would not be a law at all, but a reasonable
directive without he morally-binding force of law. Therefore law is the will of
him who has been granted the power to make law, commonly referred to as
Legislator.
It
should be noted that “will” in this context does not denote a faculty of the
soul, but the intention of the legislator.
III. Whether the Will of the
Legislator is always Just?
Objection—It
would seem that the will of the legislator is not always just, for many
legislators issue unjust ordinances. Therefore, if law is the will of the
legislator, then laws may be just or unjust according to the particular will of
the legislator. But unjust laws are not laws at all. Therefore law cannot be
thought of as the will of the legislator, for such definition confers upon
unjust ordinances the character of law.
Response—The
will of the legislator is only the will of the legislator qua legislator
insofar as it accords with right reason and the common good. It contradicts
right reason to command obedience without promulgation of the command.
Therefore the will of the legislator qua legislator demands promulgation as
well. The legislator ceases to be a legislator insofar as his will qua
legislator goes against the necessary conditions for a just law as enumerated
above. Therefore the will of the legislator is not infinite, but is limited by
objective morality and right reason. Thus the definition of law qua “will of
the legislator” does not lead toward an authoritarian view of law in which the
law has the legal character simply because it is the will of the legislator.
Therefore the legal character can never be conferred upon law, and law may be
defined, at least in part, as the will of the legislator.
IV. Whether Law is Solemnly
Expressed?
Law
is nothing other than a solemn expression, for if it were a casual expression,
it would not be in accordance with the majesty of law and the elevated nature
proper to law. Furthermore, if it were not a solemn expression, it would not be
properly promulgated to all those upon whom it enjoins, and thus would lack the
character of law, since that which has not been communicated cannot be expected
to obeyed, and law by its nature has the property of commanding obedience.
V. Whether Custom is Solemnly
Expressed?
Solemn
expression includes custom, for the people upon which a custom binds and from
which such custom derives, through its collective will and common acceptance of
a practice, solemnly expresses its will by the common acceptance itself.
VI. Definition of Law
Therefore
law is nothing other than the will of the legislator solemnly expressed.
