The Law: More Than Just The Text

Or, The Law: Epilogue.

There's a new U.S. Supreme Court Justice on the horizon, John Roberts. I don't know how much of a fight the Democrats will put up over his nomination. What interests me is that Conservatives seem to accept that he fits the bill of a judge who will perform a strict reading of the Constitution, not some constructionist who will find things like a "right to privacy" tucked away in the text.

It appears that Conservatives - in the U.S. and Canada - want the written law to be strictly held to, as if it is a static text who's meaning is plain to everyone. As if the only relevent factors in a given decision are 1) The evidence and 2) The strict text of the law.

I want to suggest this is basically impossible; since the law is a social activity, other factors will inevitably appear. A judge, in a case where a law or procedure is being challenged, will always engage in several layers of interpretation.

Case in point. Beliefnet has helpfully provided a handful of excerpts from John Roberts' decisions regarding religion in schools. From the Beliefnet description:

In the Lee v. Weisman brief, the government argued that public high schools should be allowed to hold religious ceremonies as part of graduation ceremonies.

From Roberts' decision:

We believe that evidence, including that adduced in Marsh and Lynch, shows that the Framers fully assented to the appearance of non-coercive religious practices in civic life. To focus, as the lower courts have done, on the fact that the specific type of ceremony at issue did not exist when the Constitution was adopted is to blind oneself to the broader truth on which Marsh was founded: that public ceremonial acknowledgments of religion were welcomed by the Framers and are deeply rooted in the Nation's heritage. /17/ Indeed, history suggests that listening to a religious invocation at a civic ceremony was seen not as an establishment of religion by the government but, on the contrary, as an expression of civic tolerance and accommodation to all citizens. . . .

Moreover, we agree that Establishment Clause concerns are triggered not only by coercion in the form of direct, legal compulsion, but also in the form of more indirect social coercion. For instance, we recognize that the special character of the public school setting has heightened this Court's sensitivity to subtle forms of coercion. See, e.g., Engel v. Vitale, 370 U.S. 421, 430-431 (1962). We do not believe, however, that graduation ceremonies pose a risk of coercion. Such ceremonies typically occur but once a year. They are addressed not to children alone but to families as a whole which are, as the Stein court noted, a natural bulwark against any coercion. Indeed, children in the family setting may hear similar invocations and benedictions at inaugurals and other public ceremonies. In short, whatever special concerns about subtle coercion may be present in the classroom setting -- where inculcation is the name of the game -- they do not carry over into the commencement setting, which is more properly understood as a civic ceremony than part of the educational mission.

Roberts is calling upon particular views gleaned from history and sociology - not the text of the law. Roberts isn't "giving a plain text reading" of the Constitution here; he's developing his own understanding of the social circumstances. The text of the law is only one factor, and not even necessarily the deciding factor.

This is something that needs to be remembered when Supreme Court judges tackle other contentious issues. Judges don't simply read the text of the law and hand down decisions; they have to choose between various interpretations of just about every field of human knowledge.

I'm not saying Roberts' reading is incorrect; he actually seems like a reasonable guy. But here we have an obvious example of why the law can be so messy, and why some court decisions can be so inscrutable.

The Law: Power and Recognition

When H.L.A. Hart began developing his theory of law, he insisted on placing it in a social context. This is a useful starting point; I think it will lead us down a path that will help us deal with the various contentious issues of the day.

For the sake of brevity, when I say the Law, with a capital "L," I mean a formal legal system as a whole. Lower case "l" is just an individual law.

Since this is a philosophy of law, it needs to be rooted in a particular conception of humans. I'll only sketch this out here, and will write more fully in a later post.

There are two common ways of thinking about the Law that I'm opposed to. The first is the Social Contract Theory (SCT) as concieved by either Hobbes or Locke. Basically, we all agree to not kill each other so we can engage in economic pursuits. The second is the "harm principle" as concieved by JS Mills. The Law exists to keep us from hurting each other, and has no other purpose.

Both of these ideas have an atomistic view of humans - we're all individuals, and we develop our lives in a solitary way. We can satisfy our desires without the aid of others, though others can inhibit our satisfactions. The Law prevents this inhibition.

I think it's more accurate to speak of "intersubjectivity." There are facits of our being that we can only explore and develop when engaged with other humans, and the word in general. We aren't solitary; our skulls aren't bunkers protecting our minds as we peer out at the world from the gunports of our eyes. We interact with the world and other humans.

This interaction is governed by the desire for recognition; we want to see that others desire us, and we want to affect the world. An ideal world is one big mirror, and that's what we constantly try to do; make the world mirror ourselves back to us.

One facit (certainly not the only) of this is that we want to have power over others. This power can come in the form of influencing individual behaviour - to have another person follow your commands. This also works on a more general level; we want those around us to recognize our behaviours and ideas as worthy. On a gut level, we believe the ideal expression of this power is that others act and think increasingly like us.

So here is the birth of Law: increasing our own influence and power in the world. Engineering the world to make it one big mirror. The inevitable danger here, of course, is totalitarianism. That's power run amok - making bloody well certain everyone is just like you. This is also the power of democracy; it creates an enviroment in which people compete for recognition without coercion. Democratic societies also most effectively nurtures other forms of the desire for recognition; art and work, as two examples.

This is why one of the insights of the Critical Legal theorists is so useful: the settled law is a temporary truce in an ideological war. A law is codified because an individual or group felt it was something that needed to be imposed on the whole of society. The Law is inherently political.

As an example, when anti-SSMers complain about being forced to recognize SSM, they're right. The question is, does the SSM law contribute to an increasingly democratic society, or a totalitarian society?

The political spectrum, on an average day, looks like a straight line. On one end you have totalitarianism and mutual extermination, and on the other end you have democracy. But it's not a straight line - it's a circle. Think of it like this; standing where you are now, it's far from obvious that the Earth is a sphere. You have to travel a great distance to gain a sense of roundness. And it's the same on the political spectrum - follow any political ideology too far, and you'll come back around to totalitarianism.

So that's why the basic question of any law is "is it democratic or totalitarian?" Does this law further enable people to pursue their desires, or does it force them to come in line with your own desires? The easy impulse is towards totalitarianism - it's like junk food. Only carefully considered and responsible laws can foster democracy - a healthy diet.

The Law: Critical Legal Theorists

Originally, the whole reason I started writing about the law was in anticipation of a discussion of same sex marriage. And now here we are, the day after the Bill passes. I suppose I should get cracking.

To recap the last four law posts, I talked about the evolution of jurisprudence. From Aristotle's Equity and Aquinas' Natural Law, to Hart's idea of the law as a system of rules dependant upon recognition. I ended with Dworkin's principles. There are many other systems, of course; Leon Fuller's internal morality, or Devlin's paternalism. But they aren't quite so interesting, so I'll skip them.

Back here, I talked about power and discourse. There's a philosophy of law based upon Foucault's (and those of other continentals) ideas - Critical Legal Studies. If this post is a bit choppy, it's because it's just my study notes for the final exam. Here, I'm just repeating my professor's presentation of CLS, not critiquing it myself. But suffice to say, I really like this account of law. Sorry for the length.

CLSers say the law is neither repressive or a repository of noble but perverted ideas. It is a discourse that quietly conditions how we experience social life. I.e., it creates distinctions between employers and employees.

The law creates categories of separation; we are individuals given rights to protect our isolation. Then the law provides formal channels to re-connect, through things like contracts, partnerships and corporations.

It also splits up the world into categories that filter our experience. For example, the law tells us which harms we have to accept as "the hand of fate," which are our own fault, and which are the fault of others. An example of this is sexual harassment; at one time, it was simply an occupational hazard for women.

The basic points: 1) Power. The law is not just the tool of the powerful - all of us invoke it every day. But the ability to actually wield the law on your own behalf is one of the primary sources of power in our society. I.e., money to pay for a lawyer. So the law will reflect the interests of those with the power to pay for it.

2) Legal discourses normalize the status quo. Even a complaint of discrimination implies that this single act of discrimination is only a momentary disruption that can be resolved through law - this is the belief that the system will work if you let it.

Another example is a middle-aged woman that buys a cheap promotional package at a dance studio, then is flattered into buying a giant, huge, expensive package. To get out of this contract, she'll have to pay for a lawyer who will argue that this was a case of fraud. Even if she wins, she has reinforced and participated in a system that assumes "‘normal' marketplace relations are unproblematically voluntary, informed, non-coercive, and efficient."

Our legal system presents a particular view of society to us: that society is a series of dealings between genuinely free and independent equals, and any appearances of inequality is just because the law has not been properly applied.

So the big premise - legal action is political action, and it is typically - though unnecessarily - conservative.

CLSers want to take the law apart and change the social discourse it has hardened.

Why isn't CLS more widespread? Legal educations make even lefties conservative because of all the money involved. Traditional legal educations talk about centrist positions - middle ways.

Methods CLSers use against mainstream legal discourses:

1) Trashing. It's a 60s' phrase. About making attacks against the system's claim that it is the best system. Trashers point out the inconsistencies and logical loops in traditional discourses.

For example, their attack on legal economists. Legal economists' basic assumption is that people are "rational self-interested maximizers of their satisfactions." In other words, they assume people "want" everything they get.

Which is silly. People are often irrational and, in truth, what they really want is non-material things such as the recognition of others. Legal economists are a product of our consumeristic culture. This is a type of individualism that the economists claim is universal, but it is a product of the market forces of our society.

The CLSers (aka Crits) don't totally dismiss legal economism; they just point out it is a type of rhetoric that can be manipulated. It isn't a science, just a sometimes useful perspective. It obscures from view - it can't even talk about - the huge portions of human existence that violent, coercive, irrational, etc.

Trashing is very similar to deconstruction; I'm not sure why CLSers bother to make the distinction.

2) Deconstruction. CLSers don't believe that the law is pure power or personal whim; there are patterns and CLSers use deconstruction to find the patterns. For example, there are plenty of laws that make it easy for business groups to pursue their political and economic interests, but make it difficult for labour, poor people, and civil rights groups to pursue theirs.

The law often holds contradictions within itself that can be deconstructed. Like contract law; there are two opposite views that underlie it. One is a neo-Hobbesian vision where everybody is out to get each other and we need the law to protect ourselves from each other. The other view is one where people will long term relationships assume a certain level of trust and responsibility. Both images are possible in every ruling about a contract, though the system persistently gives the Hobbesian view precedence and leaves the other view for minority cases.

3) Genealogy. This is about showing how the transitory and manipulable ways our legal discourses divide our world — write their history. Crits write a lot of histories of legal categories. For example, they write about how corporations went from serving the public interest to being private in the 19th century.

Another example is private property. The definition of private property has never actually had been definite or totally agreed upon. The legal system makes it seem otherwise, and Crits point out that this stability is an illusion.

An example case for Crits. A group of picketers demonstrate in a shopping mall, and are kicked out by the owner. The standard way to approach this case is to balance rights. The property right of the owner to exclude unwanted visitors vs. the protestor's right to free speech. The standard way to balance these rights is to discuss the private and public spheres. The more private a shopping mall is, the greater the right to exclude.

Crits would begin by discussing the justifications of property rights. Like the efficiency rationale that says the owner will yield the highest valued uses of the property. But it is not at all clear that shoppers dislike picketers, or that they dislike them enough to shop somewhere else. And even if shoppers don't like this, their preference might be like the preference of not wanting to sit next to blacks at a lunch counter and not entitled to recognition.

The privacy rationale for exclusion is much less convincing when you look at a mall as being owned by a bodiless corporation that lets hordes of strangers swarm over its "private" property.

While Crits would probably argue for the protestors, this doesn't mean that free speech isn't also subject to criticism. They still point out that when the mall owner yells "private property!" it's like a mystical incantation meant to silence criticism... and then the protestors shout their own mystical incantation, "free speech!"

That's the first phase of CLS - pointing out what's wrong with the system. The second phase is about trying to change things. Whether it is a basic re-assessment of democracy itself or localized activist activities like housing, immigration or labour.

One of the effects of the law is to constrain our ability to imagine alternative social arrangements.

For example, our current liberal system assumes the purpose of government is to facilitate the individual pursuit of self-interest. But there are other ways of doing things - ie, republicanism, in which politics is for facilitating self-development through participation in community governance.

Another example is "downward professionalization." Concerning welfare and social work, we could follow the New Deal-era example and give the broad discretionary power currently in the hands of judges and bureaucrats to street level social workers.

So why does CLS piss so many people off? It is the harshest critique of law since the legal realists. Just like the realists, it shows how malleable and arbitrary the law really is. The other challenge to mainstream legal thought is that CLS studies law in a social context - meaning it shows how politics and culture prevent formal legal rules from working like legal theorists (like Hart) say they should.

Since CLS is basically a radical movement of the left, that's enough to make some lawyers see "Red." CLSers get called Marxists, Stalinists, nihilists, hippies/yippies, anarchists, "Bolshevik saboteurs,"etc. Mainstream lawyers assume CLSers simply think the law is a tool of the capitalists to suppress the workers.

CLS has sophisticated opponents, too. After all, CLS is out to reduce the authority and legitimacy of the establishment. And CLSers aren't always polite in their writings; sometimes they use parody, satire and occasionally even scatology. The legal system gets a lot of its power from being solemn and, well, pompous. Lawyers are arrogant, and CLS takes it all down a peg or two.

CLSers run into a lot of trouble with the legal intellectual establishment, because they don't idolize guys like Austin and Hart. CLSers tend to look to Europeans for their heros, guys like Michel Foucault. To quote the author of my textbook,

"I have heard one. . . denounced CLS as ‘un-American' and another disparage it as infected with ‘French and German' influences. Ah, the Continent - that dark breeding ground of dirty postcards and pestilential philosophic vapours!"

Other opponents - the "technocrats" - are positivists. They think that the law is grounded in scientific ideas of regularity and certainty, and they hate the CLS reduction of social science to a bunch of rhetoric.

Some see CLS as a threat to liberal freedoms. If every "right" is capable of being turned upside down by reinterpretation with such ease, then what will we rely on to save us from fascists and the mob??? CLSers answer that the term "legal rights" is short hand for the social practices that we collectively maintain. We value the latent promises of utopia in them.

Sometimes the pretense that legal rules have an objective, fixed set of meanings is a good thing; if you're living under an oppressive dictatorship, then you'll want to appeal as often as you can to transcendent legal principles to try and force change.

But the idea of an objective source for legal rules can be oppressive too; they encourage people to think that the ideas codified in law are solid and unquestionable. As long as our rights are protected, we are told, we can't complain about anything.

"A commitment to legalism can never substitute for a commitment to the ideals law distortedly symbolizes."

He quotes Vaclav Havel, a Czech dissident. Even in ideal cases, the law is only one of several imperfect ways of defending what is good in life against what is worse. "Establishing respect for the law does not automatically ensure a better life, for that, after all, is a job for people and not for laws and institutions."

The harshest criticisms of CLS come from vetern lawyers, who are the most cynical people of all when it comes to the law. They've made their peace with the way things are, and have labeled that maturity; for the sake of their peace, they wish everybody else would follow suit.

The Law: Dworkin's Principles

Back when I started this law stuff, I intended to do 1 post of background, and then get to the stuff I actully wanted to say. And here we are, part four, and it's still just background. So I'm going to quickly blow through Ronald Dworkin's ideas, get to the CLSers, and move on to other things.

Dworkin argued that despite the gallons of ink spilled over the issue, the question "What is the law" had yet to be properly answer. He thought the Realists were arrogant, and that the Positivists answered many questions, but not the truly fundemental ones.

Realists argued that judges have true discretion, while Positivists say judges are bound by the secondary rules. Dworkin says neither answer is sufficient. In practice, judges do not have unlimited discretion and there will always be cases in which the rules are insufficient.

Judges are bound by principles. The distinction between principles and rules is important. Rules are hard and fast, all or nothing. A rule is meant to apply 100% of the time; all exceptions must be explicitly listed as part of the rule. If two rules contradict each other, one must be erased; they cannot exist side by side.

Principles work differently. Principles are not all or nothing; they can apply to some cases, and not to others. They do not have explicit exceptions, because the principles themselves are not explicit. They are simply part of our common conception of justice.

One of Dworkin's example cases is Henningsen v. Bloomfield Motors (1960). Mr. Henningsen bought a car; the warrenty said the manufacturer's liability was limited to "making good" defective parts, and abosolutely nothing else.

My textbook offers no details of the case, but for whatever reason Hennginsen argued that the manufacturer should be liable for more than just parts. At the time, there were no rules governing this issue, but the court decided for Henningsen. The court said that cars are important and dangerous, so manufacturers need to be liable for more than just parts. The court also said it couldn't support an agreement where someone's economic necessity has been exploited.

The court relied on principles - especially the bit about not exploiting economic necessity. The court considered another principle - the need to hold up contracts. Here we have two principles that contradicted each other; the judge needed to weigh the two against each other. This is another aspect of principles; they have weight. In each case, the judge must decide which of the possibily contradictory principles is the most important.

And how do judges weigh principles? Well, it's what you call a hermenutic process. Unfortunately, the rule of recognition cannot deal with principles; the RoR can only handle rules. Principles, Dworkin believes, spring from the meaning of justice itself.

For Dworkin, the law is a continuing story. Each judge - or generation of judges, I guess - writes the next chapter. When dealing with an open texture case, a judge needs to look back over the precedent cases, and find the themes and ideas that are most important, and find a way to tie his current case to those themes.

It's like writing a chain novel. Dworkin's example is A Christmas Carol. Let's imagine a judge in the position of basically writing the last chapter in this novel. How is he going to portray the character of Scrooge? Should the theme of capitalism run amok win out by chosing to have Scrooge continue his ways? Or should the theme of redemption win out, by chosing to have Scrooge reconcile with Cratchet?

That's the work of the judge; picking out the themes of the past and continuing the story.

The Law: Hart's Rule Theory

I told Titus that I'd have a post coming soon about why Francis Schaeffer is a terrible historian, but that'll have to wait for a bit. I want to finish this law stuff first.

After the battering legal positivism took by the Realists and the Holocaust, H. L. A. Hart stepped in to take a swing at defending it. He argued that Austin's command theory was pathetically simplistic - after all, the law contains a great deal more than "Don't do this, or I'll hurt you" type statements.

Hart begins by contrasting pre-legal primitive societies and complex legal societies. Both types of societies have particular expectations of their members. To remain a member of a particular society, you must accept its particular rules. These are the natural rules of obligation (NROs). Primitive societies, however, only have a small, limited list of NROs that are easily navigated by individuals and enforced by the society. Hart stumbles here and leaves a problem to be discussed later - how NROs are generated in the first place, and why they typically do not require violence to be enforced. He makes a great deal out of the difference between being "obliged" and being "obligation," but I don't think its as satisfying an answer as the Foucault, discourse-based Critial Legal Theorists will offer.

Complex societies, however, are made of many smaller groups, each with their own NROs; for a complex society to remain coherent, certain NROs must be agreed upon to become primary rules of obligation (PROs). These are the rules that apply to all of the smaller groups, whatever other NROs each group may impose upon their members.

Sexual issues can provide examples of both NROS and PROS. Typically, religious groups have rules against adultery. Remaining monogamous and faithful is a natural rule of obligation for many of these groups. It is no, however, a primary rule of obligation. One example of a sexual PRO that our larger, complex society enforces on everyone is a restriction on sex with children.

A formal legal system (FLS) is marked by its ability to identify these PROs through secondary rules of obligations. (SRO). These are the administrative rules that govern the creation of PROs. There are three SROs.

The first is the rule of recognition. (RoR) The RoR describes the proper source of laws in any given complex society - i.e., Canada's Charter of Rights and Freedoms or the United States Constitution.

The second and third SROs are closely related to the RoR, and many argue they are simply sub-sections of recognition. There is the rule of change (RoC) - who has the authority to change the PROs? The other is the rule of adjudication (RoA) - who has the right or responsibility to enforce the PROs?

There is another ambiguity that appears here. How is the RoR itself recognized? All PROs flow from the RoR - so the RoR cannot be a PRO itself. The RoR must first be recognized before it can generate PROs - meaning the RoR is in fact itself an NRO. To remain a member of a particular complex society, you must accept its rule of recognition. Hart is left trapped in circular reasoning.

Hart runs into another problem. A FLS cannot rely on rules alone; situations will continuously arise in courts in which the RoR has not generated a PRO, or in the validity of a PRO is being challenged. These are situations in which rules simply run out. Hart describes this as "open texture" and argues that judges are left to their own discretion in these situations. Hart almost becomes a Holmesian realist here. Hart's problem is that he cannot describe how and why a judge might handle an open texture case in a particular way.

And yes, that's where the name of this blog comes from. Open texture is where all the fun is!

And now, I have to decide: do I actually want to write a post about the Seperation Thesis, or just cut and paste my study notes? Or should I just move on to Dworkin's theory of the settled law? Decisions, decisions.

The Law: Austin Positivists and Holmes Realists

Since the Enlightenment, the project of building human life based on reason rather than transcendence has resulted in radical changes in the western world. Legal philosophers like John Austin sought to describe the legal system as a social fact, rather than as an expression of Natural law. Austin's system revolved around the idea of law as command, and was very simple. A law is a command of the sovereign, backed by threat of force. Austin also wrote on the seperation thesis - the idea that law and morality are separated, as opposed to Aquinas' overlap thesis.

A few problems appear here: who or what is the sovereign, and is the threat of force the real source of the law's power? Can the sovereign make any law it wishes, and is the law still binding? What is the law's relationship to morality?

Austin's brand of legal positivism was the standard in jurisprudence for several decades; then the Holocaust took place. The Nazi's use of the German legal system made it clear that the law was a much more complicated thing than a simple command backed by force. The imfamous "I was just following orders" defense was a major issue for legal philosophers.

As far as I understand, there have been three prominant perspectives on the law in the 20th century. The first to develop was legal realism - basically a group of really cynical judges. Remember, Aquinas was a theologian and Austin was a lawyer; the legal realists tended to be judges and so they had a different perspective.

The realists thought the idea of a theory of law was silly; better to actually watch the law in practice. Their answer as to the nature of law: whatever the hell a judge says it is. They don't start with rules and facts, they begin with a hunch, and work backwords from there. They argue this isn't a deficiency: this is the way the law is, and it is actually a good thing. It is the only way possible to achieve equity.

As far as I can see, this is a pretty court summary of how the courts work. Supreme court judges will trash cases brought before them - then agree with the conclusion of the case, and simply rework it themselves. They start with their conclusion and work backwards. Appeals are not about attacking conclusions per se, but rather about attacking the conclusion for an appeal.

And boy oh boy, this seems to be about right. I'm sure Joel will be happy to attest to the seeming randomness of some court decisions. When I was writing an essay on Creationism and Evolution in the American courts, the court decisions really seemed like the whim of whatever particular judge was presiding.

The legal realists are too wishy washy for some, of course. Next time I'll talk about the responses to this, hopefully in a single post.

The Law: Aristotle and Aquinas

All right, here it is, the director's cut version of my answer to my philosophy of law final exam question.

Asking after the nature of the law is a surprisingly complex task. At least, it was to me. There is a long list of sub-questions involved, ranging from fundamental issues of ontology and epistemology to more everyday problems like the authority of judges.

What, exactly, is a legal system? Quick answer: a discourse. You knew I was going to say that, right?

The long answer means teasing out all the peripheral questions surrounding the main question, and people have been doing that for literally thousands of years. This post is part one of I'm not sure how many, and here I'll kill two birds with one stone. I'll give a whirlwind tour of past thinkers, which will let me list the peripheral questions and give my own ultimate answer some historical context.

So let's go allll the way back to the Greeks. They began the western intellectual tradition when they decided the universe was ordered rather than random. Figuring out reality was a matter of figuring out how it was ordered.

Following from this, Aristotle said everything had four "causes" This doesn't quite mean the obvious "cause" of "cause and effect," but instead think of "responsibility." Everything has four things responsible for it, and is in turn responsible to these four things. The only one of the causes that concerns this whirlwind tour is the fourth one, the Final Cause. This is the inherant purpose of each thing that exists.

Man's Final Cause is to contemplate the good. Aristotle taught that man is a civic animal - we are dependant on others. The concept of rights didn't exist - in its place, the Greeks taught "duty." So, man is dependant on other men, and therefore he has duties towards them. So, the "good" means the "common good." Man's purpose is to work towards the common good, and this was the purpose of the law for the Greeks: to make society good so that each man could fulfill his final cause.

There's an important concept that comes from Aristotle - "equity." He knew that there is always a gap between general rules and actual life; no set of rules can cover every situation that arises in human life. So sometimes a judge needs to employ equity and go past a rule, and react to a specific situation. But how much freedom do judges have? That question was unsettled.

So do you see the two subquestions here? Aristotle was concered with the purpose of the law, and the amount of authority - or "discretion" - that judges have.

In the 13th century, Thomas Aquinas tried to synthesize Christianity and Aristotle. His philosophy of law is known as "natural law". Aquinas of course believed everything was designed and had a purpose. Everything from individuals to the state to the law has a purpose.

Aquinas discussed four levels of laws that are distinct, but work together.

1) Eternal law. The rational structure of the universe - only God has access to this.
2) Natural law. Relates specifically to humans; we all have it within us. We are designed to pursue good and avoid wrong.
3) Divine law. This is revelation, from the Bible and the Pope. It helps clarify the Natural law.
4) Human law. This is specific to society - trying to implement both Natural and Divine law. There is a gap between the abstract principles of Natural and Divine law, and Human law tries to make them concrete.

There are two types of wrongs for Aquinas. Something can be Mal in se wrong in itself. Or something can be Mal in prohibitum - wrong because it is illegal.

Laws flowing from the Mal in se can be just or unjust; they are valid to the extent that they conform to Natural and Divine law. If these laws violate Natural and Divine law, then they aren't really laws at all and the invidual is not under obligation to follow them.

Mal in prohibitum laws, however, can be fair or unfair. If a law is merely stupid or unfair, then moral obligation remains. An example is the restriction of smoking in downtown bars - Aquianas might agree it's a stupid law, but you still have to respect it.

So along with the purpose of the law, Aquinas brings in three more concerns. First, the law and morality are intertwined. The purpose of the law is to implement natural and divine morality. Secondly, he sets up a test for the validity of a given law; is it in comformity with natural and divine law? Third, he discusses the source of the law.

It's my bedtime, so I'll sum up. The relavent issues so far: the purpose of the law, its source, a test for validity, and the role of judges.

I'll skip ahead to 20th century writers next post.