A New Introduction to Jurisprudence
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A New Introduction to Jurisprudence

Legality, Legitimacy and the Foundations of the Law

Paul Cliteur, Afshin Ellian

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eBook - ePub

A New Introduction to Jurisprudence

Legality, Legitimacy and the Foundations of the Law

Paul Cliteur, Afshin Ellian

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A New Introduction to Jurisprudence takes one of the central problems of law and jurisprudence as its point of departure: what is the law? Adopting an intermediate position between legal positivism and natural law, this book reflects on the concept of 'liberal democracy' or 'constitutional democracy'.

In five chapters the book analyses: (i) the idea of higher law, (ii) liberal democracy as a legitimate model for the state, (iii) the separation of church and state or secularism as essential for the democratic state, (iv) the universality of higher law principles, (v) the history of modern political thought.

This interdisciplinary approach to jurisprudence is relevant for legal scholars, philosophers, political theorists, public intellectuals, historians, and politicians.

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Chapter 1

Legality and legitimacy in natural law and legal positivism

One of the central problems of political and legal philosophy, a quandary that has forced itself on mankind throughout history, is the question of when, exactly, we are justified in suspending our obedience to the laws of the state.1 This question arises both for groups of people and for the individual.
It can also be formulated this way: a legal system may be legal, that is to say: in accordance with the law, but does that also make it legitimate? Meaning, is it in keeping with principles of justice?
A classic example of this conflict can be found in the American Declaration of Independence (1776). In this declaration, by which the young American states seceded from Britain, we find the following passage:
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed 
The declaration asserts that the laws and authority of the state end at a certain point, namely where they conflict with what are called self-evident truths. So what are these truths? First, that all men are created equal, and second, that they are endowed by their creator with certain unalienable rights. Clearly, this does not refer to rights derived from man-made legislation but to rights believed to stem from a divine will.3
The declaration also has some things to say about the content of these unalienable rights. They are:
  1. A right to life
  2. A right to liberty
  3. A right to the pursuit of happiness.
This is the foundation of the rule of law, so the American revolutionaries believe. No state may violate these rights. It is not that these rights are granted by the state, but the state exists in order to effectuate them: “to secure these Rights, Governments are instituted among Men.”
Because, in the opinion of the Revolutionaries, the English King George III (1738–1820) had acted in violation of these principles, they believed themselves justified to rebel, to, as we now call it, commit civil disobedience. His government was declared illegitimate.
The situation described above does not only occur in groups of people. It also happens in the lives of individuals, when the state requires us to do things we are morally unable to tolerate. The problem is as old as the way to Rome. In fact, it is at least as old as the way to Athens.
Figure 1.1 On June 11, 1776, the American Congress appointed a committee of five members tasked with drafting a declaration of independence. These members were John Adams, Benjamin Franklin, Thomas Jefferson, Robert R. Livingston, and Roger Sherman. In Jean Leon Gerome Ferris’s painting (1900), we see the committee at work. In a little over two weeks, Jefferson wrote a first draft, which was presented to Congress on June 29, 1776.
As early as the fifth century BCE, Sophocles’ (497–406 BCE) Antigone describes a conflict in which an appeal is made to a higher law than that of the state. Sophocles details how the tyrant Creon had given the order that Polyneices, Antigone’s brother, was not to be buried.4 However, Antigone disregards the earthly ruler’s will and appeals to a different, higher law. About Creon’s order she says:
because this was not a law decreed by Zeus, nor by Zeus’ daughter, Justice, who rules with the gods of the Underworld. Nor do I believe that your decrees have the power to override those unwritten and immutable laws decreed by the gods.
These are laws which were decreed neither yesterday nor today but from a time when no man saw their birth; they are eternal! How could I be afraid to disobey laws decreed by any man when I know that I’d have to answer to the gods below if I had disobeyed the laws written by the gods, after I died?5
“You are only human,” Antigone says to the highest source of positive law, the king. Above the law laid down by the state, there is a higher, divine law. She speaks of timeless, godly laws, laws that did not come about yesterday or the day before but that are eternal. No one knows where these laws come from, but they do exist.
Antigone’s stance is a progenitor of what will later be called Divine Command Theory. This is the theory based on the belief that God or gods have laid down certain norms for us that can be viewed as the highest principles of morality.6 Why is something good? Because God or gods have prescribed it. Why is something bad? Because God or gods have forbidden it. So Creon is not the highest source of law and morality; the gods are, according to Antigone. And when Creon gives an order that conflicts with divine law, divine law supersedes it. As such, the law of the gods is placed above the positive law, the law decreed by the state.
On the one hand, this is an attractive option because it prevents us from being buffeted every which way by the whims of the state, or so it seems. There is also a danger to it though; any fanatic can disregard the earthly laws with an appeal to the divine. Modern-day theoterrorism provides abundant examples of this. By theoterrorism we mean: terrorism based on a particular conception of God or gods.7 That includes a perfectly good and all-powerful god who lays down certain laws that mankind must follow. This god’s laws are so important that, when they are not obeyed, a theoterrorist believes that violence is called for to rectify this situation. Examples of theoterrorists can be found in all three monotheistic traditions.8 Jigal Amir (b. 1975) believes that he has a divine sanction, even a divine obligation, to kill Jitzak Rabin (1922–1995). Scott Roeder (b. 1958), the Christian terrorist, thinks it is his heavenly duty to murder the American abortion doctor George Tiller (1942–2009). And Mohammed B. (b. 1978) obeyed what he believed to be a godly calling to end the life of Dutch filmmaker Theo van Gogh (1957–2004). All these cases involve murders that the killers viewed as divine commands. Of course, Antigone’s appeal to divine law is much more sympathetic in nature: she just wants to bury her brother’s remains. Indeed, the tension between Antigone’s sympathetic appeal to divine law and the unsympathetic appeals of the theoterrorists is a regularly recurring subject in this book.

Five characteristics of natural law

These examples, one of them drawn from classical culture (Antigone), and the others based in modern thinking (the examples of theoterrorism), confront us with the value of an appeal to a higher law that is offered as a model for the positive, state-issued law.
This higher law is also called natural law. The term is meant to convey that this type of law exists on its own: it is not of mankind’s own making, just like nature, in the form of trees or rivers, does not spring from mankind. The term natural law also expresses the immutability of the higher law, as well as the fact that it applies everywhere. Cicero (106–43 BCE) compares natural law to fire: just as a natural phenomenon like fire burns the same way in Athens as it does in Rome, so there exists a natural law that holds true for all places and times.9 The advocates of this tradition in legal thought are referred to as natural law proponents.
Although there is variety in the thinking on natural law, there are a few archetypal characteristics we can identify. The features we encounter in different combinations among natural law proponents are:10
  1. That there exists a law possessed of absolute validity
  2. That this law can be inferred from human nature or from the nature of reality
  3. That to know this law, man’s reasoning abilities suffice
  4. That a substantive test in the form of natural law principles is required for the application of positive law
  5. That positive law that does not pass this test cannot be considered valid
  6. That this substantive test consists of an assortment of speculative and metaphysical ideas.
Characteristic of this natural law are the following elements:
  1. Its status: absolute validity (1)
  2. The source from which it springs: nature (2)
  3. The knowledge instrument by which it is known: reason (3)
  4. Its purpose: a critical test (4 and 5)
  5. Its contents: metaphysical ideas (6).
This is natural law in what one might call its purest or most archetypal form. Historically, this type of natural law has been defended by the medieval theologian and philosopher Thomas Aquinas (1225–1274) and mostly Catholic authors who aligned themselves with his work. Incidentally, we have to be clear about what we mean when we talk about natural law “in its purest form.” Here, we are discussing its most common incarnation, meaning: a cluster of characteristics we see in different combinations in different thinkers. Some thinkers represent many of the characteristics, others fewer, and yet others fall outside of the definition altogether. The latter, those who cannot be called natural law proponents, are—unsurprisingly—the legal positivists, still to be discussed here. A thinker who, along with Thomas Aquinas, also meets nearly all the aforementioned characteristics is Sir William Blackstone (1723–1780), an author who was influential to American constitutional thought, particularly to the ideology behind the Declaration of Independence.11 Then there are thinkers who consider themselves to be part of the natural law tradition, or who are labeled as such by others, but who diverge on crucial points from the description given here of natural law as it is commonly understood.12 For instance, the modern natural law thinker John Finnis (b. 1940) objects to at least the fifth characteristic of natural law, by which a law that conflicts with natural law is declared invalid. Yet another natural law proponent, Rudolf Stammler (1856–1938), posits a natural law whose substance changes, thus abandoning the notion of an immutable natural law. Having said that, we will now focus on the natural law of Blackstone and Thomas Aquinas.


Thomas Aquinas’s philosophy in general, and his natural law philosophy in particular, was inspired by Aristotle (384/3–322 BCE), who in turn was a pupil of Plato (427–347 BCE).13 Incidentally, Plato and Aristotle do not provide a fully developed philosophy of natural law. Their contribution is its philosophical foundation: a view of mankind that might be characterized as idealistic. The idealist constructs a contrast between a world of pure, immutable values and ideas, and a world of constantly changing objects, detectable through the senses. Characteristic of the theory of ideas is that the world of ideas is thought of as more real, more “existent” than the world of sense-perceptible objects. For instance, as an idea, beauty is more real than the multitude of beautiful things around us.
In the Phaedo, named after one of Plato’s pupils, Plato introduces his mentor Socrates (470–399 BCE) as a conversation partner. Through Socrates, he gives voice to the philosophical foundations of the theory of ideas. Socrates says: “It seems to me that if anything else is beautiful besides the beautiful itself, it is beautiful for no reason at all other than that it participates in that beautiful.”14
That which makes an object beautiful, Socrates says, is that it partakes of Beauty itself. That which makes something large is the object’s participation in Largeness. And, in the same vein, that which makes a thing just is its partaking of Justice.
We call these general concepts ideas. In Greek, there are two different words for this, eidos and idea, which mean basically the same thing.15 Plato’s Socrates calls the assumption of their existence a safe hypothesis: it is something he must accept in order to explain reality and our judgment of it.16 He says: “I 
 assume that there are such things as absolute beauty and good and greatness and the like.”
Of course, this absolute goodness and beauty cannot be observed through the senses. People ask Socrates if he has ever seen such things with his eyes. He answers: “No, never.” They ask him if he has ever touche...

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