The architecture of law : rebuilding law in the classical tradition

This book argues that classical natural law jurisprudence provides a superior answer to the questions "What is law?" and "How should law be made?" rather than those provided by legal positivism and "new" natural law theories.

What is law? How should law be made? Using St. Thomas Aquinas's analogy of God as an architect, Brian McCall argues that classical natural law jurisprudence provides an answer to these questions far superior to those provided by legal positivism or the "new" natural law theories. The Architecture of Law explores the metaphor of law as an architectural building project, with eternal law as the foundation, natural law as the frame, divine law as the guidance provided by the architect, and human law as the provider of the defining details and ornamentation. Classical jurisprudence is presented as a synthesis of the work of the greatest minds of antiquity and the medieval period, including Cicero, Aristotle, Gratian, Augustine, and Aquinas; the significant texts of each receive detailed exposition in these pages. Along with McCall's development of the architectural image, he raises a question that becomes a running theme throughout the book: To what extent does one need to know God to accept and understand natural law jurisprudence, given its foundational premise that all authority comes from God? The separation of the study of law from knowledge of theology and morality, McCall argues, only results in the impoverishment of our understanding of law. He concludes that they must be reunited in order for jurisprudence to flourish. This book will appeal to academics, students in law, philosophy, and theology, and to all those interested in legal or political philosophy.

Introducing the building project -- Building law on a solid foundation : the eternal law -- Discovering the framework : the natural law -- Examining the framework : the content of the natural law -- Consulting the architect when problems arise : the divine law -- Decorating the structure : the art of making human law -- Appointing a foreman : the basis of authority and obligation -- Falling off the frame : the limits of legal authority -- The point of the structure : justice and the causes of law -- The reality of the art (not the science) of law.

Much of what is erroneous about contemporary jurisprudence can be summarized in a misunderstanding of the ancient legal aphorism: "what pleases the prince has the force of law" and "the prince is not bound by the law." In the non-regal American political context, the principle has been abstracted to the more generalized "the intention of the lawgiver is the law." The aphorism has become politically ambivalent. Whatever political system happens to be the reigning system for making law (a monarchy, an oligarchy, republic, democracy, totalitarian regime, etc.) is irrelevant. All that matters is that whatever the designated lawgiver decrees to be the law is the law without any other justification as long as the correct lawgivers comply with the reigning procedures for making and promulgating law. No higher legal criteria or foundation exists to make or judge or legally criticize human-made laws. In fact, this very procedure for making law itself is merely a creature of positive law. Law makers only have to comply with the "rule of law," meaning they comply with the way laws are made, until that rule of law itself is changed. Law has come to resemble the satiric remark of the English poet Alexander Pope "[o]ne truth is clear, 'Whatever IS, is RIGHT'." A common thread running between both classical and modern Positivism is the premise that law is in the end a product solely of human will (of either an individual or a society). Like cars and airplanes and computers, law does not exist by nature; it is fabricated by Men to help organize their common life. Although it might be helpful to coordinate activities, law is not, in the words of philosophers, a naturally occurring real being; it is merely a human construct. Although difficult to imagine, the world could exist without law. The pessimists view this world as possible but unpleasant (the Hobbesian State of Nature) and the optimists dream of a natural paradise in which all people are good and law would then be unnecessary.   If law is merely an artificial fabrication of Men, then it can be whatever Men want it to be. There are no universal intrinsic principles of law which enable us to identify any purported command to be law. It is simply a rule of behavior that once posited by someone in a position of power becomes law. John Austin, the father of the various forms of Legal Positivism, argued that any command to guide the behavior of persons that is given by one with power to back up his command is a law. In Austin's own words the idea of a command is "the key to the sciences of jurisprudence." According to Austin, "If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command." This understanding places law solely within the power of the will. It is a verbal manifestation of a desire or wish. For Austin, the source of our duty or obligation to obey this wish or desire of another is the fact that the one uttering it can inflict harm on us if we do not comply.  The only requirements necessary for some statement to become a law are that (1) it is the wish of someone (2) who can inflict harm on one who fails to comply. Law is located in the will of one person to move the will of another by threat of harm. Jeremy Bentham, a disciple of Austin, defined law as "an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state . . . ." Bentham's formulation ("or adopted by") indicates that politics has been transformed into the game of "capturing" the will of the sovereign (the levers of power). The sovereign need not even "conceive" of the new law or in fact desire it. If the sovereign can be made to "adopt" it, the new command becomes law. Law making is the art of persuading the sovereign to adopt one's particular desire. Thomas Hobbes expands this notion of human control over law to the very idea of justice itself. Hobbes argues that: "[W]e ourselves make the principles--that is; the causes of justice (namely laws and covenants)--whereby it is known what justice and equity, and their opposites injustice and inequity, are. For before covenants and laws were drawn up, neither justice nor injustice . . . was natural among men. . . ."  Even Positivists who have developed more nuanced positions beyond this blunt Austinian variety, such as H.L.A. Hart and Joseph Raz, are still faced with this strong dependence on the will to legitimize law. Although attempting to tone down the raw power element of this system by explaining how the sovereign (the dispute resolver) is bound by rules as to the way disputes are settled, they never offer criteria for establishing, evaluating, and changing these primary or system rules which ultimately rest on the will of the sovereign. The will of the personal sovereign has been abstracted into impersonal concepts or systems (Hart's "Rule of Recognition" or Kelsen's "Basic Norm"), but even if the collective will of a society over time replaces Austin's personal sovereign, the basis of the system is still unrestrained volition. The offspring of these theories is law as power politics. Pope Benedict XVI summarized the contemporary effect of the raw conception of power at the heart of modern law thus: Today, a positivist conception of law seems to dominate many thinkers. They claim that humanity or society or indeed the majority of citizens is becoming the ultimate source of civil law. The problem that arises is not, therefore, the search for good but the search for power, or rather, how to balance powers. For our purposes, two consequences follow from this concept of law. First, it contains neither a requirement that this wish or desire be reasonable to become law. There is no quality other than the desire itself being expressed by the right person or persons to conclude that the utterance is a law. A more refined Positivist might insist that an unreasonable law is a bad law but it is a law nonetheless. Secondly, if one having power to use force utters the wish, it is law regardless of the command's content. Hart attempted to soften this brute Positivism by arguing that not everybody has the power to issue commands backed by force. To have this power the one speaking must be authorized to do so through some other law (Hart's Rule of Recognition that tells us who has the power to command us to obey their wishes). Yet, this refinement only obscures the problem. It leads to an infinite regress. Who gave the one who commanded the Rule of Recognition the power to do so? Who gave that person the power to command, etc.? To avoid infinite regress, Hart merely assumes that a Rule of Recognition exists within every legal system and whichever one or more people it designates as having the power to command can make law. We find this assumed Rule of Recognition by identifying whomever we would recognize as the one holding the power viewed from within that legal system. More importantly, any restraint the Rule of Recognition places on whose command counts as law, does not restrict the content of the command. Even for Hart, law is a closed system that is caught within the internal point of view.   Excerpted from The Architecture of Law: Rebuilding Law in the Classical Tradition by Brian M. McCall All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.