There's No Law But The Law

The existence of the law is one thing; it's merit and demerit another.  Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry.

These are words of John Austin, who is considered to be the founder of a philosophy of law called "legal positivism."  He was a contemporary of Jeremy Bentham.  J.S. Mill attended his lectures on law.

A legal positivist maintains that the law is something that exists regardless of whether it's good or bad.  It is something different and separate from what's described as natural law.  When we study the law as a functioning system, therefore, it's specious to contend, as people too often do, that it isn't really the law because it doesn't meet a particular moral standard, whether that standard be natural law, the commandments of God, or some other standard by which right and wrong, good and bad may be determined.

According to the legal positivist, it's incorrect, therefore, to claim that a law considered wrong or bad according to some such standard isn't a law.  It's a law alright.  It may be a bad one.  We may claim it should be changed, or shouldn't be followed, but a law it is and so it shall remain until changed or revoked.

There are those who have difficulty accepting this view.  They appear to believe that the law must be something else; something higher, something that's just, fair, equitable.   A law must comport with natural law, and recognize and uphold natural rights.  The law according to their point of view isn't the law we humans and our governments may adopt, promulgate and enforce.  The real, true law is otherwise there in some respect, written in the stars as it were, or existing in the mind of God.

The proponents of the American and French Revolution were given to maintaining that the laws they objected to were contrary to natural law and/or natural rights, which were superior to the law imposed by those they rebelled against.  Thus, they were not appropriately law under this conception.  Not being law, there was no obligation to follow them and even a positive duty to defy them.  This apparently was felt necessary to justify rebellion.  It may be it was believed that characterizing them in this fashion created more of a foundation for revolution then characterizing them as merely bad, unjust laws.  A tyrant's laws are more evil if they constitute a violation of the laws of God or Nature than if they only seem bad to other, fallible, humans.

Perhaps this was an understandable view when it was claimed that kings ruled by divine right and governmental authority could not be challenged without being dramatically unjust.  Those times are gone, though.  When man is the measure of all things, appeals to an unwritten law are unavailing, or at least unconvincing.  

Some people tend to believe that the acceptance of legal positivism requires that we believe all laws, all systems of law, are the same in merit, and that any law must be obeyed.  That's not something that follows from the premise that bad laws are laws nonetheless.  It's a conclusion which in its own way is derived from the belief that the only real law is that of nature or nature's God.  In that case, of course, the laws must be obeyed.  Interestingly, those who don't accept legal positivism will also tend to be those who claim that laws they find objectionable need not be followed.  In that case the law is merely a human contrivance which may be violated, when it serves to protect, for example, rights we believe don't exist, laws which protect people we don't believe should be protected, or laws which allow conduct we believe should be eradicated instead of protected.

Legal positivism imposes a most useful distinction.  That distinction is between the existence of the law and its worth, or merit.  Knowing what a law is, why it was adopted, how it functions in a legal system, is far more useful in determining whether it should or should not be changed than some effort at deduction from assumed standards, especially those that are supposed to be embodied in nature or exist in the mind of God.  

What's Wrong about Rights

Legal rights are, generally, most useful and beneficial.  What we think of as rights is a relatively new development in the law.  The concept of legal or human rights (as we understand them now) seems to almost leap forth in the 18th century, from somewhere.  Perhaps that wretched fellow Rousseau played a part in this, perhaps there was something more complicated involved. 

We don't see it much (or at least I don't) in ancient times in the West; I'm not certain we see it at all in the East.  Roman law is vast, but beyond the view that certain people are due certain things by virtue of their status--e.g. a Roman citizen being due an appeal to the emperor--individual rights don't factor large in the days extending from the Twelve Tablets to Justinian's Codex.

I've read that the concept of rights has its basis in the idea of natural law.  I question this, though.  Natural law certainly appears in Roman jurisprudence and may be said to be a factor, even a very important factor, in ancient philosophy, particularly in Stoicism.  But if Natural Law engendered the belief that we are endowed by Nature or Nature's God with certain inalienable rights, in my opinion this occurred long after Natural Law had been conceived.

While Stoicism certainly anticipated the idea of a "brotherhood of man" and so recognized the worth of each person by virtue of the possession of a part of the Divine Reason, and its maxim that we should live according to nature indicates that nature provides us with rules which should govern our conduct in life, I don't see this as equivalent to the belief that each person has certain rights.  Indeed, the concept of rights as we understand it seems foreign to Stoicism.

We say we have a "right" to something when we believe that we are or should be free to do something or possess something.  We have a claim to it; we are entitled to it, to the exclusion of anyone else.  Stoicism teaches us that things beyond our control are indifferent.  It urges us not to disturb ourselves with them, not to seek or desire them.  What else is the claim to have a right to property but a claim that one is entitled to something beyond our control?  Epictetus tells us not to be disturbed even by the loss of a loved one, or disturbed no more than by the loss of a favorite cup.  It would be bizarre for a Stoic sage to maintain that he is entitled to anything, even to his own life.  Nature/God will determine when we die and how; we should be prepared to die, but our death is one of the things beyond our control  It's in the nature of a gift, a natural part of life.

Stoics tout the freedom one has from others and other things, but that freedom derives from the recognition of that which is indifferent to us and our own self-discipline.  The Stoic has no conception of a right to be free; one can be free even if in prison, as one maintains sovereignty over that which is truly in one's control.

For my part, I believe the only rights we have are those recognized by the law, that is to say, legal rights.  Certainly those are the only rights which are enforceable.  Legal rights, though sometimes conceived of as possessory, in fact result from restrictions imposed particularly on governmental power.  We have no right of free speech, for example, in the law.  We have the First Amendment, though, which prohibits the government from restricting free speech.  Legal rights therefore often exist purely because the law prohibits certain conduct by others.  I can speak freely in the sense that the government is unable to prevent me from doing so.

When we speak of rights outside the law, whether we call them natural rights, inherent rights, god-given rights, we purport to refer to what has application only if protected by the law.  We treat them as if they are legal rights, though they are not.  We claim to be entitled to certain things or entitled to do certain things by virtue of non-legal rights.

It seems to me that when we employ the concept of rights in ethics, we take an idea which has a beneficial function in the law and employ it where it has no function at all or a negative function.   Rights are something we have or claim.  Our interest in them is selfish.  We don't see rights as creating duties to others.  If we have the right to do and think what we wish, even if that right is qualified so that our right to act and think may not be used to harm others, we may do as we please even if we are cruel, envious, uncharitable, craven, contemptible, gluttonous, miserly.  We may be utterly unworthy, and are not only free to be so but have every right to be so.

In other words, we have the right to be wrong, bad, immoral as long as we don't infringe directly on the rights of others.  This is an ethics which sanctions, if it doesn't actually encourage, the disregard of the suffering of others.

I've always been a proponent of civil liberties, and still am.  Legal rights are essential to our freedom and so vastly significant in the law.   But rights seem a poor thing on which to base a code of morality.

Regarding Natural Law

The belief that there is something called "Natural Law" has been around for quite some time.  Since at least the time of the Stoics, it has been claimed as an unquestionable guide to conduct.  In its great days, Roman jurisprudence was informed by the belief.  One can see its influence in medieval thinkers such as Aquinas, and in the thinkers of the Enlightenment.  It's influence on those we call the Founders of this great republic was profound.

Like all claims that morality may have an objective basis, or worse yet to some a divine basis, it has been the subject of attack if not derision in intellectual circles for quite a number of years, but my recollection is that even in the remote time when I was receiving a philosophical education there were hints that it might be having a kind of renewal.  Aquinas's name was being whispered by some back then.  "Should old Aquinas be forgot and never brought to mind?" I remember a visiting professor singing during a meeting of our university philosophy club--not very well, and to some nervous titters by us undergrads, and stern looks from the members of our very modern (back then in any case) philosophy department.

I confess I have a certain fondness for the concept of Natural Law, which I suppose is to be expected in an admirer of the Stoics. and Cicero, that hybrid Stoic-Academic.  And it seems to me that some, at least, of the objections made to it may be addressed.

First, I think it's quite possible to recognize Natural Law without believing it to be of divine origin.  The universe exists, as do we humans, whether we are creatures of a divine creator or not.  Created or uncreated, the universe, and human beings, have characteristics which can be observed and regarding which intelligent inferences can be made.  Certain characteristics can be said to lead to certain conduct.  Certain characteristics and desires seem to be shared. 

Second, it's not necessary to believe in absolute laws, or laws founded in some kind of unchangeable certainty, applicable in all circumstances.  Warranted conclusions may be drawn based on available evidence, which are not absolute but are recognized as being subject to modification as necessary--just as secular laws are understood to be subject to amendment or repeal.  Even as the "laws" of science are understood to be subject to modification.

It may be that Natural Law understood in this fashion won't satisfy those who deny that morality can have any objective basis apart from humanity.  However, it doesn't seem to me that their satisfaction is of much importance.  For my part, though, the fact that morality is essentially human is neither surprising nor a sign that it must necessarily be defective or inadequate in some sense.  We are as much a part of nature as anything else.  Our thoughts and desires are influenced by the universe of which we are a part, and they in turn influence our conduct in the universe, which influence other creatures and things in the universe.  To speak of them as not being "objective" in the sense other constituents of the universe may be objective seems, to me, to be dependent on the view that they are not part of the universe in some sense.

If they're not part of the universe, though, just what are they supposed to be?  Is it possible that the critics of Natural Law themselves assume there are things outside or beyond nature?  Or are they as much victims of the "quest for certainty" as those they criticize, and have come to believe that without absolute certainty all is subjective, relative?