One of the many problems of the Modern (mis)understanding of human law is the fact that Moderns see no limits to it. In other words, they think that anything can be made into law and that law can do stuff it certainly cannot. As for the former, it is enough to say that according to German law at the time, the Nazis did not break any law when they murdered millions of people. As for the latter, the repeated attempts to change society by changes in law, as if the law itself had magical powers, show how little it works.
St. Isidore said (Etymologies V, 21) that: "Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it leads to misunderstanding; framed for no private benefit, but for the common good." This was the standard view in Western Civilization until Modernity plunged its knife into her belly.
These are tall standards, and for a reason: while there are plenty of benefits in having decent laws, the bad effects of bad laws are much worse for society as a whole. It is better to have high standards and thus lose some benefits of having this or that nice little piece of law than to lower those standards and allow bad laws to creep in. With those standards, one can rest assured that most if not all bad laws will never attain the validity required to be accepted by the people. If — that is — the people are not Modern. The Germans, sadly, accepted Nazi pseudo-laws as if they were valid, and plenty of other Modern citizens of Modern countries do the same with any absurdity that gets passed by its lawmaking institutions. In non-Modern countries, on the other hand, as I wrote elsewhere, laws that don’t pass muster just don’t stick, that is, are not accepted as law even if they are duly promulgated and written in law books.
It is not that the average Brazilian, Nigerian, or Laotian read and understood St. Isidore, of course. It is the opposite: St. Isidore rationalized and wrote down what has always been a matter of common sense anywhere on Earth. Modernity is weird, and the countries that adopted this perverted kind of thinking are the exception, not the rule. This view of law has its basis in human nature and natural law, not on human will. Modernity, on the other hand, tried to wrestle the human mind out of the human body, therefore of human nature. Man, after all, is not a ghost-mind inhabiting a robot-body, but a single being composed of mind and soul, an actual instance of human nature. Neither an unembodied mind nor a mindless body can be considered to be the fullness of human nature.
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Now, let’s break down St. Isidore’s definition of the minimum qualities required for a law to be valid (not nice, better, or preferable: valid. As in, if does not pass muster on each and every one of these characteristics it just ain’t no law). It must be:
Virtuous:
Virtue is the habit of doing a good thing. Thus, a law that is virtuous is both a law that reinforces and/or conforms to a habit — that is, not a “just for this time” law — and that habit is good. It can neither be bad nor morally neutral — it must be good. Therefore, a law cannot require people to do something that is morally neutral, that is, something that has no intrinsic value or goodness in itself prior to being made mandatory by law. It must, thus, reinforce a habit of doing a good thing among the citizenry — a virtue —, neither creating out of thin air the goodness of doing such-and-such nor establishing a new habit that was previously unknown.
Just:
Justice is to give each his due, according to a certain measure of equity (or “fairness”). A true law, therefore, cannot give John what is due to Jack. It can reward good deeds and punish bad deeds, but it can neither treat the different as if they were the same nor treat the equal as if they were different.
Nowadays, with the at least theoretically laudable intention of redressing old injustice, it is common to find laws (as well as invalid “laws”) that propose a redistribution of something valuable (money, jobs openings, whatever) for the benefit of those whose people suffered in previous generations. It can be — in the good cases — a good example of giving someone what is due to him for having been denied his parents. In the bad cases, it can mean theft from the innocent on behalf of people who did (or suffered) nothing to have the right to receive those spoils.
Possible to nature
Now that is something quite often forgotten in our Modern times. Understandably, insofar as most forms of Modernity deny the very existence of human nature, and that is the nature Saint Isidore is talking about. Human nature is marked by the consequences of Original Sin. The most important of those, in our present context, is that it is much harder for us to do the right thing, and much easier to neglect our duties and let our baser instincts overrule reason. This is, by the way, one of the reasons why law cannot forbid all sins, much less mandate all virtues: the people who would be able to abide by such a law would have no need for that law!
Our fallen nature makes it necessary to give people some wiggling room, allowing lesser evils to be so as to avoid greater ones. That is why, for instance, prostitution only came to be criminalized in Modern societies, that deny human nature and pretend all citizens are (or can be coerced into being) irreproachable saints.
According to the custom of the country
This element needed for a law to be valid, alone, denies the possibility Modernity appreciates so much of using the law to change a society’s customs. After all, a law must be an expression, not a contradiction, of such customs. It does not need to be something that was already done in the precise way the law mandates (or the law would not be needed), but it must be in full agreement with previous customs. For instance, let us say that in a certain society there is the custom of warning people not to park their vehicles in places where they would encumber others. One family will have a small placard politely asking drivers not to park there, another will have a drawing of a car inside a “forbidden” sign, and so on. It is perfectly correct and according to custom to pass a law regulating these warnings, so that all a driver would need to look for was, for instance, a stripe of a certain color on the floor or a certain sign on the wall.
On the other hand, if in a given society there is a taboo against revealing how much money one has or makes, it would be against its customs to require this kind of information to be made public. Any “laws” passed in that sense would not be valid.
Suitable to place and time
It should be obvious, but few things are nowadays. Some laws are suitable for places with tropical climates, but would be absurd if imposed on the people of a cold place, and vice-versa. It could make sense to require drivers to at least possess tire chains in Canada, but not in Florida, for instance. Likewise, there are laws that would place a perfectly acceptable burden on denizens of a rich place but would be absurd if imposed on poorer folks. I remember reading somewhere about a Japanese law that basically prevented older cars from being registered; when a vehicle reached a certain age it would be sold to a poorer country, where it was regarded as a brand new car. The Japanese law could never be imposed on that poorer country, as it would essentially deprive its people of their right to own a car.
Similarly, there are laws that would have been perfectly OK in times of peace, but that could not possibly work in times of war, or laws that worked well when a place was composed of farms and not much else but that no longer made sense after it was developed.
It is worth pointing out that the quite common leftist accusation that this or that law would be behind the times has nothing to do with the sense of this element of validity. Their notion of time is fundamentally superstitious; for them, things would forcefully be better in the future than in the past (as I wrote elsewhere). This superstition will obviously lead to situations in which terminal moral and societal decadence is mistaken for improvement, thus attributing superiority to legislation that suits “the spirit of the (worse) times”.
Necessary
It is necessary for a law to be valid that it is necessary. I really don’t know how it is where you, my solitary reader, lives, but down here in Brazil I get the impression that “lawmakers” (it is a career, like that of cabinet makers) often spend time thinking about what they could propose as law. Need, for them, is way overrated; they really think they can always make things better with new and unneeded pseudo-laws. It is seldom the case, though.
Anyway, if there is no need, there can be no law. What is working doesn’t need fixing, even because the fix will probably break it. Of course, it doesn’t mean that “the Ten Commandments are enough” (or, in the American Civil Religion, “the Constitution is enough”); the Fifth Commandment forbids murder, but it doesn’t say what shall be the punishment for either a murderer in general of for this particular kind of murder. Likewise, it cannot say how an accused murderer shall be tried, and so on, as much of the details on how a particular Commandment can or shall be implemented depends on a given society’s culture.
Useful
Useful does not mean “bureaucratic complication that would theoretically allow the State to supervise something” such, as, for instance, driving licenses. One of the greatest problems of Modernity is the habit of (willfully?) ignoring how taxing bureaucracy can be. The typical Modern politician's thinking process is more or less along the lines of “if only people who could drive well were allowed to drive, we’d have fewer accidents; therefore, we must make it mandatory to pass a driving test”. The fact that passing a driving test and being able to drive well are completely different things simply does not register, and the vast bureaucracy necessary for the whole driving-licenses scam is not seen as taxing. With this kind of thinking, most of what they’d consider useful is, in fact, not only unuseful but, on the contrary, a real disturbance.
Clearly expressed, lest by its obscurity it leads to misunderstanding
I think this requirement is already .clearly expressed. :)
We must understand, in order to get the full meaning of this requirement, though, that it deals with what is a law in the Roman system. Case law, by its own nature, cannot be considered to be “clearly expressed”, as it is more of a matter of similarity than of application. On the other hand, nowadays even the places that used to rely on case law have been overwhelmed with administrative ordinances that are much closer to the Roman concept of law than to their old system. In the case of these, it makes sense. A law (or administrative rule) that forbids hedges that are “too tall” is useless, but another that forbids them from being more than 1.5 times higher than the average in the neighborhood, or higher than x meters, is clear enough.
Framed for no private benefit, but for the common good
Now we do have a problem, especially because in too-big legal systems (countrywide, for instance), special interests have much greater ease of getting their interests enshrined into law. Besides, there is also the problem of the legitimate rights of minorities. Common good demands a way to be found that preserves their rights without placing too heavy a burden on the shoulders of the majority, but where can the line be drawn? Enslaving, or virtually enslaving, a minority of the population may be in the interest of the majority, but the common good, by definition, must be common to all. In certain cases, it is for the common good that different groups are given autonomy and a certain degree of self-rule. On the other hand, in other cases, forced integration would be much better for all. Such could be the case, for instance, when that group’s culture will make their ghettoes hotbeds of radicalism that endanger the rest of the society, as with some present Muslim minorities in Europe.
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Few laws in Modern society would pass muster, as we have seen. It means, from a traditional, natural-law-based viewpoint, that they are simply not valid, that is, they are not real laws. The main function of (human) law, though, is to keep societies more or less peaceful and prosperous. What must one do, then, when the society one lives in is full of non-laws?
The traditional way to deal with it would be to consider the real laws, which in most cases are not written down anywhere, and follow those. What keeps society peaceful and working is not its combination of laws and law-enforcement systems, but the fact that most people will not behave in ways their parents or society at large would see as aberrant. They will, in fact, conform to laws that are not written anywhere, to customs that have the force of law. That is why one of the requirements for law validity is that it is “according to the custom of the country”.
Laws tend to become necessary when that regular avoidance of customs starts to show cracks. In other words, when a law forbids something it shows people are doing it. If it never crossed anybody’s mind to do it, there would be no need for the law. There are no laws forbidding people to eat dog feces, for instance. On the other hand, in certain cases, there must be a law telling people to collect their dog’s turds and dispose of them properly. This law, though, only becomes necessary when there are too many people leaving behind the gifts of their pets; if there is already a prevalent custom of properly disposing of them a law will seldom be necessary.
Lao-Tzu famously said that the greater the number of laws and enactments, the more thieves and robbers there will be. Tacitus, not less famously, stated that the more corrupt the state, the more numerous the laws. Both were hinting at the same fact: laws (and, even more so, pseudo-laws) are often used as band-aids on societies’ cancers. In a working society, laws are not important, and essentially work to help with the really small stuff: how should garage entrances be marked so it is obvious to anyone they are not parking spots? By what time in the early morning shall open-market stalls be assembled, so that the market can open decently early but the neighbors do not suffer from noise throughout their sleeping hours? And so on.
Now, in a decadent society, where custom-based societal order is already crumbling, people will often try to band-aid out the cracks that are showing in the supporting columns. That is the point with drug laws, for instance. Even in a society that is still alive, there will be a tiny percentage of anti-social elements who will engage in some forms of non-customary drug abuse. Even if 99,999% of people will not drink too much after dinner, there will always be a few who will, and for them, an (often customary, non-written) law that sends them to dry out for a few hours in a “drunk tank” may work. When a society is already crumbling down, on the other hand, there will be a much vaster number of people who will abuse not only customary drugs (in the West, it means basically alcohol) but also other, exotic stuff, such as strong analgesics, such as opiates. While it is always possible to pass a valid law to do something about them (say, sending them to forced rehab), the real problem here is not drug abuse, but societal collapse. And no laws can prevent societal collapse.
As Modern society is conceived from the top down, being “constituted” by a written Constitution and essentially thought of as more or less the human incarnation of its “just and fair” laws, with its real customary societal structures hidden from sight and mind, the temptation to legislatively plaster out-of-mind the structural cracks will be much stronger. Not that there is a way of fixing a broken society; the only thing to do is to go the Augustine way (not the “Benedictine” one) and pay attention to whatever is eternal while the broken society ends until a new one can work itself out. That’s how Medieval society came to be after the end of the Roman Empire, and that is the only option for the greatest part of our societies these days.
Carlos,
brilliant post! Written as a true Aristotelian-Thomist. Cleverly disguised as an exposé of the Natural Law, a subject Moderns have largely forgotten about because of the Mechanistic philosophy of Locke and Descartes.
Marc Mullie MD
Montreal