After reading this article you will learn about the law and justice.
The law which has hitherto been in question is positive law: law which is declared and ‘set’ (positum): law which is recognized by the courts and actively enforced by their action (impositum). Positive law is a large term, which embraces many divisions. If you look at its origin, asking yourself how it carne to be and in what ways it was made, you will say that some of it is common law and some of it statute law.
If you look at the matters with which it deals, and examine its content, you will say that some of it is primary or constitutional law and some of it secondary or ordinary law; and dividing the latter again, according to its subject-matter and content, you will go on to say that some of it is criminal and some of it civil law. But all the divisions, taken together, are one body of positive law, in the sense of a body of legal rules actually ‘set’ and actively enforced. But is that the whole of the matter?
Is the notion of law exhausted by the conception of positive law? Here we are faced by the question whether there does not exist, side by side with the positive law which contains and expresses actual validities, another law which contains and expresses ideal values (values, possibly, none the less real for being ideal): a law which we may call ‘natural’, because it corresponds ‘to the nature of things’ or to the nature of man (as a rational being living, or intended to live, in harmony with the rational nature of things): a law founded on what is right in itself, on what is just everywhere and at all times, on what is valuable whether or not it be valid.
The question is as old as the Antigone of Sophocles; and Aristotle, in a passage of the Rhetoric, already supplied an answer. Distinguishing between ‘particular law’, which is ‘the law defined and declared by each community for its own members’, and the ‘universal law’ of all mankind, he notes that the latter is ‘the law of nature; for there really exists, as all of us in some measure divine, a natural form of the just and unjust which is common to all men, even when there is no community or contract to bind them to one another’.
He cites the lines of Sophocles:
Not of today or yesterday its force.
It springs eternal – no man knows its birth.
The answer thus suggested by Aristotle was further developed by the Stoic philosopher Zeno and the Stoic school which he founded; and it passed from the philosophy of the Stoics into the jurisprudence of Rome. By the side of the positive law, the jus civile, recognized and enforced on Romans by the courts of the civitas Romana, the Roman jurists, in process of time, set the conception of jus naturale.
This jus naturale may be defined as a ‘law imposed on mankind by common human nature, that is by reason in response to human needs and instincts’. But it is not ‘imposed’ in the sense that it is an actual body of law, recognized as such and enforced as such in the Roman courts of law.
It is a spirit rather than a letter: a spirit of ‘humane interpretation’, present in the minds of jurists and judges, which affects the law that is actually enforced, but does so without being actual law in the strict sense of the word.
Yet the fact remains that the Romans cherished the conception of a law distinct from the positive law of the State (even if it was a spirit rather than a written and visible letter); that they regarded this law as universal, because it came from man’s common nature and extended its range to all mankind; and that they gave it the name of ‘natural’ in contradistinction to the positive law which was the ‘artifact’ of the civic community.
The distinction drawn by the Roman jurists was sharpened and hardened in the course of the ages. Natural law became something more than a spirit of humane interpretation, subtly penetrating and quietly affecting the administration of positive law. It became a separate and almost rival body of law, claiming recognition and demanding enforcement by itself and in its own virtue.
Two different, and indeed opposed, forces, acting at different times, conspired to produce this consummation. On the one hand, the Catholic Church espoused the conception of natural law; and the force of religious faith added majesty to a law which the Church interpreted as drawing its origin, through man’s divine faculty of reason, from the very being of God.
On the other hand, and at a later date, the secular spirit of rational enlightenment equally adopted the conception; and during the seventeenth and eighteenth centuries the secular force of rationalism, expressed in what may be called the secular school of natural law, brought the principles of philosophy (Cartesian or Leibnitzian) and the resources of logic to impress a new stamp of science on a law which was now interpreted in terms of reason and not of faith.
Under such different auspices the natural law of mankind was made to confront the positive law of the State as something separate from it, something which might be opposed to it, and something which, in the event of such opposition, ought to be deemed superior to it. Laws became ‘two and two, one against another’; there was a natural law and a positive law, and the two might fail to meet.
We thus seem driven to ask ourselves, ‘Are there two separate laws, and is one of them “against the other”? To put the question in that way, and to attempt to think in those terms, is to run at once into heavy weather and to steer a difficult course. If the State is a legal association, it must have one law as the condition of being one legal association or State.
If there were two laws, there would be two States; or at any rate every member of the State would be torn in two by the question, ‘Which law am I to obey?’ Any theory of two separate laws is at once face to face with the possibility of a conflict between the two, and is thus confronted by the problem of finding a solution of the conflict. Theorists who gave their adhesion to the school of natural law were ready with their answer: in any case of conflict, natural law carried the day.
Blackstone himself, in a passage of the Introduction to his Commentaries in which he is following, and even copying, a contemporary Swiss theorist of the school of natural law, can Jay it down that ‘the law of nature . . . is of course superior in obligation to any other … no human laws are of any validity if contrary to this’.
The difficulty of such an answer was that there was no certain and known body of natural law; and even if there had been, there was no established system of courts to give it recognition and enforcement. In practice two things happened, which themselves conflicted with one another.
In normal times it was allowed that positive law, as being known and enforceable, must necessarily prevail. In revolutionary times, as for instance during the American Revolution and the issue of the Declaration of Independence, an appeal was made from positive law to the ‘evident truths’ contained in ‘the laws of Nature and of Nature’s God’; and popular resistance was used to enforce the appeal to these truths.
But a law (or laws) which operates only in revolutionary times, and operates then to overturn the State, can hardly be law in any real sense of the word. Real law must be constantly operative, and it must at once sustain the State and be sustained by the State.
We may therefore put the question which confronts us in a different form. Instead of asking whether there are two laws, ‘one against another’, we may begin by assuming that there is only one law, in any real sense of the word, and that this is the positive law which is actually imposed upon us, as members of a State, by the definite declaration and specific recognition of the organs of that State, legislative and judicial, and by the process of continuous enforcement which they apply.
But having made that assumption we may then proceed to ask whether there are not two sources of this one law:
(1) The personal source of a human authority (which may, in the last analysis, be the authority of the community itself, acting through organs evolved by it for the purpose of declaring, recognizing, and enforcing its own sense of the necessary rules of its common life), and
(2) The impersonal source of an inherent rightness or justice, which adds to a law proceeding from the personal source of a human authority the further strength of a sense that it is right and just in itself, apart from, and over and above, the fact of its being declared to be law.
If we make this distinction, we may say that authority gives validity to law, and justice gives it value. A law has validity, and I am legally obliged to obey it, if it is declared, recognized, and enforced as law by the authority of the legally organized community, acting in its capacity of a State.
A law has value, and I am bound to obey it not only legally, and not only by an outward compulsion, but also morally and by an inward force, if it has the inherent quality of justice. Ideally law ought to have both validity and value. We may even say that it is only because law, as a whole and in its general nature, possesses both attributes, that it actually operates and is actually effective.
At the same time we must recognize that, for the purposes of the legal association, it is sufficient that a law has validity, and we are legally bound to obey it if only it has that attribute. Though law as a whole, and in its general nature, has both validity and value, any particular law may have only validity But that is enough to involve an absolute legal obligation.