What is the law? When can we ignore it? Part 1: True Law
Civil authorities make many bad laws. This is an inescapable part of the human condition.
The majority of bad laws are simple failures of prudence: These laws do not, for a wide variety of reasons, accomplish the ends for which they are enacted and, in the process of not accomplishing those ends, they do some ancillary harm, such as increasing costs or causing a certain measure of inconvenience. But as our culture shears away from a recognition of the natural law, statutes and regulations more often present us with a genuine moral dilemma.
Since laws which actually require citizens to do evil are becoming more common in our societies, we need to closely examine the nature of law to answer the question of when we may refuse to obey the law. I will divide this discussion into two parts. In this first part, we will consider the nature of human law.
What is human law?
In his insightful book Aquinas and Modern Science (which includes the social sciences), Gerard M. Verschuuren reminds us of St. Thomas Aquinas’ teaching on what makes human laws valid. A proper understanding is rooted in the four causes of all human law:
- The material cause is the public promulgation of the law;
- The efficient cause is the proper authority to promulgate the law;
- The final cause is the common good of the people;
- The formal cause is a precept of reason in accordance with the natural law.
In introducing these causes, it would have been more precise of me to ask “what constitutes a human law” rather than “what makes human laws valid”. When we think about human law in terms of its proper causes, we see immediately that if one of the causes is lacking, the human prescription we are examining cannot really be a law. Rather, lacking one of its causes, the putative law has failed to come into existence. Instead, we have a kind of legal imposture, which we may refer to as a law at times for reasons of linguistic convenience.
An example of this more accurate understanding is found in the traditional axiom that any human law which violates the natural law is null and void—which really means, of course, that it is not a law. This human prescription in question may have been promulgated as what we call “positive law” and may now be “on the books”. The courts may recognize it as law and adjudicate cases accordingly. The government may punish violations of this alleged law. But it is not a law and, in consequence, it cannot bind.
How the causes work
This will be immediately obvious to us if we reflect a bit on the four necessary causes of law. For example, we will have no trouble grasping the truth that if no law has been promulgated (that is, if a prescription’s material cause as law is lacking), then there is no law to obey. The fact that all of our neighbors assume that there ought to be or even really is a law against X does not mean that a law against X has been promulgated. And if this putative law against X has not, in fact, been promulgated, then there is no law against X to obey.
Similarly, it is not difficult to see that if there is no efficient cause of an alleged law, then there is no law. It is not enough, for example, for the Local Citizen’s Club to proclaim we must all drive at the walking speed of three miles per hour in a school zone. Not one of us would accept a “ticket” from a member of the LCC. If the properly constituted governing authority has not promulgated this as a law, then we may treat it as no more than a pious thought. Indeed, we will crawl through the zone at 3 mph only at the risk of arousing the anger of those behind us, for there is no law to obey, and sensible citizens will think it no part of their moral duty to obey the latest insights of the LCC.
The final cause of the law—the common good—is more difficult to assess, though we all have at least limited experience with how it affects the force of law. Thus, for example, there are many laws on the books in every long-established jurisdiction which are routinely ignored and no longer enforced simply because their relevance to the common good has ceased to be recognized. When I checked recently, for example, in the State of Connecticut there was a law that pickles must bounce when dropped from a height of one foot; and in South Carolina, it was illegal to dance on Sundays.
I will return to the problem posed by statutes which undermine the common good in Part 2. Here I will merely provide a rather obvious example of how the absence of the final cause can come into play. Suppose there is a law that forbids walking on the lawn of a public building. Now suppose that a large number of people are in the street at the edge of this lawn, and a huge truck comes roaring down the street. In this instance, at least, we can see that the final cause of the law has ceased to exist. A just civil power would regard the law as null under these circumstances, and would not prosecute people for escaping onto the lawn.
The natural law
If we can see how the material, efficient and final causes of the law affect whether or not a human statement must be considered a law, we should have no trouble grasping the impact of the formal cause. The “formal cause” is the pattern that determines the form taken by something. It is this pattern that distinguishes one thing from another, and all sentient beings recognize such patterns in distinguishing between such things as a horse and a house or monkey and a man. The formal cause determines why something is one thing and not another thing.
Now it so happens that everything that exists is governed by the eternal law of God, which God imparts or communicates to His creation. This is provable by reason, but that must be passed over here to keep our focus. Suffice it to say that because we perceive this law as “built into” the natural world, we call it the natural law. It governs how each natural thing attains the proper ends for which God sustains it in being. We are most familiar with it in thinking about the absolute goods and evils that are constituted within our human nature. Thus, for example, everyone in the world instinctively objects to being treated “unfairly”, as soon as he or she is old enough to recognize that reality—for fairness among human persons is part of the natural law.
Wayward desire, of course, can lead us to obscure or ignore the natural law. We may even be carefully taught (especially in public schools) to obscure or ignore it by those who have imposed specious justifications of particular desires as political requirements. But our instinctive common moral sense is always in evidence, and this moral sense exists only because the natural law is part of our nature. Even without further proof of this truth, it should at least be clear that if the formal cause of a human law is lacking—if, that is, a human enactment violates the very form that makes a law what it is—then this enactment cannot be a law.
In other words, insofar as a human enactment cannot be described as a precept of reason in accordance with the natural law, it is not a law. It may fail because it is not a precept of reason at all, as in the enactment that “henceforth all circles will be square”. Or it may fail because the precept of reason contradicts the natural law, from which the difference between good and evil must be discerned. It is the lack of its formal cause which invalidates any human enactment contrary to the natural law—because without its formal cause, no law can exist at all.
Unfortunately, such deficient enactments of governmental authority are still going to be called “laws”, and there will still be consequences for breaking these “laws”. In Part 2 I will consider when it is necessary to run the risk of breaking them, and when it is not.
Next in series: What is the law? When can we ignore it? Part 2: The Common Good
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Posted by: Jeff Mirus -
Mar. 07, 2018 5:26 PM ET USA
[email protected]: Ouch! Lacks courage? Better to say that this article is not about which laws in a particular society violate the natural law (something that is mostly obvious to our readers, but varies from country to country), but about the nature of law itself, in order to understand exactly when and why one may sometimes have to refuse compliance with a law—as we will see in the second half.
Posted by: Jeff Mirus -
Mar. 07, 2018 5:08 PM ET USA
seebert424930: The vast majority of human laws do not deal with absolute morality as discerned through the natural law. Prudential matters are very different. How do we best secure some aspect of the common good? Highway taxes or toll roads? Septic tanks or public sewage systems? When should an organization be tax exempt? What laws should be passed to control pollution? Does public safety require a curfew? Who gets to have what weapons? And on and on. Such things must be arranged prudentially, within the moral limits of the natural law. They are in accordance with the natural law as long as they do not violate it. But you will look in vain to the natural law for guidance on the vast majority of laws, which are fundamentally prudential in character, and either serve the common good effectively or do not. For such laws, impact on the common good, not absolute morality, is the proper test.
Posted by: [email protected] -
Mar. 06, 2018 11:44 PM ET USA
Great summary but lacks courage as to specificity of some existing laws. Some are being challenged in court and prayerfully hope these laws will be thrown out.
Posted by: Randal Mandock -
Mar. 06, 2018 7:18 PM ET USA
What you write is precisely the reason why I reject in the modern age the term "rule of law." In its place, I prefer "rule of justice" because justice is what true law is about. But this is where many modern positive laws take a detour from validity. Although they are sold to us as guarantors of the common good, created by proper authority, and generally well promulgated, they fail to uphold any intrinsic good or to condemn any intrinsic evil, either setting aside or contradicting prudence.
Posted by: seebert424930 -
Mar. 06, 2018 5:49 PM ET USA
This part of Aquinas always bothered me. Prudence on the right, Pastoral on the left, both seem to be morally relativistic to me- getting away from law based on objective natural law morality, and towards law based on emotions and non-factual subjectivity.