Copyright (c) 2001 First Things 115 (August/September 2001): 2-7.
Robert P. George’s “What is Law? A Century of Arguments” (April) will be a wonderful addition to my philosophy of law course this fall, but it accepts too easily H. L. A. Hart’s positivist desire for a “conceptual separation” between morality and law. Contrary to the thrust of Professor George’s piece, such a separation is not merely “descriptive” or “methodological.” It is also institutional and thus has important practical effects. Let me mention a few.
Hart is not a complete skeptic, as Prof. George points out. He agrees that we may have moral duties not to enact or obey unjust laws. But for him those laws remain “valid though illicit,” to use the terminology of another tradition. In Hart’s own terms, morality imposes duties but not disabilities on the legal order, thus granting that order a large measure of institutional autonomy—just as the traditional duties of international law leave intact the domestic validity of laws that violate those duties.
For example, even assuming that Roe v. Wade unjustly discriminates against unborn children, this argument would count merely as a moral objection for Hart and would thus be rightly excluded from the courtroom during a trial, say, of nonviolent rescuers at an abortion clinic. And, of course, the argument forms no basis for appeal of a conviction.
By contrast, Pope John Paul II reiterated a traditional natural law thesis in Evangelium Vitae when he stated that “a law which violates an innocent person’s natural right to life is unjust and, as such, is not valid as a law.” Since, in this view, Roe is invalid, unborn children continue to enjoy legal protection under U.S. law. And a rescuer can make an argument in court that he could trespass if necessary to save their lives. If the judge refuses to listen, the defendant has a legal right to appeal. In the same way, today’s international human rights activists wish individuals to be legally able to rely directly on supranational norms, with courts treating as invalid all contrary domestic norms.
Of course, if the judges are Hart ians, the Johnpaulinian rescuers will still end up in jail. Even so, their and their supporters’ morale will be strengthened by the knowledge that they were put there illegally as well as immorally. In order to see fully the practical effects of the Pope’s approach, however, we should ask what would happen if our judges also came to agree that a truly unjust decision of the Supreme Court is not valid.
Richard Stith
Valparaiso University Law School
Valparaiso, Indiana
Robert P. George offers a valuable and clearheaded discussion of a century’s exploration of the nature of law. I have no significant disagreements with his essay, and would offer only these points by way of elaboration and response.
Many (not all) of the debates between “positivists” and “natural lawyers” are largely semantic; very little turns on them. Hart, for example, sought to sort out the conditions under which law counts as such, without saying that we have reason to follow or accept whatever counts as law. In separating the question of what law is from the question of what law ought to be, Hart aimed, in fact, to facilitate moral criticism of the law.
Many people, including Lon Fuller, seem to have been alarmed that extremely unjust law could, on Hart’s view, count as law. But if we are permitted to criticize and even to disobey extremely unjust law, why is it important to deny that unjust law is law? This seems to be mostly a rhetorical question. I admire Professor George’s nicely put suggestion that “just positive law is derived from the natural law”; he rightly suggests that we distinguish between just positive law and law, and treat the latter as such even if we reject it in principle.
But Lon Fuller does have a interesting, limited response, and that response is worth some attention here. Fuller argues that law as such has its own “internal morality,” and that a Nazi system (for example) fails to qualify as law because it does not comport with that internal morality. Fuller urges that a legal system requires, among other things, laws a) that are clear and specific rather than vague and general; b) that are not contradictory, so that citizens can conform their behavior to them; c) that are not retroactive; and d) that operate in the world as they do on the books. Fuller’s great contribution was to show that systems of fascism and communism are unlikely to qualify as “law,” not because the systems are unjust (though of course they are), but because they do not comply with the internal morality that any legal system must satisfy. For Fuller, law’s internal morality is “thin”; but it is nonetheless extremely important. I would be much interested in hearing Prof. George’s comments on Fuller’s thinking here.
It seems to me that Prof. George underplays Ronald Dworkin’s most important contribution, which involves not his controversial views about constitutional law but his claims about “what the law is.” Dworkin says (to oversimplify a complex set of claims) that any statement about what the law is has a backward–looking dimension, but also embeds a judgment of principle. For Dworkin, a statement that “the law is X” is an effort to make “the best constructive sense” out of past legal events. We have to “fit” the past, rather than ignore it. On Dworkin’s view, any statement about the content of law must be based on an acknowledgment of a duty of fidelity to the past. At the same time, there may be several interpretations that “fit,” and in the event that we can fit the past in multiple ways, we inevitably try to make the best sense out of it, rather than nonsense. For example, it would be possible to criticize Roe v. Wade on the ground that it does not fit with preexisting legal materials; it would also be possible to criticize Roe v. Wade on the ground that even if it fits with those materials, it does not make sense out of them. I think that Dworkin is making an important contribution here, one with which positivists do not disagree, and one with which natural lawyers should (it seems to me) have no complaint. Dworkin is not really answering Hart’s question: What is law? Instead he is asking: When people interpret the law, what are they doing? To the extent that Dworkin is right, he is showing some of the reasons why people disagree about legal issues, including large constitutional issues. They disagree about the issue of fit. And they disagree about what makes best sense of the past.
This seems to me to illuminate many of our current controversies about the content of law. Dworkin also raises questions for Oliver Wendell Holmes, who is, in The Path of the Law, too much of a realist (for reasons given by Prof. George). If economics is not the only future for law (and it is not), this is because economics doesn’t always fit with past legal practice, and doesn’t always make sense of it. As a judge, by the way, Holmes paid far too little attention to fit—a problem also for Justices William O. Douglas and Antonin Scalia, both of whom, for all their differences, have the vice of liking to strike out on paths not of the law but of their own.
An interesting feature of Fuller’s “thin” account of law’s internal morality is that diverse people can unite around it. Liberals and conservatives, Christians and Jews, utilitarians and Kantians, fundamentalists and atheists, environmentalists and property rights enthusiasts—all these can agree that a legal system worthy of the name must comply with Fuller’s requirements. There is a large lesson here, one that has played a significant but underappreciated role in the last century’s arguments about the nature of law.
Both in legislation and in adjudication, a well–functioning legal system attempts to create and to benefit from “incompletely theorized agreements”—agreements on the existence and content of law amidst disagreements about what theoretical position ultimately justifies that existence and that content. People who disagree about a great deal can, for example, support protection of political dissent, and many provisions of the Clean Air Act command a consensus from an exceptionally diverse array of people. I am not sure that we can, or that we should, seek an incompletely theorized agreement on Prof. George’s large question: What is law? And in some cases, theoretical disputes will break out and cannot be bracketed when we seek to know what the law is. (Dworkin is helpful in explaining why this is so.) But it does seem clear that in understanding the social functions of law, and its uneasy relationship to morality, we will be able to make progress if we emphasize the astonishing extent to which diverse people, for all their disagreements, are often able to agree on what counts as law, and even on the law’s justice. For a society with high aspirations, this is not everything, of course; but it is a precious historical achievement.
Cass Sunstein
University of Chicago Law School
Chicago, Illinois
The question “what is law?” has been treated in the last two centuries as if it were an empirical question, one of analysis and description of legal practice. If one were to ask “what is the law?”—meaning what is the applicable law on any given subject in such–and–such jurisdiction?—then an empirical approach is not inappropriate. In this sense it does involve, as Oliver Wendell Holmes argued, a prediction of the future behavior of judges and juries given certain underlying facts about them and the context (including the normative context) in which they operate. However, the question “what is law?” (sans the definite article) should not be treated empirically as if it were merely a matter of description. Instead, it should be treated as a normative question: What should the law be if properly applied in practice? In other words, what is the ideal toward which its practitioners should strive?—which is the question that I believe philosophers such as Aristotle and Thomas Aquinas attempted to address.
Laws are rules of conduct, with remedies and sanctions attached, based partly on the morality of interpersonal relations extant in society and governing the just resolution of disputes and partly on policy considerations involving the best interests of all members of the polity, whether they are involved in the dispute or not. Because of this dual character of law and the interests it must satisfy, law can never be entirely moral if the latter, in some situations, is to be preferred over the former. An example would be the case, recently posed, in which still–surviving U.S. veterans of World War II captured and enslaved to work in war industries by the Japanese are claiming reparations from the present Japanese government for their unlawful forced labor and suffering. Their claim, however, must be barred by law because their government—which indisputably had a legal right to act as their representative in dealings with foreign governments and their peoples—explicitly waived such claims in its peace treaty with the Japanese government in the 1950s. A moral argument could certainly be made why this obligation should not be discharged by this act of two governments, especially when the behavior of one of them (the U.S. negotiators) was done in secrecy or obscurity, without the knowledge or consent of those most directly affected by that particular provision. However, the policy considerations concerning international treaties and their reliability override any such moral objections in this instance. This does not mean that law should not strive to arrive at the most just result possible for those immediately involved in any injustice. (Perhaps the U.S. government should compensate those ex–POWs for the claims it so carelessly negotiated away.) It is true, nevertheless, that while law and morality are not perfectly congruent, it is just as untrue, as the legal positivists often argued, that they are totally separate realms.
Another essential feature of law in the normative sense and what may distinguish it from other rules is that it must have an authoritative source. An authoritative source these days—once it was custom, the Church, or the King—is a popular legislature, expressing (in theory, at least) the will of the people governed and, in some places, the will of God. Except in Anglo–American common law (and perhaps not even there, again, in theory), an authoritative source of law is not, or should not be, the judge who applies the law. The judge may interpret the law to fit the case before him, but the law he chooses to apply should come from an authoritative and identifiable source other than himself or other judges. Where this aspect of law is not observed, there is no “rule of law”; indeed, there is no “law” at all.
I do not know whether Robert P. George would agree with these points, but I highlight them because I think they are fundamental to any discussion of what “law” is and are often overlooked in discussions of the subject.
Barton L. Ingraham
Santa Fe, New Mexico
Thanks to all three correspondents for exceptionally thoughtful letters. I am flattered by the kind words of Professors Stith and Sunstein—scholars of high distinction from whose writings I have over the years greatly benefited.
Professor Stith’s interpretation of Herbert Hart’s jurisprudence is hardly idiosyncratic. No less a figure than Ronald Dworkin, Hart’s successor as Professor of Jurisprudence at Oxford, reads Hart in roughly the way Prof. Stith reads him. Still, I have never been persuaded that this interpretation is correct. Like John Finnis and Joseph Raz—Hart’s greatest students (and, as it happens, my teachers)—I think that Hart’s method and objective in jurisprudence did not include any proposal to resolve questions of judicial obligation of the sort Prof. Stith (and Dworkin) impute to him.
What Finnis once wrote in reference to Dworkin’s famous critique of Hart applies, I believe, with equal force to what Prof. Stith says in contrasting what he takes to be Hart’s position with that of John Paul II:
[Dworkin’s] debate with “positivists” such as Hart . . . miscarries, because he fails to acknowledge that their theoretical interest is not, like his, to identify a fundamental “test for law” in order to identify (even in the most disputed “hard” cases) where a judge’s legal (moral and political) duty really lies, in a given community at a given time. Rather, their interest is in describing what is treated (i.e., accepted and effective) as law in a given community at a given time, and in generating concepts that will allow such descriptions to be clear and explanatory, but without intent to offer solutions . . . to questions disputed among competent lawyers.
It is not that Prof. Stith’s (or Dworkin’s) questions (or the questions to which the Pope does indeed propose answers) are uninteresting or unimportant. It is simply that they are not questions Hart sought to resolve. He was interested in a different set of questions.
Consider Prof. Stith’s example of a judge facing the question of whether to exclude an argument about the injustice of Roe v. Wade in a trial of nonviolent rescuers at an abortion clinic. A sound interpretation of Hart’s writings would, I believe, yield the conclusion that his concept of law does not by itself dictate a decision one way or the other. We can (and Hart could) envisage a legal system in which the accepted understanding of judicial duty includes a prerogative or even obligation of the judge to admit the argument; and, of course, we can (and Hart could) envisage a legal system in which a contrary understanding prevails. Indeed, it is possible to envisage a legal system in which a dispute exists among competent lawyers acting in good faith as to whether the proper course is for the judge to exclude the argument or admit it. What Hart proposed to do, and largely succeeded in doing, was to develop conceptual tools to make possible a truly refined (“explanatory”) and accurate description of the actual functioning of the legal system in each case. Contrary to what Prof. Stith supposes, Hart was not interested in fashioning a concept (or adumbrating a theory) of law under which no judge in any legal system could ever legitimately say, as a matter of law, that the argument was admissible.
I agree with Prof. Sunstein that many of the debates between “positivists” and “natural lawyers” are, for all their fury, largely semantic. I also agree that Lon Fuller’s response to Hart’s “conceptual separation” thesis was not without merit. I have set forth a qualified defense of Fuller in a paper entitled “Free Choice, Practical Reason, and Fitness for the Rule of Law,” which appeared in 1992 in Social Discourse and Moral Judgment, edited by Daniel Robinson. (I shall send a copy to Professor Sunstein and to anyone who requests one from First Things.)
It is possible that Prof. Sunstein is correct in saying that my essay underplays Ronald Dworkin’s most important contribution to jurisprudence. I have written so much (mostly by way of criticism) about Dworkin over the years that perhaps I am missing the forest for the trees. Prof. Sunstein’s exposition of Dworkin’s position on “what the law is” seems sound to me, though Dworkin’s various statements of his position have not been free of ambiguities. What Dworkin says about the need to take into account what he calls “fit” with past legal events in evaluating possible interpretations of the law is reasonable, though the idea cannot be said to have originated with him. (He does, however, deserve credit for analyzing it in illuminating ways.)
The controversial and, to me, less persuasive aspect of Dworkin’s thinking concerns the relationship of “fit” to moral judgment in legal interpretation. Over a period of some thirty–five years, Dworkin has vigorously insisted on this relationship and its importance in legal theory. Yet he has not satisfactorily explained either the relationship or its importance. What desperately needs explaining is how Dworkin proposes to overcome the apparent incommensurability of “fit,” on the one hand, and substantive moral “soundness,” on the other, as criteria of assessment in legal interpretation. (The problem Dworkin needs to face up to is lucidly explained by John Finnis in his essay “Natural Law and Legal Reasoning,” in Natural Law Theory: Contemporary Essays, published under my editorship by Oxford University Press in 1992.)
Prof. Sunstein mentions the concept of “incompletely theorized agreements” which, in a variety of areas, well–functioning legal systems create and from which they derive important benefits. What he modestly omits saying is that he himself is responsible for identifying the concept and calling the attention of those of us working in the field of jurisprudence to its significance in understanding the social functions of law. I would particularly commend to readers his Legal Reasoning and Political Conflict (Oxford University Press, 1996).
I find much to agree with in Mr. Ingraham’s comments, particularly his point about the importance for the “rule of law” of judicial respect for the distinction between legislating and adjudicating. Perhaps readers of First Things are the last people on earth in need of reminding that in contemporary American judicial practice—particularly (though not exclusively) in the area of constitutional law—respect for this distinction has eroded. At the same time, it is worth noticing that the distinction itself will inevitably be fuzzy at the edges. Even the most conscientious and self–restrained judge will sometimes find that the application of legal rules to a set of facts will require of him the exercise of a measure of discretion. Neil MacCormick (another of Herbert Hart’s outstanding students) refers to judicial discretion in these circumstances as a form of “interstitial law–making.” Friends of the rule of law need find no scandal in this, except when willful or willfully self–deceived judges seize upon it as a pretext for the usurpation of properly legislative authority.
In three recent issues of First Things references have been made to Constantine or to the “Constantinian arrangement” in at least two different ways without any accompanying clarification. There is the “Constantinian arrangement,” the defense of which Robert Louis Wilken wrote about in his essay “In Defense of Constantine” (April), which stems from Constantine himself, and was or became—depending upon one’s historical point of view—Caesaropapism. That condition of church–state relations has been typical in Eastern Europe, which goes far toward explaining how the Russian Orthodox Church could accommodate itself to the Soviet dictatorship. It manifests itself even today in such discrimination as the refusal to register the Salvation Army, as noted in the March “While We’re At It.” Caesaropapism is also the basis for the claim of England’s Henry VIII to be the head of the Church in England.
Another “Constantinian arrangement” arose from the Donation of Constantine, a forgery (circa a.d. 800) in which the Emperor Constantine donated to Pope Sylvester I the primacy over the Eastern patriarchates and even offered him the empire. The latter offer Sylvester declined. The Donation was used as evidence for the Roman view of papal primacy. Nicholas of Cusa (1401–1464) proved the Donation a forgery.
There is a third relationship that George Weigel (“Papacy and Power,” February) calls the “Constantinian arrangement,” but which, if I have understood him, is actually the reverse of Caesaropapism. He refers to the papal claims to temporalities. I am loath to take issue with so distinguished a person as Mr. Weigel, whose writings I enjoy and admire. I think, however, that the arrangement to which he refers might better be denominated “Hildebrandine” with respect to the controversy of the two swords during Hildebrand’s papal reign as Gregory VII (1073–1085). After celebrating Passover the disciples said to Jesus, “Lord, behold, here are two swords. And he said unto them, It is enough” (Luke 22:38). The papal interpretation of that passage from Gregory VII’s time onward was that the two swords represent temporality and spirituality. The spiritual sword was to be wielded by the Church itself, and the temporal sword was to be wielded by civil powers on the Church’s behalf. This theory may have reached its zenith when John of England became a vassal of the Pope and received England as a papal fief. In my opinion it would be more accurate to refer to “the evolution of a [post–Hildebrandine] papacy from Pius IX to John Paul II” rather than of a “post–Constantinian” papacy, as Mr. Weigel suggests.
Jeffrey Wilson
Street, Maryland
In dismissing my foreword to Joseph Cardinal Ratzinger’s Many Religions—One Covenant (Briefly Noted, April), David B. Hart manages to miss my point, or at least misrepresent it. My intention was not to convict Protestants of heresy. I wished, rather, to praise the Cardinal for moving Catholic theology beyond the anti–Protestant polemics and apologetics that have been its preoccupation since the sixteenth century. Defensive theology is sometimes necessary, but it is almost always a misshapen thing. In their obsession with Protestant–Catholic differences, some Catholic theologians have tended to linger too long on a few disputed points of doctrine.
Cardinal Ratzinger’s return to what I call “classical Christianity” restores due proportion and harmony to all that is revealed in the word of God. I praise his work of restoration because I believe it lends itself to the most fruitful sort of ecumenism. Protestants and Catholics have much more in common than the fixations of the last five centuries would ever lead us to recognize.
Unless I’m mistaken, I’m standing in the same corner with the good Cardinal and Professor Hart—on this point, at least.
Scott W. Hahn
Professor of Scripture and Theology
Franciscan University of Steubenville
Steubenville, Ohio
I regret giving offense to Professor Hahn, and I especially regret misrepresenting his views (if that is indeed what I have done), but my mistake was certainly one that was occasioned as much by the text in question as by my reading of it. As for the corner that he, I, and Cardinal Ratzinger allegedly occupy, Prof. Hahn may be right, though as an Orthodox Christian I really have no dog in this particular fight, and spend most of my time standing off in another corner altogether, bitterly complaining that no one reads Leontios of Byzantium anymore. In any event, I applaud Prof. Hahn's intentions in his preface–—as he has elucidated them here–—but I still deplore the language in which he chose to express them.
Richard John Neuhaus (While We’re At It, April) states that persons who use the term “priestesses” are generally opposed to the attempt by some Protestant denominations to ordain women. Father Neuhaus goes on to assert that the term is intended as a put–down. While the former statement may be true, the latter is not, at least not for all who use the term. Fr. Neuhaus mentions its use by Episcopalians and Lutherans. It is also used by Catholics, including myself (I am “guilty” of using the term in two Catholic publications in America, and one in the U.K.). For my own part, I certainly do not intend it as a put–down of any person, though perhaps of a practice which I believe to be an offense against God and the faith of the Apostles.
The term “priestess” is simply the correct grammatical term for a woman who takes priestly office in religious ceremonies. There were pagan priestesses in classical antiquity, as there are neo–pagan and New Age priestesses today. (I put the word into an Internet search engine and discovered over 4,500 websites of various ladies who call themselves priestesses, many offering to read your fortune for a reasonable fee.) If a woman really believes that the God of Judeo–Christian faith calls her to the priestly office, there is no reason why she should shrink from being referred to—or from referring to herself—as a priestess. The fact that many take offense at the term indicates to me that perhaps their conscience is ill at ease with the office they have chosen to take upon themselves.
Fr. Neuhaus also notes (or rather quotes) a statement about the “overwhelming support among Americans for women as religious leaders”—a statement laden with the typical fuzzy thinking encouraged by the sociologists. “Religious leaders” are not necessarily the same as “priests,” and all persons who support including women among the former are not necessarily doing the same concerning the latter. To paraphrase C. S. Lewis in his essay “Priestesses in the Church?” (highly recommended reading on this issue which can be found in God in the Dock: Essays on Theology and Ethics), women have, since Old Testament times, prophesied, led armies (e.g., Esther, Ruth, Judith, Joan of Arc), and founded religious communities. At least one (St. Catherine of Siena) has successfully chastised a pope, causing him to leave his residence at Avignon and return to Rome. However, not one of these outstanding women (not Ruth, Esther, Judith, Sts. Catherine, Clare, or Joan—or, for that matter, Mother Teresa) has sought to take upon herself the role of the priest. There is no record of any such attempt in the Old or New Testaments, the Didache, any other reliable record left by the early Church, or any major Christian community (Eastern or Western) for almost 2000 years, until the 1970s.
L. A. Carstens
North Hollywood, California
It has come to my attention that I did not make it clear that a short section of my review of Peter Singer’s A Darwinian Left (FT, October 2000) was inspired by Howard Kaye’s critique of sociobiology in The Social Meaning of Modern Biology (1997). This was an oversight: Professor Kaye’s book is excellent, and I am delighted to bring it to readers’ attention.
Nancy Pearcey
The Discovery Institute
Seattle, Washington