Contract as Particular Law

A valid contract even has the status of a particular law among the contractors.[1] The contractors form a community ordered to a common end, the well-being and benefit of all involved in the contract. The members of the contractual community give their unanimous consent to the contract, and it thus has the legal character. For it is the will of the legislator, in this case the entire contractual community, solemnly expressed by means of the contractors formulation of the contract, it aims at the good of the entire contractual community over which it enjoins, and it is in accord with justice and reason insofar as it is a valid contract, for validity requires that it be in accordance with divine and natural law ad normam CLIF 12 §204, and if a statute does not violate these, it must needs be just. Therefore, since the contractors form a community, the whole people of such community has the right to make law for themselves, and this legislative right is properly exercised by means of contract, which thereby has the status of a particular law among the contractors.

(written circa April 2013)

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[1] Post inspired by Lon L. Fuller, Anatomy of the Law

Cf. CLIF 12 §2

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.