Ordered Liberty and the Demands of Law

Ordered liberty flourishes where people govern themselves according to reason. Self-governing people make—design, craft, and promulgate—law to govern their own and others’ choices and actions. The artifacts of that law-making may be unreasonable or even unjust, but they are nevertheless laws. So the central tradition of Western jurisprudence from St. Paul to Aquinas to Hart to Finnis teaches that our legal choices matter, that our law-making is momentous and consequential.

Brian McCall goes a different direction in his new book, The Architecture of Law: Rebuilding Law in the Classical Tradition. McCall argues that defective laws are not laws because the power to make law is the power to design only as God directs. To build law not in conformity to God’s blueprint is to build without God’s authority, and therefore is to make no law at all.

McCall helpfully surveys the history of reflection on law’s architecture. The idea of law as something that humans design and make to meet human needs, like an edifice, has occupied jurisprudence since long before Thomas Aquinas called attention to it. McCall’s most valuable contribution is to trace the architectural theme through the central tradition of Western legal thought, drawing it out from not only Aquinas but also Cicero, Gratian, Justinian, Suárez, and even more obscure jurists such as Johannes Teutonicus.

Those familiar with Anglo-American jurisprudence will recognize in McCall’s account many of the themes sounded by more famous jurists, such as Coke, Hale, Blackstone, Story, and Jackson. The authority of law and its limitations, the indeterminacy of natural reason, the role of custom in specifying its norms and institutions, the role of the judge in interpreting rules equitably, and many other foundational concerns of our jurisprudence have antecedents in the classical tradition. McCall locates them using the architectural metaphor which has shaped Western jurisprudence for centuries.

Along the way, McCall develops his own theory about law’s architecture. At first, his theory seems to minimize the role of human agency in specifying law. Aquinas taught that God gives us divine law and natural law to enable us better to design our human law consistent with His eternal law, His design for all good things. Some things we may not choose without transgressing eternal justice–murder, deceit, and the other inherent wrongs involve an intrinsic hostility to human goods and law must prohibit such acts. But otherwise, we have freedom to choose what goods to pursue and how to coordinate our pursuit of them. By contrast, McCall insists that eternal law fully determines the ends of human action; humans choose only the means. With respect to their “due end, their style, and their art,” McCall says, “Men have no choice.”

McCall also seems to embrace an expanded role for legal and political authority over and against the primary authority of private orders. Non-paternalist natural lawyers, such as John Finnis and Aquinas, hold (contra Aristotle) that political authority is an instrumental, rather than an intrinsic, good. Authority is necessary to help individuals and groups achieve their own, basic goods, but it has no ends of its own. Against that view, McCall argues that all authority is legislated by God’s eternal law and is good in itself.

This raises a suspicion that McCall supports rule by philosophical theologians, those who alone understand what God’s eternal law requires. Because vice deforms our reason, McCall (rightly) affirms, “Only the wise (those not habituated to sin) will actually reach the proper conclusion of practical reason.” But in McCall’s account one can attain wisdom only by sustained reflection on God’s eternal law, revealed to us in God’s special revelations, and on human nature, by which McCall does not mean the basic reasons for which humans act but rather perfections of humans as they exist in fact. Thus, McCall affirms Jean Porter’s idea that the principles of practical reason do not become obvious to people as they act in the world and experience it, but only to those who attain a correct “theological and philosophical understanding” of human nature.

The spectre arises of rule by philosophical theologians. Natural lawyers throughout the centuries affirm the capacity of each and every human being to know the law of reason and to choose and act for what is good and right. McCall seems to reserve this power to those who possess the proper training and correct theology. Making law is not for amateurs, it appears.

However, in the book’s central chapter—its best—McCall clarifies that normal people can promulgate law. He examines at length the role of custom in specifying both the jus gentium and the jus civile. He affirms Harold Berman’s characterization of medieval law as “coming up from the customs of the people and coming down from the will of the legislator.” Though he has less to say about private law and private ordering, he affirms the radically distinct office of the family. And he allows that the grace which Christ makes available to all people enables its recipients to determine law, to exercise the law of liberty within the expanded domain of discretion which God allows to human agents who develop virtuous habits of self-governance.

McCall is less successful in his efforts to police the boundaries of the tradition and to identify its trustees. For example, he portrays Porter as the tradition’s contemporary champion and insists that analytical jurists such as H.L.A. Hart and John Finnis are outside of it. But anyone who consults those of us who are defending and developing the tradition on the groundin law and ethics—will see that those portrayals are implausible. Hart and Finnis are indispensable, and the jurisprudential schools they founded are producing insights about the architecture and nature of law in many different fields of both public and private law.

McCall attempts to drive a wedge between the legal concepts of Aquinas and Hart. But Aquinas affirmed, as Hart later would, that positive law is a distinct human artefact that can be studied in its own right. And like Aquinas, Hart rejected the simplistic notion that law is merely sovereign command. McCall is right that Hart usually identified justice with conventional morality. But Hart did not detach rules from practical reason, as McCall charges. In fact, Hart’s concept of a legal rule as a conclusive reason for acting presupposes that people can act for other reasons.

McCall attributes to Hart the view that law should be viewed exclusively from the internal point of view of a legal system, the “material object” of law. But the internal point of view in Hart’s theory, as in Aquinas’, is that of a law-abiding person, who takes law as a reason for action. Like Aquinas, Hart insisted that one can understand law only by viewing it both from the external point of view of speculative inquiry and from the internal point of view of practical inquiry about what is to be done (or not).

McCall also seems eager to place distance between Finnis and the natural law tradition. But rather than engaging Finnis’ writings directly, he mostly quotes others’ (especially Porter’s) misunderstandings of the natural law theory that Finnis developed decades ago in collaboration with the recently-late philosophers Germain Grisez and Joseph Boyle. Contra Porter (and other Finnis critics within the tradition), the Grisez-Boyle-Finnis theory does not teach that “nature… stands in contrast to reason,” does not “deny the moral relevance” of our animal nature, does not deny that basic human goods are ordered parts of a whole, and does not embrace a simplistic “positivist notion of legal hierarchy” as a “method for determining whose will wins.”

At bottom, McCall seems concerned that contemporary natural law theories make too cozy a peace with positivism. Yet Hart and Finnis follow Aquinas, as McCall at times seems not to, in recognizing that human law is a human artefact, a product of human creativity and action in what Aquinas, following Aristotle, referred to as the order of making. This does not entail that humans can reasonably make laws however they desire. It does entail that natural law and human law are not the same thing. Indeed, it is precisely the separability of human law from natural law, which Aquinas, Hart, and Finnis all affirm and explain, that enables one both to critique a human law as unjust, contrary to what natural law commends or, in a few cases, requires and to affirm that a duly-promulgated human law is a law even when defective.

An implication of the separability of law and justice is that the authority of a human law is only partly constituted by its conformity to natural reason. This is the predicate for understanding the famous Augustinian maxim, that a positive law directly contrary to natural law seems unlike a law (or its restatement in Aquinas, that an unjust law is a defective law). Though an intrinsically-unjust law is not an obligatory reason for action, it may nevertheless be a law in the sense of being posited as an authoritative legal artifact of the political community, and one therefore may have an obligation to accept the consequences for disobedience. Indeed, Aquinas taught that in some cases one must obey even an unjust law to avoid scandal and to encourage lawfulness. The tradition has always rejected anarchy, from Cicero and Saint Paul to Martin Luther King Jr. and Finnis.

McCall might seem to take the tradition in a different direction. He thinks that only determinations of natural law are law in fact. Whereas Aquinas taught that natural law consists of general principles of reason, and that humans must specify particular conclusions, McCall teaches that natural law also entails correct conclusions. Natural law delegates to human lawmakers the authority, and only the authority, to make valid determinations of the eternal law. Laws that promulgate invalid determinations exceed the delegated authority of the human lawmaker and are not legal laws. Therefore, he argues, “If a human authority commands something other than a valid determination of natural law, it is not a law at all.” So, for example, McCall thinks that a conscientious judge has a duty to avoid the apparent meaning of a statute that would require the judge to transgress divine law, such as the Fugitive Slave Act. This seems radical. However, he later clarifies that he follows the tradition in locating responsibility for particular justice in equity which, rather than abrogating law, instead interprets law to avoid imputing an unjust intention to the lawmaker.

Such cases of direct conflict between human law and natural law are rare. Most law consists of matters of indifference, which human law may reasonably specify in different ways. McCall is firmly in the center of the tradition in describing human law’s specification of those matters. Because the obligation to obey human law is itself an obligation of natural law, positive law’s permissible specifications are themselves binding obligations of natural law, determinations of what reason requires as a matter of conscience. McCall says that, though the human will cannot render all actions just, in matters of indifference it “has the power to make a particular act due in justice.” The implication of this teaching is awesome: Those who exercise power to specify law in rules and judgment are not merely exercising the coercive powers of government, they are determining the moral obligations of their fellow citizens.

The book is worth reading. Those not immersed in the classical tradition will benefit from this introduction to some of its lesser-known themes, as long as they take McCall’s boundary-drawing with a substantial grain of salt. Those who know the tradition well will find in McCall’s expression of it fresh and challenging glosses and close attention to its most vexing questions.