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.

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.