Law

The distinction between the written law of the city and a higher, unwritten law has its first clear statement in the Antigone. Creon has issued an edict forbidding the burial of Polyneices; Antigone, in defense of her act of disobedience, appeals to statutes that are not of yesterday or of today but have always been, and whose origin no one can say. The distinction she draws is not yet the philosophical distinction between natural and positive law which Aristotle and Aquinas will formulate, but it is the dramatization out of which that distinction will emerge. What the play sets out is the fact that the obligation to obey the city's edicts is not the whole of law, and that a case may arise in which the citizen is bound to refuse.

Sophocles does not treat this as a simple opposition between right and wrong. Creon's edict is not a caprice. It rests on the need of a city recently torn by civil war to mark out its friends from its enemies and to prevent the honor of burial from being paid to one who had borne arms against his own. The play permits Creon to state his case, and states it with a certain force. What it denies is that any consideration of civic good, however weighty, can override altogether the claims that the gods of the household and the obligations of kindred have upon the living. The position of Antigone is not that the city's law is contemptible but that it is not the whole of law; above and around it there is another order to which an appeal may be made when the city's law commands what that higher law forbids.

This formulation sets the terms of one of the chapters of the later tradition. Aristotle in the Rhetoric cites the passage as an instance in which the orator may appeal from the particular statutes of a given city to what is "just by nature" and "just in itself." Aquinas, taking over this distinction, will argue that a human law which contradicts the natural law has no binding force on conscience, though it may bind externally for the sake of peace. The modern treatments of civil disobedience, from Locke through Thoreau, stand in the line that Sophocles had first opened.

What remains for the later tradition to work out is the question of how the two laws are related. Plato in the Crito will set a counter-example: Socrates, having been condemned unjustly, refuses to escape from prison on the ground that the laws of the city have raised him and have a claim on him which a private act of self-preservation cannot override. The two cases do not contradict each other as simply as they might appear. Between them they define the space within which the questions of natural and positive law, of conscience and civil obligation, will be debated under the ideas of Justice, Duty, and State.

Plato's discussion of law begins, in the Crito, with a question about the obligation of the citizen. Socrates, awaiting execution, declines to escape on the ground that the laws of Athens have nurtured and educated him, and that to break them, even when unjustly applied, would be to undermine the fabric of the city. The laws, as Plato here presents them, speak to Socrates as parties to an agreement that he has tacitly accepted by choosing to live under their protection.

In the Laws, his longest dialogue, Plato develops a more comprehensive account. Law, on this view, is the expression of reason in political life. Good laws are not arbitrary impositions of the ruler's will but the embodiment of rational order, what Plato calls "the golden cord of reason." Because human beings are subject to desires and appetites that draw them away from what is best, they stand in need of law as a steadying guide, an externalized reason that directs where the inner voice often fails.

Plato further insists that law should be educational in its character. Each law in the ideal city is to be preceded by a "prelude" that explains its purpose, so that citizens may obey from understanding rather than from fear alone. The law, on this conception, trains the soul in virtue; it does not merely compel outward conformity. The distinction between the tyrant who rules by will and the lawgiver who rules by reason directed to the common good is, for Plato, fundamental to the nature of law itself, a point taken up more fully in the chapters on GOVERNMENT and TYRANNY.

Plato thus establishes what becomes the classical position: that law is the rational ordering of the polity. His insistence that law embodies reason rather than will sets the terms for the discussion that follows, from Aristotle's doctrine of the rule of law through Aquinas's fourfold division and into the modern period.

Aristotle develops and systematizes the Platonic conception of law as the rule of reason. In the Politics, he argues that "it is preferable that law should rule rather than any one of the citizens," on the ground that law is "reason without desire." Even the wisest ruler is subject to passions, personal attachments, and momentary temptations that cloud individual judgment. Law, being general and impersonal, provides a more reliable guide to justice, though it is not without its own defects.

A distinction of considerable importance for the subsequent tradition is Aristotle's separation of natural justice from conventional justice. Natural justice, he holds, has "the same force everywhere and does not exist by people's thinking this or that," whereas conventional justice is what a particular community establishes for itself. Both are genuine forms of political justice, but natural justice supplies a standard by which the enactments of any particular state may be evaluated. This distinction, as discussed more fully in the chapter on JUSTICE, becomes the foundation of the natural law tradition from the Stoics through Aquinas.

Aristotle also observes that all law, being framed in general terms, must sometimes fail in its application to particular cases. Where the letter of the law produces an unjust result, equity (epieikeia) provides the correction: "a rectification of law where it is defective owing to its universality." Equity, on this view, is not opposed to law but is rather its completion in practice, supplying what the legislator himself would have prescribed had he foreseen the particular circumstances.

These three doctrines, the rule of law, the distinction between natural and conventional justice, and the theory of equity, provide the framework within which Western legal thought develops through the medieval and modern periods. The first bears on questions treated in the chapters on GOVERNMENT and CONSTITUTION; the second and third are central to the discussion of JUSTICE.

Cicero's treatment of law sets out, with greater philosophical clarity than any earlier Roman author, the doctrine of natural law which the tradition will afterward carry forward in a variety of forms. In a famous passage from the On the Republic, preserved by Lactantius, Cicero defines true law as right reason in agreement with nature, diffused among all men, constant, eternal. This law is not one among others, varying from city to city and from age to age; it is everywhere the same, and whoever disobeys it, though he escape what men call punishment, will not escape the worst punishment of all, which is the privation of his own humanity. God is the author and the enforcer of this law; any enactment of a senate or a people which contradicts it is not, in the proper sense, a law at all.

The treatise On the Laws, partly preserved, develops the doctrine at length. Cicero argues that the origin of law is not the decree of the city but the nature which men share in common with the gods. Before the foundation of any city there was already law, and when the city comes into being, its statutes are law only insofar as they participate in the prior order. The civil law of the Romans, which Cicero knew as well as any orator of his time, is not on this account any less binding; it is binding because and insofar as it is an articulation, under particular circumstances, of what right reason requires. When a positive law cannot be so justified, it has the force of an edict but not the authority of law.

The questions Cicero raises are taken up under several other ideas. The relation of natural to positive law is discussed further under the head of Justice; the bearing of natural law on the conduct of individuals, under Duty; the place of natural law in theology, under God and Religion. What belongs properly to the idea of Law is the Ciceronian formula itself: law is right reason in agreement with nature. This formula, which Cicero inherits in part from the Stoics, will supply the terms for the most ambitious of the later treatments.

Aquinas will take the Ciceronian definition and place it within a more elaborate scheme in which the eternal law, the natural law, the divine law, and the human law each have their place and each their own way of binding the agents to whom they apply. The natural law in Aquinas is the participation of the rational creature in the eternal law; human laws are valid as derivations from it, and fail of their force where they contradict it. Locke, at a considerable historical distance, will appeal to the law of nature as the measure by which the acts of civil authority may be judged, and the later treatments of civil disobedience and of the rights of man continue to draw upon the Ciceronian vocabulary. Between them, Cicero and Aquinas have made of natural law a common possession of the tradition.

Aquinas offers perhaps the most comprehensive treatment of law in the Western tradition. His formal definition, that law is "an ordinance of reason for the common good, made by him who has care of the community, and promulgated," brings together several elements that previous writers had treated separately. Law, on this definition, must be rational in its character, directed to the common good in its purpose, issued by a legitimate authority, and publicly declared.

Within this general definition, Aquinas distinguishes four kinds of law arranged in a single hierarchy. The eternal law is God's providential ordering of the whole of creation. The natural law is the participation of rational creatures in the eternal law, consisting of those moral principles that human reason can discover, beginning with the precept that "good is to be done and pursued, and evil avoided." The divine law is what God reveals in Scripture, supplementing natural law with respect to humanity's supernatural end. Human law is the body of positive legislation, which derives from natural law either as conclusions drawn from its principles or as determinations that particularize what natural law leaves indeterminate.

The consequence of this hierarchy is that human laws bind in conscience only insofar as they are just, that is, insofar as they conform to natural law. An unjust law, Aquinas holds, following Augustine, "is no law at all but a perversion of law." He is cautious, however, about the implications of this principle for disobedience. Unless a law commands what is contrary to God's commandments, Aquinas allows that an unjust law may be obeyed "in order to avoid scandal or disturbance," where the common good would be better served by acquiescence than by resistance. The questions this raises concerning obedience and rebellion are treated more fully in the chapter on REVOLUTION.

Aquinas gives the natural law tradition its most fully articulated form. The question his account leaves open, whether the individual's appeal to natural law against positive law invites a license for endless disobedience, becomes the point of departure for Hobbes's opposing theory.

Hobbes takes a position on law that is, in important respects, opposed to the natural law tradition of Aquinas and Locke. Law, he maintains, is not an ordinance of reason but a command of the sovereign will. "Law in general is not counsel, but command; nor a command of any man to any man, but only of him, whose command is addressed to one formerly obliged to obey him." Civil law, on this account, consists of whatever rules the sovereign, by writing or other sufficient sign of his will, commands his subjects to observe.

Hobbes does not deny that there is a natural law, but he conceives it differently from those who treat it as a body of moral principles discovered by reason and binding prior to civil society. The precepts of natural law, such as "seek peace" and "keep covenants," are for Hobbes rational counsels that direct men toward self-preservation and the security of peace. In the state of nature, however, these precepts bind only in foro interno, in the forum of conscience; they become effective laws, binding in action, only when a sovereign power commands and enforces them. "Civil and natural law are not different kinds, but different parts of law," he writes, yet the natural laws "are not properly laws, but qualities that dispose men to peace and to obedience."

The consequence of this position bears on the question of obedience treated in the chapter on REVOLUTION. If the authority of law rests entirely on the sovereign's command, the subject has no ground in a higher law for disobeying civil enactments. Hobbes allows that a man may resist when his life is directly threatened, for self-preservation is the fundamental right that even the social contract cannot extinguish. But he holds that "nothing the sovereign representative can do to a subject, on what pretence soever, can properly be called injustice, or injury," and that rebellion is never justified as an appeal to a law above the sovereign's.

Hobbes thus establishes the foundation of what later writers call legal positivism: the doctrine that the question of whether something is a law is to be separated from the question of whether it is just. This separation, and the theory of sovereignty on which it rests, becomes the principal object of criticism for Locke and for subsequent defenders of natural law and natural rights.

Locke maintains, against Hobbes, that natural law genuinely obligates both before and after the formation of civil society. The law of nature declares that "no one ought to harm another in his life, health, liberty, or possessions," and it is discoverable by reason. Civil law exists not to replace this prior law but to apply and enforce it with greater precision and security than private judgment in the state of nature allows. "The obligations of the law of nature cease not in society," Locke writes, "but only in many cases are drawn closer, and have by human laws known penalties annexed to them."

This conception places significant constraints on the legislative power. Although the legislature is supreme within civil society, "it is not, nor can possibly be, absolutely arbitrary over the lives and fortunes of the people." It is bound by the trust on which it was established: to govern by settled, standing, promulgated laws; to apply those laws impartially through known and authorized judges; to direct its actions to the public good; and never to deprive persons of their property without consent. These constraints bear on the questions treated in the chapters on CONSTITUTION and LIBERTY.

Legitimate law, on Locke's view, thus derives its content from natural law and its authority from the consent of the governed. Where legislators violate either condition, whether by passing arbitrary decrees or by ruling without consent, they forfeit their authority and place themselves "in a state of war with the people." The people then recover their natural right to establish a new legislative authority. This doctrine of the right of resistance, discussed more fully in the chapter on REVOLUTION, follows from Locke's insistence that no civil law can be valid which contravenes the law of nature.

Locke's account of law as limited by natural right and grounded in consent becomes the foundation of the constitutional tradition in Britain and America. The question whether his theory adequately addresses the tension between natural law and positive law, a tension that Montesquieu approaches from a different direction, remains central to the philosophy of law.

Montesquieu approaches the study of law in a manner that differs from both the natural law tradition and the positivism of Hobbes. His central principle is that laws must be understood in relation to the particular conditions of the people for whom they are made: their climate, geography, religion, customs, commerce, and form of government. "Laws should be so appropriate to the people for whom they are made that it is very unlikely that those of one nation can suit another." The study of law, on this view, is not primarily the search for universal principles but a comparative inquiry into the spirit that animates different legal systems.

At the same time, Montesquieu identifies certain structural principles that hold across different forms of government. The most influential of these is the doctrine of the separation of powers. Where the legislative, executive, and judicial functions are concentrated in the same hands, he argues, "there can be no liberty," because the holder of combined powers becomes judge in his own cause. Liberty, as treated in the chapter on that idea, requires that "power should be a check to power" through the structural arrangement of government.

Montesquieu thus holds together two positions that may appear to be in tension: that laws are culturally particular in their content, and that they may nevertheless be evaluated by universal principles of political liberty. The variety of legal systems across nations reflects the diversity of human circumstances; yet the test of any system, regardless of its particular form, is whether it protects citizens from arbitrary power. This combination of comparative method and normative principle bears on the questions treated in the chapters on CONSTITUTION and GOVERNMENT.

Montesquieu's comparative approach to law and his doctrine of the separation of powers become formative influences on modern constitutional design. The tension in his thought between cultural particularity and universal principle is taken up, in different ways, by Rousseau and by Hegel.

Rousseau offers a conception of law that departs from both the natural law tradition and the positivist theory of Hobbes, grounding the authority of law in the sovereignty of the people. Law, he maintains, is the act by which the whole people decrees for the whole people. "When the whole people decrees for the whole people, it considers only itself... it is then that the matter regarding which the decree is made is, like the decreeing will, general. This act is what I call a law."

Two features of this definition are of particular importance. First, law must be general in its object: it cannot target particular individuals or cases, for the sovereign people can legitimately will only what applies equally to all members of the body politic. Second, law must express the general will, which Rousseau distinguishes from the mere will of the majority. The general will is what the citizens would determine if each reasoned impartially about the common good, setting aside private interest. Enactments that fail this test, however large the majority that supports them, lack the character of genuine law.

On this view, the relation between law and freedom, a question treated more fully in the chapter on LIBERTY, is resolved by the identification of the legislating body with the body of citizens. Where Hobbes locates the authority of law in a sovereign above the people, Rousseau locates it in the people themselves as sovereign. Obedience to law, he holds, is obedience to oneself, because each citizen, as a member of the sovereign body, has participated in willing the laws that bind him. Law and freedom are thus not opposed but united in the act of collective self-legislation.

Rousseau's conception of law as popular self-legislation becomes influential in the political theory of the French Revolution, in Kant's moral philosophy where the principle of self-legislation is given a purely rational form, and in subsequent defenses of democratic sovereignty. The difficulties inherent in the concept of the general will, particularly the question of how it is to be distinguished from the will of all, remain among the contested problems of political philosophy.

Kant undertakes to ground the concept of law in the principles of pure practical reason. Right (Recht), as he defines it, is "the sum total of those conditions under which the will of one person can be united with the will of another in accordance with a universal law of freedom." Law, in its proper sense, regulates external actions rather than inner dispositions; it demands not that persons act from duty but only that each person's external freedom coexist with that of all others under a universal rule.

From this conception Kant derives his universal principle of right: "Act externally in such a way that the free use of your choice can coexist with the freedom of everyone else in accordance with a universal law." Positive laws are legitimate insofar as they can be derived from this principle, that is, insofar as a free and rational agent could will them universally for a community of similarly free and rational agents. The resemblance to Rousseau's conception of the general will is evident, though Kant gives the principle a purely a priori foundation independent of any actual social contract.

Kant holds, further, that the civil condition is not merely useful but morally required. Rational beings are obligated to leave the state of nature and enter into a lawful condition, because only under public law can the external freedom of each person be reconciled with that of all others. The coercive power of the state is legitimate precisely insofar as it enforces this universal law of freedom. The questions this raises concerning the limits of state power are treated in the chapters on LIBERTY and GOVERNMENT.

Kant's derivation of law from the principle of universal freedom provides modern constitutional liberalism with its philosophical foundation. The objection, pressed most fully by Hegel, is that a principle of right which abstracts from every particular community, history, and institution cannot by itself determine the content of a just constitution, and that the movement from abstract right to concrete law requires an account of the ethical life of actual political communities.

Hegel accepts Kant's identification of law with freedom but argues that Kant's account remains too abstract. Law, on Hegel's view, is not merely the condition under which abstract wills coexist; it is the concrete actualization of freedom in the institutions of ethical life (Sittlichkeit). The rational content of right takes objective form as statute, custom, and constitution. "Right becomes law (Gesetz) only by being posited, when it is given a determinate existence."

This emphasis on the positing of law is central to Hegel's account. The abstract knowledge that something is right does not yet constitute law; law requires that right be publicly articulated, codified, and administered. Through this process of positing, law acquires the universality, determinacy, and authority that it lacks as mere principle. Citizens can know what is required of them; officials can apply general rules to particular cases; the rational will that animates the state becomes effective in the ordinary life of its members. The relation of codified law to customary practice, treated in the chapter on CUSTOM AND CONVENTION, is one Hegel considers at length.

Hegel also insists, against those who would prefer the organic spontaneity of unwritten custom to the rigidity of codes, that the codification of law is a mark of modern rationality. A society governed entirely by unwritten tradition remains subject to the uncertainties of interpretation and the caprice of those who claim to know the custom. A society with codified law achieves a transparency and equality before the law that custom alone cannot secure. It is, Hegel holds, an injustice to bury the laws "in an extensive apparatus of learned books" no less than to hang them so high that no citizen can read them.

Hegel's account of law as the public and rational articulation of freedom in institutional form represents the most developed philosophical defense of the modern constitutional state. His insistence that abstract right must be made concrete in the institutions of a particular ethical community becomes the point of departure for Marx's critique, which asks whether those institutions serve rational freedom or merely the interests of a particular class.

Marx takes as his starting point Hegel's identification of law with the rational actualization of freedom, but argues that this identification conceals the actual function of law in historical societies. The legal order, on Marx's view, is not the embodiment of rational freedom but the institutionalization of the interests of the dominant class. Each mode of production generates the legal forms that reflect and secure its characteristic property relations. Feudal law defends feudal tenure; bourgeois law defends capitalist property. "Your jurisprudence is but the will of your class made into a law for all."

Marx does not deny that bourgeois law represents a historical advance. The principles of formal equality, impartial procedure, and individual rights that characterize modern legal systems are, in his account, genuine achievements in comparison with the hierarchical privileges of feudal society. But the equality that bourgeois law provides is formal rather than substantive. Equal rights in contract and property mean little to the worker whose only alternative to unfavorable terms is destitution. The universal form of law, on this analysis, serves to conceal the particular interests it protects. The bearing of this critique on the questions of WEALTH and LABOR is evident.

Marx thus shifts the terms of the inquiry. The traditional questions of legal philosophy, whether a law is rational or whether it conforms to universal freedom, conceal a prior question: whose material interests does a given legal form serve? To answer this question requires not legal analysis alone but historical and economic inquiry into the conditions that generate legal categories. The transformation of those conditions, rather than the refinement of legal doctrine, is what Marx holds to be necessary for genuine human freedom. Whether the abolition of class society would bring about the withering away of law itself, or only the replacement of one legal order by another, remains a contested question in the tradition Marx inaugurates.

Marx's insistence that legal forms be understood in relation to economic structure becomes the foundation of critical and radical approaches to jurisprudence. The question whether law can ever be more than the instrument of a dominant class, or whether a just legal order is possible within the conditions Marx describes, continues to be debated in the philosophy of law.