There is a difference of opinion between natural law theorists and legal positivists on what constitutes a law and whether it is the case that, as Saint Augustine said, “an unjust law is no law at all.” I argue that the difference is one of definitions and that whether or not that statement is correct depends on whether one’s definition of law refers to the underlying concept of right and wrong or just to some other human framework.
Is the Nazi prohibition on marriages between Jews and non-Jews a “law”? The frustrating non-answer, of course, is that it depends entirely on how we define the word “law.” Assuming (rightly) that this prohibition was evil and immoral we then have to ask if “law” refers to whatever concept determines that this prohibition is evil. There is a concept, which humans generally intuit, that determines right and wrong. For simplicity, we can assume this concept is morality, and even though we disagree on where it comes from, we can generally agree that it is the concept in disagreement with Hitler’s prohibition on intermarriages.
The religious may believe that the concept which we correlate with morality either comes from God, is above God, or is part of God’s identity. The non-religious might believe that is a product of social conditioning and imposed by the superego in the Freudian sense, is derived from the value of humanity as intellectual beings in the Randian sense, or that it is simply the right thing to do. Whatever it is or wherever it comes from, this concept contradicts Hitler’s prohibition. If this concept is law, and supersedes the law of 1930s Germany, it follows that the prohibition is not truly a law; the prohibition is void. If this concept is something else, then the prohibition is a law, but law should be a secondary concern after this concept.
Theorists of ‘natural law,’ in the sense of Saints Augustine and Aquinas, believe that the concept which makes right or wrong is the Law of God or the Law of Nature (God and nature being the same here). It’s from this definition of law that Saint Augustine’s statement “that which is not just seems to be no law at all”1 can be deduced. “That which is not just,” we can infer from this, is referring to a rule that contradicts the Law of God/Law of Nature; it’s a rule that we would call wrong or immoral. Laws from a lower power which contradict a higher one are void, whether it is Hitler’s law versus God’s law or a municipal code versus state law.
John Finnis argues along similar lines, and he notes that the only reason any human law should place any duties on us to follow it – in a sense, the only reason human law is a law at all – is because “the legal validity (in the focal moral sense of ‘legal validity’) of positive law is derived from its rational connection with (i.e. derivation from) natural law.” He notes that these laws must not contradict themselves or the Natural Law, in order to place any moral obligation on us. Human laws are laws “if and only if (i) law originates in a way which is legally valid (in the specifically restricted, purely legal sense of ‘legal validity’) and (ii) the law is not materially unjust.”2 Hitler’s law, obviously, doesn’t qualify.
There is another sense of what Natural Law could mean, according to Lon Fuller, who argues this is the real and most useful meaning of the term. Natural Law doesn’t refer to the concept behind right and wrong I hinted at earlier, it refers to the principles which make laws laws, what makes them effective. These are practical laws rather than moral ones, which are violated by things like “a failure to make rules understandable, the enactment of contradictory rules, rules that require conduct beyond the powers of the affected party, introducing such frequent changes in the rules that the subject cannot orient his action by them…, or a failure of congruence between the rules as announced and their actual administration.”3 Rules that have these flaws cannot be said to be laws in Fuller’s understanding of Natural Law, because they do not perform the function of laws. Fuller lays out eight principles like these. Hitler’s intermarriage prohibition conforms with all of them, with the possible exception of his antisemitic laws changing in form and enforcement during the late 1930s. If Hitler’s prohibition conforms with the principles of Natural Law – which is essentially practical law in Fuller’s understanding – then it is, in fact, law.
Other legal theorists, particularly within legal positivism, have discarded the idea of Natural Law all together and separated law from morality. John Austin carefully builds up the concept of law to exclude the concept which determines right or wrong, attempting to remove all abstracts from the system. A law is “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”4 Austin has various other qualifiers meant to cut out anything from this definition other than law in the sense that we perceive lawyers from using it, such as that laws “are continually enforced as laws by judicial tribunals.”5 It’s for this reason that Austin disagrees with natural law theorists who claim that an unjust human law is not a law at all. “An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.” Therefore, according to Austin, “to proclaim generally that all laws which are pernicious or contrary to the will of God are void and not to be tolerated is to preach anarchy, hostile and perilous as much to wise and benign rule as to stupid and galling tyranny.”6 Hitler’s prohibition is the law in Austin’s formulation of legal positivism.
This might be a good way to define what law is. The ultimate question is: does the word “law” refer to the concept which determines what is right and wrong? If we decide that it does, then an immoral dictate like Hitler’s prohibition is not a law. If we decide that it does not, then an immoral dictate like Hitler’s prohibition can be a law, provided it meets the qualifications laid out by Austin or Fuller. But if it doesn’t, then breaking the law is not an immoral act. Indeed, if immoral laws are to be called laws, then the word law refers to nothing more than the codified dictates of the most powerful local gang of thieves and murderers. Perhaps then, we as a society need to pick a definition and stick to it, so as to deprive the thieves and murderers who inhabit the halls of power of the pretense of moral authority which they enjoy as the result of the ambiguity of the word.
Written May 2022
Endnotes:
- Thomas Aquinas, selections from Summa Theologiae, in The Philosophy of Law: Classic and Contemporary Readings with Commentary, ed. Frederick Schauer and Walter Sinnott-Armstrong (Oxford University Press, 1996), 13. ↩︎
- John Finnis, selections from Natural Law and Natural Rights, in The Philosophy of Law: Classic and Contemporary Readings with Commentary, ed. Frederick Schauer and Walter Sinnott-Armstrong (Oxford University Press, 1996), 17. ↩︎
- Lon Fuller, selections from The Morality of Law, in in The Philosophy of Law: Classic and Contemporary Readings with Commentary, ed. Frederick Schauer and Walter Sinnott-Armstrong (Oxford University Press, 1996), 21 ↩︎
- John Austin, selections from The Province of Jurisprucence Determined and the Uses of the Study of Jurisprudence, in The Philosophy of Law: Classic and Contemporary Readings with Commentary, ed. Frederick Schauer and Walter Sinnott-Armstrong (Oxford University Press, 1996), 33. ↩︎
- Ibid., 39. ↩︎
- Ibid., 39. ↩︎
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