Raw Judicial Power IV: The Idea of Law

In the previous posting in this series we noted that (at least in the western political tradition), man is by nature a political animal. This is a possibly unique combination on Earth of an individual and social being, that is, a member of a group that retains individuality. The problem becomes how to balance individuality with the demands of being a member of a group.

Individualists try to solve this problem by asserting that while man is by nature an individual, he voluntarily joins with others in order to gain the mutual advantages that accrue to living in a group. This necessarily involves surrendering some rights in order to protect others, but that is the price you pay to gain safety and protection of your property. The job of each member of the group is to keep an eye on the governing body, and make certain that it doesn't take away any more rights than necessary to ensure the security of the remaining rights.

Collectivists argue that, since man is by nature a social animal, he is naturally a member of society. He joins with others because it is natural for him to do so, and he thus has no choice in the matter. All rights come from the group, being doled out only as necessary to keep people happy, and only so far as the exercise of individual rights does not come into conflict with the needs of the group.

The actual case is somewhat different. An Aristotelian or Thomist would point out that, since political is a combination of both individual and social, it is not an "either/or" situation. Man naturally gathers together in groups because our political nature necessarily implies the existence of a group, of others. "All politics is local" (attributed to "Tip" O'Neill), but it is not as local as to be limited to a single individual.

Yet, while it is natural for humanity to gather together into groups, the specific group is, up to a point, a matter of voluntary choice. People come together to form a particular society in response to humanity's social nature and to meet specific needs, but the formation of the group is generally voluntary, as is the particular form and function the group assumes in order to meet the social need for which the group is organized.

Further, while an individual may have no choice into which group, e.g., he or she was born into, continuation as a member of that group must be a matter of free choice, either implicit or explicit, once the individual reaches the age of reason or legal majority. That being the case, each member of a group has a personal responsibility for the maintenance of the group, and for its reform should the group no longer fulfill its social purpose.

There is no question of people surrendering some rights in order to secure others. Rights by their nature are only realized within a social setting, that is, within a group, "in society." A right is defined as the power to do or not do some act or acts in relation to others. This necessarily implies the existence of "others" in the group against whom rights are exercised. Each human being retains the full spectrum of natural rights vested in each person by human nature itself, but each group has to define the exercise of those rights so as to obtain the optimal enjoyment of rights by the individual without harm to other members of the group, or the institutions — the common good — of the group as a whole.

Each group, being formed for a specific purpose, must serve the general purpose of promoting the wellbeing of each member of the group. In Aristotelian philosophy this general purpose is to provide the opportunity and means for each member of the group to realize his or her fullest potential as a human being — to acquire and develop "virtue," that is, "human-ness": become more fully human. This involves establishing and maintaining the institutions, the "social tools" that humanity as a political animal normally requires to assist each individual in acquiring and developing virtue. All groups — including the State itself — are thus made for man, not man for the State.

All institutions should therefore be in material conformity with human nature — the natural law — or they are not fulfilling their proper function. The most obvious institutions in any society are manmade laws, that is, human positive law, but these are actually the least important institutions in the daily life of any group. As A. V. Dicey pointed out, without custom, tradition, and belief (what Dicey called "public opinion") to back up human positive law, few laws will be effective, or have the desired result.

Ordinarily the State formalizes into human positive law what the citizens already accept as law, or even the best-intentioned law can cause massive social disruption, even anarchy. Even the threat of a law that does not have popular support or goes contrary to accepted custom or tradition has the potential to destroy a society, as the belief prevalent in the American South that Abraham Lincoln would abolish slavery caused the Civil War, and Pro-Life agitation is seen by many people as a threat to a peaceful society and an attack on individual rights.

This raises another problem. The extreme individualist will assert that each person should obey only such laws (including custom and tradition) as he or she believes to be just or acceptable. Ultimately the sole standard against which to measure anything is individual opinion. The extreme collectivist will assert that all rights — and thus all laws (which alone are binding, negating custom and tradition) — come from the State, and must be obeyed without question simply because it is the law. The only standard that has any meaning or relevance is the needs of the State. Thus, while the orientations are at opposite ends of the spectrum, both the individualist and the collectivist end up in the same place: complete moral relativism and a rejection of anything that can be used as an objective and absolute standard against which to measure right and wrong, or the objective goodness or badness of human laws.

Moral relativism, however, whether it springs from individualism or collectivism, is not a sound basis for human society. By rejecting absolutes that can be discerned by reason alone and that apply to every member of the human race, or by denying inherent standards that apply outside a specific group, moral relativism takes a distorted view of the human person and thus human society based on human nature. As Heinrich Rommen explained,

"The idea of a natural law can emerge only when men come to perceive that not all law is unalterable and unchanging divine law. If can emerge only when critical reason, looking back over history, notes the profound changes that have occurred in the realm of law and mores and becomes aware of the diversity of the legal and moral institutions of its own people in the course of its history; and when, furthermore, gazing beyond the confines of its own city-state or tribe, it notices the dissimilarity of the institutions of neighboring peoples. When, therefore, human reason wonderingly verifies this diversity, it first arrives at the distinction between divine and human law. But it soon has to grapple with the natural law, with the question of the moral basis of human laws. This is at the same time the problem of why laws are binding. How can laws bind the conscience of an individual? Wherein lies, properly speaking, the ethical foundation of the coercive power of the state's legal and moral order?" (Heinrich Rommen, The Natural Law. Indianapolis, Indiana: Liberty Fund, Inc., 1998, 4.)

Thus, our idea of law should not be that it is something instituted to coerce people to act in ways that the most powerful or most popular have deemed desirable. It can be that, of course, and can even be just — assuming that the basis for what the powerful or popular have decided is desirable is in material conformity with human nature, with what people have discerned through the use of their reason to be good.

As a general rule, however, the whim of the mighty or the caprice of the crowd is not a good indicator of what is good. Laws based on mere power or popularity may not be what constitutes the optimal assistance each human being should receive from the institutions of society in order to develop more fully as a human being.

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