Anno Domini Dies Unus, In Mortem; In Lucem
The Duality of Life; The Dichotomy of Existence.
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“Life is warfare and a journey far from home. Then what can guide us? Only philosophy.” (Meditations, V. II, Aurelius, Marcus, 167 A.D.)
Birthed within all human flows the essence of natural law, “Thou shall not kill.” (Moses, The Ten Commandments); so too, is the knowledge of legal positivism such as self-defense laws contained within the child. Inherent from the onset in thought of the human child is deeply a rooted moral character, as well as the ability for qualitative and quantitative analysis in the moment. Therefore, to the child who does not want to hurt his neighbor for it against the essence of the natural law to a child sees the nature of law morally right to hit his neighbor where the child feels justified in protection. “I only got into that fight at school because Chad started it.” To the mind of the child, the morally correct thing to do in that situation was to fight for protection in the form of self-defense. Though it against the child’s deeply rooted moral code to not hurt other children, so too is deeply rooted scientific analytical reasoning for a given situation, and what are morals to the threatened child? Therefore, the child learns it is not always morally wrong to hit other children, but still deeply rooted within the heart of the character the child knows it is always morally wrong to hit other children. So, the dichotomy of what the child knows and what the child learns as law are in conflicting opposition.
The country of Israel, the holy land of the first monotheistic religion, has a two-year military mandate on service for all qualified citizens upon their eighteenth birthday. The devote child of Abraham for eighteen years is now faced with being sent to war to kill for that very nation. This is no different than the stories of young King Josiah going off to war against the invading Babylonians, except the child has grown up in strict observance to the Laws of Moses. Now his country asks him to kill for the government now in powers war for the social contract the child was brought into. The child knows that it is morally wrong to hit his neighbor, he learned the pains the soul itself suffers at the separation between mankind. The child has also learned of all the horrendous atrocities of war that gives reason to sacrifice in the country given to Abraham for the people of Israel for all of time. The child knows one thing, has learned another, what does the child hold as his law in order to survive the war. For to not kill, is to die, and to kill, is an unspeakable burden for the soul, one that often shatters the bearer of the weight. What law does the child hold sacred enduring the immolation of war to survive? Does the soldier pray to the heavens for Divine intervention, or does the child use his refined tactical scientific analytical reason for refined military intentions?
The term jurisprudence is derived from the Latin phrase juris prudential, meaning the philosophy of law or scientific study of the law. Contained within the philosophy of law there are many different properties where the most frequent form of jurisprudence seeking to analyze and criticize bodies of law. Other facets of jurisprudence compare and contrast law with other fields of knowledge such as religion, or social sciences, and to reveal the historical basis of a particular legal or moral concept. The most abstract feature of jurisprudence is directed at finding the philosophical answer to esoteric questions, such as 'What is law?' or 'How to judge a case?” Here, in the most abstract aspect of jurisprudence is in question with the soldier trying to judge what is law, in this particular case.
In legal philosophy there is an established dichotomy over the appropriate basis of law between the natural theory of law and the legal positivist thought. Naturalists maintain that moral philosophy, religion, human reason and individual conscience are integrate parts of the law. The theory of natural law insist that the rules enacted by government are not the only sources of law, but rather the main source of law is handed down by the divine. Positivists, on the other hand, support the theory that there is no correlation between law of man and morality and that the only foundations of law are rules that have been expressly enacted by the governmental or court of law. For hundreds of years, jurisprudence has been dominated by this debate, which stems from the premise that our legal system generate rights and obligations that are distinctively legal. The question at issue between diametric oppositions is how these rights and obligations are determined where the proponent of naturalism maintains that moral facts must play a part in determining their content while positivists say that their content is determined exclusively by social facts. Naturalism preserves that it is fundamental that the law is reflective of eternal principles of morality that exist independent of governmental recognition whereas positivism proposes that the law must be restricted to the written regulations promulgated or acknowledged by the governing authority.
Does the classical dichotomy of legal philosophy offered in Naturalism and Positivism offer any valid foundation in future jurisprudential analysis, if not, is there a more viable option moving forward addressing legal issues for the soldier? To start at the very core of the problem one must ask what is Naturalism and the natural theory of law and what is Positivism and the legal positivist theory of law?
As Saint Augustine put it in his natural theory of law, lex injustia non est lex, legal systems have a purpose to secure justice for the benefit of society in that “law has as its purpose the common good of the community.” Natural law is bound with the conception of the dignity of man ever since the early stages of social community. Saint Thomas Aquinas goes on to classify natural law into four categories of law; human, divine, eternal, and natural law. He defines human law as, “an ordinance of reason for the common good promulgated by him who has the care of the community.” ; natural law as the component of eternal law that applies to human beings, it is God’s plan for us; divine law as the part of eternal law that God reveals to us human beings via Scripture.
The fundamental thesis forwarded by Aquinas is that natural law is the participation in the eternal law. Eternal law, for Aquinas, is the plan by which all creation is ordered, and natural law is the way that human beings participate in the eternal law. Aquinas defines law as, “a rule of action put into place by one who has care of the community; and as God has care of the entire universe, God’s choosing to bring into existence beings who can act freely and in accordance with principles of reason is enough to justify our thinking of those principles of reason as law. ” Proponents of the philosophy naturalism believe any law which conflicts or is inconsistent with either natural law or divine law is not really law at all. Thus, not only is there no moral obligation to obey it, but there is no legal obligation to obey it either.
The thesis of Aquinas’s natural law theory that comes to the fore is that the natural law constitutes the basic principles of practical rationality for human beings, and has this status by nature. The notion that the natural law constitutes the basic principles of practical rationality implies, both that the precepts of the natural law are universally binding by nature and that the precepts of the natural law are universally knowable by nature. These notions of the natural law are binding by nature in that no being could share our human nature yet fail to be bound by the precepts of the natural law. This is so because these precepts direct us toward the good as such and various particular goods. The good and goods provide reasons for us rational beings to act and to pursue the good and these particular goods. As good is what is perfective of us given the natures that we have the good and these various goods have their status as such naturally. It is sufficient for certain things to be good that we have the natures that we have; it is in virtue of our common human nature that the good for us is what it is. The precepts of the natural law are also knowable by nature. All human beings possess a basic knowledge of the principles of the natural law. This knowledge is exhibited in our intrinsic directedness toward the various goods that the natural law enjoins us to pursue, and we can make this implicit awareness explicit and propositional through reflection on practice. Aquinas takes it that there is a core of practical knowledge that all human beings have, even if the implications of that knowledge can be hard to work out or the efficacy of that knowledge can be thwarted by strong emotion or evil dispositions. St. Aquinas holds that human beings intrinsically know by inclination a variety of things that qualify as “good” and thus to be pursued such as life, procreation, knowledge, society, and reasonable conduct. Contained within this theory is that the individual is able to reason from these principles about goods to guidelines about how these goods are to be pursued.
St. Aquinas does not obviously identify some master principle that one can use to determine whether an act is intrinsically flawed. An act might be flawed through the circumstances: while one is bound to profess one’s belief in God, there are certain circumstances in which it is inappropriate to do so. An act might be flawed merely through its intention to direct oneself against a good such as murder or lying , is always to act in an unfitting way. Aquinas has no illusions, as if for every situation in which there is a correct choice to be made there will be a rule that covers the situation. But he denies that this means that there are no principles of right conduct that hold everywhere and always, and some even absolutely. On Aquinas’s view, killing of the innocent is always wrong, as is lying, adultery and that they are always wrong is a matter of natural law.
Thus, the natural theory of law has evolved from this view which holds that the natural law is intrinsically given by God and by nature is authoritative over all human beings. Naturalism is the set of truths about morality and justice which are the legal rules that we must follow in order to lead a good or flourishing life. We can know what these principles are by means of unaided human reason. Immoral behavior against the human conscious violate natural law hence, immoral behavior is “unnatural” in the sense of “contrary to our function as a society. Whereas whereas virtuous behavior is “natural”. Therefore, natural law is the good for human beings are happiness, the living of a flourishing life. Happiness or flourishing consists in the fulfillment of our distinctive nature, what we “by nature” do best. That involves the development and exercise of our capacities for rationality where the moral virtues such as courage, justice, benevolence, temperance are character traits that help us fulfill our true nature.
Diametrically opposed to the natural theory of law is legal positivism where whether a certain rule is a law creating a legal obligation to comply with, depends on the promulgating source. The thesis comprising the foundation of legal positivism is the separability thesis. The separability thesis asserts that law and morality are conceptually distinct. Valid laws are simply rules that come from certain people such as city councils, state, or national legislators in accordance with certain procedures that the society enforces. As a doctrine, positivism maintains the basis for knowledge and thought should depend on the scientific method.
Legal positivism has a long history in ancient political philosophy and the term itself introduced in mediaeval legal and political thought. The modern doctrine most important roots lie in the political philosophies of Hobbes and Hume, and due to Jeremy Bentham. The theory emphasis is on legislative institutions replaced by a focus on law applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. Every human society has some form of social order. As way of encouraging approved behavior, deterring disapproved behavior, and resolving disputes about that behavior. For Bentham, the theory of law is a phenomenon of societies with a sovereign: a determinate person or group who have supreme and absolute de facto power. They are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign’s general orders that apply to classes of actions and people and that are backed up by threat of force or sanction. This theory identifies the existence of law with patterns of legislative and judiciary command that can be ascertained without considering whether the sovereign has a moral right to rule. Legal positivism maintains all laws as having a single form, imposing obligations on their subjects, though not on the sovereign itself, where ultimate legislative power may be self-limiting or limited externally by what public opinion will tolerate.
Legal Positivism holds that the legal theory must ultimately be rooted in some account of the political system. In a complex society there may be no one who has all the attributes of sovereignty for sovereign authority may be divided among separate branches of government and may itself be limited by law. The legal positivism theory of law maintains the authority of law is social. The ultimate measurement of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists because it is actually practiced which is used to guide conduct. The Positivist maintains law ultimately rests on the customs of society, customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision as sources of law and how laws may be changed. The source determining rule of recognition specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials, and it is not only that the recognition rule best explains their practice, it is the rule to which they actually appeal in arguments about what standards they are bound to apply. Thus, for the legal positivist the legal system is rule based all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is the habituation of behavior regarding which officials take “the internal point of view:” they use it as a standard for guiding and evaluating their own and others’ behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as “duty” and “obligation” when invoking it. The legal theory of positivism then has its ultimate basis in the behaviors and attitudes of its governing officials. Thus, necessary and sufficient conditions for the existence of a legal system are that those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and its rules of recognition specifying the criteria of legal validity must be effectively accepted as common public standards of official behavior by its officials.
The theory of legal positivism is a distinctive form of political order where whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing. No legal positivist argues that the systemic validity of law establishes its moral validity, such as, that it should be obeyed by subjects or applied by judges. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences, and both acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that “The science of law does not prescribe that one ought to obey the commands of the creator of the constitution.”
Looking forward for a solution for a more practical legal analysis moving forward it is necessary to view both the positive and the negative behind the driving jurisprudential forces of the past in natural law and legal positivism in viewing a solution for the future. Emmanuel Kant, the legal catalyst of the past, linking the past legal theories of the Roman Catholic Church to the emerging ever-changing social legal positivism theories of the times in Europe, so too here, there needs to be catalyst. A link from to the past to the present, moving forward in the future in the prevailing legal philosophy so as to adequately addresses the pressing needs of the ever- evolving future.
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