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1 STEVEN D. SMITH, LAW’S QUANDARY 53-62 (2004).
2 Id at 65. Cf., id. at 44 (arguing that one of the questions legal theory must confront iswhether “the law exists” and that answering this and similar questions requires “close reflectiveattention to the situation in order to judge whether the inquiry asks about something that existsindependent of– or, conversely, that is fully contained in or reducible to– the visible workings ofthe institution or practice.”).
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WORK-IN-PROGRESS – PLEASE DO NOT CITE, QUOTE OR CIRCULATEDraft of January 26, 2007– for presentation at the University of Houston Law Center
AFTER REASON AND WILL: THREE OTHER CATEGORIES FOR UNDERSTANDING THE LAW
William S. Brewbaker III
INTRODUCTION
Steven Smith has recently argued that contemporary legal theory cannot account for the
discourse and practices of American lawyers and judges– in particular their tendency to speak
about “the law” rather than merely this or that law, the importance of precedent, the practice of
offering dissenting opinions, and the retroactive effect of much judicial decision making.1 Smith
lumps contemporary legal theories into two main groups. The first consists of “autonomy
theories,” which hold that “observable legal enterprise . . . is sufficient unto itself” and “does not
need anything outside itself– neither ‘the law’ nor any substitute or replacement for ‘the law’ to
make sense.”2 The second group are the “law and” theories, which hold that law is affirmatively
not autonomous; rather it is “indeterminate, artificial, mindlessly arbitrary” and therefore in need
3 Id at 65.
4 Id. at 75-96.
5 Id. at 69 (quoting Michael Moore . . . .)
6 Id at 70-74
7 Id. at 73.
8 Id.
9 Id. at 77.
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of supplementation by something else that can give it meaningful content and direction.3 That
“something else”, depending on who is doing the describing, might be economics, philosophy or
practical reason.4
Smith’s objections to contemporary legal theories can be summarized as follows:
“Autonomy strategy” theories that emphasize what lawyers and judges do tend to neglect what
they say and thus neglect “the essential reason-giving character of law.”5 “Autonomy strategy”
theories that focus on what lawyers say– that portray law as merely a language game– do not
account for the fact that the game is understood by the participants to refer to something outside
their mere words.6 Smith compares these discourse theorists to “the baby who, when his mother
points at a bird or a flower and says ‘Look!,’ stares intently at his mother’s finger.”7 The theorist
“has paid rapt attention to the pointer, but in entirely the wrong way, and has thereby failed to
grasp the pointer’s real nature and purpose.”8
Smith’s objection to the “law and” theories, on the other hand, is that they fail first as an
account of legal decision making– they “do not offer plausible interpretations of the way law
actually works.”9 He also argues that they provide no justification for carrying on the practice of
10 Id. at 74-96.
11 Id. at 47.
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law in the way the theories suggest it is being done– viz., that legal discourse is “code” for the
preferred method of economic, philosophical, etc. discourse or that legal discourse is essentially a
cosmetic enterprise that used to justify conclusions that have been reached on the basis of other
(preferred) grounds.10
The criticisms offered in Smith’s argument seem to me to be well-taken. Much
contemporary legal theory does not account for the actual practices of American lawyers and
judges particularly well. However, the next step in Smith’s argument is to suggest that, because
of contemporary legal theory’s defects, the classical account of law ought to be given a hearing.
While a plea for a hearing is modest and unobjectionable, we are left wondering what the
outcome of the hearing is likely to be, especially given the beating the classical theory has taken
in jurisprudential circles over the past century. The classical theory may give a better account of
some of the particular details of legal practice– the ones to which Smith draws our attention–
than its modern counterparts, but it has problems of its own– problems that Smith leaves for the
most part unaddressed.
Smith does note in passing perhaps the most important objections to the classical theory–
the “dismissive caricature” that “suppose[s] that there is, say, a sort of ghostly Internal Revenue
Code in all of its magnificent detail written in the heavens, and that the Code we find in our more
terrestrial tax volumes is merely a mundane photocopy of the heavenly original.”11 Smith is
certainly right to reject this account of the classical theory as a caricature, and he is also right to
note that Aquinas and other natural law thinkers have held that “the overwhelming bulk of
12 Id at 47.
13 Cf. Hart and Dworkin
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positive law consists of the detailed specification, or determinatio, of what the eternal law gives
only in generalities.” Smith goes on to say that these specifications “are the product of
judgments by human legislators, whose pronouncements have the status of law.” Nevertheless,
according to the classical theory, the pronouncements are only contingently “law”; their legal
status ultimately “depends on their indirect derivation from the eternal law, and they should be
understood and interpreted in accordance with that overarching reality.”12
What is missing in Smith’s argument (and what I hope to supply in this paper) is a
preliminary account of how this “indirect derivation” is supposed to take place. Indeed, it is
precisely because the specific principles of human law are underdetermined by the principles of
the eternal law that the determinationes are necessary. Without an account of this process, the
most natural conclusions are that the determinations are somehow logically entailed by the
principles of eternal law (hence the persistent stereotype of the natural law position) or that once
the main moral principles are exhausted, law just “runs out” and the legislator/judge is left on his
own with respect to the vast majority of human law that consists of determinations that are not
“read off” the primary moral principles.13
Another way of posing the question is to ask how the classical theory conceives of the
relation between the eternal law– the divinely built-in moral order of the world-- and human law.
The usual answer is that the two kinds of law are connected by reason. There are, however, two
major difficulties with this answer.
The first difficulty has to do with the definition of reason. As suggested above, reason
14 But cf Smith’s discussion of practical reason..
15 Cf. Arthur Leff, Unspeakable Ethics, Unnatural Law, 19XX Duke L. J. * (19**).
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might be taken to mean logical entailment. For human law to be related to the eternal law in this
manner, the content of human law would have to be subject to determination on the basis of the
eternal law’s general principles. Smith, Aquinas and the other proponents of the classical theory
are in general agreement that eternal law and human law are not related in this way. Instead,
reason in the classical tradition is best understood as practical reason– as a human capacity for
judgment that relies on logic, prudence, conscience, craft and virtue in some unspecified
combination.14
This modification has the advantage of emphasizing judging’s human dimension and
law’s connection to morality and craft as well as logic and coherence. However, it lacks a means
of explaining what it is that holds this particular exercise of reason, morality and prudence
together as law and, just as importantly, what connects laws in such a way that inclines
participants in the legal system to refer to “the law.” Once there is no single “connector”
between the eternal law and the human law (whether that connector be logic or morality), it
becomes difficult to discern a source of unity in the law. The law’s coherence is lost to some
degree; “the law” becomes merely the heap of judgments and enactments made by those in
political power. If “the law” cannot be held together by reason (however broadly defined), the
only alternative glue is the fact that legal materials are the product of some collection of
sovereign wills.15
The goal of this paper is to offer some additional vocabulary beyond the usual alternatives
of reason and will for conceptualizing unity and diversity in law and the relationship between law
16 Gunton, supra note *, at 7
17 “[T]he transcendentals must be open transcendentals. The error of imposing a prioriphilosophical categories on the being of God must also be avoided. If there are transcendentals,they have their being in the fact that God has created the world in such a way that it bears themarks of its maker. They are not then the ‘forms through which being displays itself’, becausethat might suggest a priority of ‘being’ over God, but notions which can be predicated of allbeing by virtue of the fact that God is creator and the world is creation.” Id. at 136-137. See alsoid. at 141-49.
18 Gunton, supra note *, at 7 (emphasis added).
19 Gunton speaks of modernity’s justified result against this (false) “god”.
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and the world. If the classical conception is to survive the hearing that Smith and others are
demanding for it, some account of law’s unity in the face of its obvious diversity will be
required.
It may not come as a surprise that a paper attempting to defend something like the
classical conception of law would draw upon theological concepts. This paper does so, but in a
decidedly limited way. In 1992, the late British theologian Colin Gunton delivered the Bampton
lectures at Oxford University. Describing his “overall concern” as being “to aid a process of
healing the fragmentation which is so much a feature of our world,,”16 Gunton drew on Christian
theology concerning the Trinity in order to posit additional transcendental categories17 that might
enable[] us to think of our world, in a way made impossible by the traditionalchoice between Heraclitus and Parmenides, as both, and in different respects, oneand many, but also one and many in relation.18
For Gunton, one of the chief characteristics of modernity is its loss of faith in the One,
with the only alternative being the Many, whether the “One” be the God of Christendom,19 the
Law or the other unities that were once thought to hold Western society and culture together.
Gunton’s project involved considering whether the revelation of the Christian God’s triune
20 The leading theorists on both sides of the modern natural law/positivism divide areskilled observers of law as it is practiced. The natural lawyers thus concede the diversity (Many-ness) of laws, and the legal positivists concede law’s practical connection with (conventional)morality. The difficult part of the theorizing concerns how it can be possible that for law to be“connected” to morality in any interesting way and still exhibit the diversity that it does.
21 Levinson, Smith, et al.
22 The broad categories of reason and will obviously did not originate in theEnlightenment. See, e.g., Thomas Aquinas, Summa Theologiae IaIIae 90 (arguing that law isprimarily a matter of reason, not will). However, current conceptions of reason employed in theanalysis of law are far more indebted to the Enlightenment than to the ancients or medievals. Seegenerally Paul Griffiths and Reinhard Hutter, eds., Reason and the Reasons of Faith (2006).
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nature might be suggestive of ways of conceptualizing reality that are more fruitful than the usual
transcendentals. The modern concepts used to account for unity and diversity in the world tend
to posit a single linear relation between some feature of the world’s ordering (e.g., reason, will)
as the sole or best means of accounting for observed relations. Christianity’s trinitarian account
of God is, of course, an example (albeit a mysterious one) of simultaneous unity and diversity. If
Gunton’s model can be usefully applied to legal theory, it might offer alternatives to the polar
choices usually presented by legal theory– whether the classical theory’s claim of the derivation
of all law from the one eternal law or modern legal theory’s claim that law is “merely” a concept
we use to describe the heap of practices we deem related to law.20
I am not the first person to suggest that theological concepts can be useful in illuminating
legal thought, even where those concepts are not endorsed (in their primary theological sense) by
those who make use of them.21 Rather, as an alternative to the dominant Enlightenment
transcendentals22 of reason and will, I will borrow three of Gunton’s “open transcendentals” that
23 See generally Gunton supra note *, at *. Gunton’s transcendentals are notfoundationalist, but are “open”, meaning that . . . .
24 Cites and definitions
25 Gunton, supra note *, at 170-174
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are not nearly as familiar– perichoresis, particularity and substantiality23– and examine whether
they might shed any light on the way we think about law and, in particular, its relationship to the
world. These categories might prove useful in the development of an account of law’s
relationship to the world irrespective of whether the theorist believes that God is triune, or even
exists.
I. PERICHORESIS
The first of the trinitarian transcendentals is perichoresis. Perichoresis is an ancient
theological term sometimes (and not particularly helpfully) translated circumincession or
coinherence. As a theological term, it refers to the otherness-in-relation of the Father, Son and
Holy Spirit.24 In Christian theology, God consists of three separate Persons who nevertheless
consitute one unified God. As a transcendental, perichoresis answers to the modern tendency
toward fragmentation. Modernity tends to set concepts in firm opposition to each other: the
individual vs. society, the past vs. the present, humanity vs. the “natural world”, culture vs.
nature, etc.25 These either/or presuppositions are often useful, but they rule out in advance the
possibility that the world might be analogous in deep respects to what the Christian theologian
26 Explanation of relation of transcendentals to analogia entis, etc. Also idea of opentranscendentals. Devote a section of the paper to introducing these building blocks of Gunton’sargument?
27 Gunton, supra note *, at 166. Gunton qualifies this description as follows: “Thedynamism of mutual constitutiveness derives from the world’s being a dynamic order that issummoned into being and directed towards its perfection by the free creativity of Father, Son andHoly Spirit. That orientation of being is, of course, distorted and delayed by sin and evil, andreturns to its directedness only through the incarnation and the redeeming agency of the Spirit. But evil distorts the dynamic of being, does not take it away. A theology of createdness isnecessarily concerned with ontology: with the shape that things are given by virtue of theirrelation to their creator.” [Consider the perversions of relatedness that tempt us to deny it andhow they show up in law.]
Gunton further qualifies perichoresis by recalling that it is used analogically. Humansare limited in ways God is not. We are bounded by space and time and of passivity in somerespects in the face of others in the created realm. Gunton, supra note *, at 170.
28Add discussion of formalism and legal realists to this section?
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considers the godhead to be?26 Specifically, it is possible that there is not only separation but
also relatedness between the realms we normally identify as opposites. The case for such a
construal of reality would, of course, have to be made, but it might be possible that our
understanding of the world (or some features of it) could be improved by “consider[ing] the
world as an order of things, dynamically related to each other in time and space,” as “perichoretic
in that everything in it contributes to the being of everything else, enabling everything else to be
what it distinctively is.”27
In this section, I will examine three of law’s connections that modern legal theory has
difficulty making sense of– law’s connections to (1) the world, (2) time and (3) human beings.
A. Law’s Connection to the World28
29 This is not to say more ways for law to lose its authority.
30 Interestingly, Aquinas connects law with these other realms, though without the integrallink he suggests between law and justice or injustice. See, e.g., ST IaIIae 9x.x (cite to thefollowing sections of the Treatise on Law:natural law by addition; role of custom; law does notprescribe all the virtues; Isidore’s characteristics of law).
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Perichoresis suggests a way of conceiving of law’s relationship to other aspects of
reality– the realities of political power, of culture, of tradition, of utility, of moral order– without
requiring law’s subordination to any one of them. Law is perichoretic in that it is constituted by
its difference-in-relation to the rest of the world. Law is recognizable as law (and not something
else) only because legislators and judges are not merely moral teachers, philosophers, priests or
engineers, whatever passing resemblances they may bear to them. It is only as law is set in relief
by these other realms of human action that it becomes visible as law. On the other hand, law is
related to logic, morality, aesthetics, craft and other human practices and helps constitute those
practices just as they help constitute law.
One possible implication of seeing law in this light is to posit that there may a variety of
ways in which law may be defective.29 Not only does law lose its way when it ceases to be
connected with logic, morality, religion or political authority, but perhaps also when it loses
connections with other orders of natural and cultural life that we associate with good law–
cultural traditions, popular habits, technology, and utility in various senses.30
Another possible implication of perichoresis for legal understanding is its capacity to give
a richer account of the reasons for law’s observed unity and diversity. Models of law as derived
from reason (including most presentations of the classical theory of law) tend to push law in the
direction of a unity that does not square well with the observed world. Conceptions of law as
31 Consider adding a few paragraphs about jurisdiction, which is the juridical term dealingwith law’s relationship to spatial reality. See also discussion of gnosticism in Gunton, supra note*, at at 94-100. Also, is it not in the nature of law to abstract from the world? To use rules? Dothese concepts help us in the quest to find which such abstractions are appropriate and which arenot?
32 See also Richard H.S. Tur, Time and Law, 22 OX. J. LEG. STUD. 463 (2002); see alsoH.L.A. Hart, The Concept of Law * (2d ed. 199*)(discussing Rex I, Rex II and continuingobedience to law).
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“merely” the product of human will account for legal diversity but have a harder time accounting
for family resemblances in diverse legal systems. A perichoretic account of law has the potential
of providing a vocabulary that accounts for both legal similarity and legal diversity. The laws of
physics and logic resist national or cultural boundaries, and, to a lesser extent, so do core
principles of morality. On the other hand, there are a wide variety of cultural and social
practices, aesthetic visions, geographic and economic conditions and political systems across
political jurisdictions. Law exists in relation to both sets of conditions, and itself constitutes part
of the reality in which those other conditions are formed. Seen in this light, it would be
astonishing if all laws were the same, and also if laws and legal systems bore no resemblances to
each other.31
B. Time32
Perichoresis may also help provide a more helpful account of law’s relationship to time.
This question arises most clearly in law’s treatment of what has come before, especially in the
law’s treatment of prior decisions. An important puzzle for legal theorists has been why past
decisions should carry any weight for persons living in the future. In a way analogous to the false
33 See Brian Tamanaha, Law as a Means to an End 229 (2006).
34 “To deny the salutary character of tradition is to say that we can only be ourselves byfreeing ourselves from others– by suppressing the other– rather than being set free by them. . . .Tradition mediates also fallibility and fallenness, and in order to make grateful use of the work ofmy teachers I must also come to decisions about what I shall take from them, and what reject.” But if I come to believe that I have nothing to receive, I am denying something central to theirhumanity and mine.” Gunton, supra note *, at at 95.
35 Gunton, supra note *, at at 95.
36 Id at 95.
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choice discussed above– i.e., whether law is either (1) autonomous or (2) subordinate to some
other realm of being– modern legal theory usually presents law’s relationship to tradition in stark
terms. The lawyer should either be a traditionalist– affirming the static law– or should be
entirely liberated from tradition– free to do what serves the interests of the moment in the most
satisfactory way.33
One wonders, however, why should lawyers feel compelled to be either for or against the
past. Temporally speaking, law is constituted both by what has come before and by the
possibility of what may come in the future. To reject tradition out of hand is to attempt to free
ourselves from others by suppressing them34– rather than to attempt to appreciate “the uniqueness
and value of that which is given, [as well as] its incorporation into the– equally unique– present
personal action.”35 This creates a dynamic of reception36 of tradition. Note that this is neither
submission to tradition for its own sake nor rejection of tradition out of hand. Rather, it requires
respect for the past (and implicitly for its human authors) but also for the present and the future.
Respect for the present involves the recognition that “this moment” and “our judgment” also
matter, and that actions taken by past generations, like those we take, are tainted by our own
37 Cf Gunton, supra note *, at 89-94
38 Cf. older views of the future as the product of God’s will or of fate.
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fallenness and fallibility, even as we seek to engage our traditions and learn from them.
Reception of tradition is thus explicitly not a wooden traditionalism, which would be a mode of
self-disrespect and naivete. At the same time, it is also not disrespectful of what has come
before, as if it were necessarily true that our judgments were in every respect better than those of
our forbears.
Law’s relationship to the future is equally troubling for the modern mind.37 People in the
modern West are notoriously in a hurry, so it is no surprise that it should be true of lawyers, legal
scholars and other reformers. For modern people, the future is something that we bring about,38
and it cannot arrive soon enough. It follows that if we know what we are bringing about– what
our ultimate goals are– there would be no point in delaying their accomplishment.
In contrast, perichoresis suggests that the law of any given jurisdiction and time is
identifiable only in relation to what it is not– most obviously the law of another space (another
jurisdiction) or of another time. Legal rules are almost always not what they used to be. The
problem for the modern person is why law isn’t already what it is going to be. If we think we
know what we are headed toward, why aren’t we there yet? And, if we don’t know where we are
headed, we are in deep trouble indeed, since who (if not us) will bring about our legal future?
Law’s temporal perichoresis involves an understanding of the law of the present as
different from the law of either the past or the future, but different from such law and at the same
time in a constructive relation to it. As modern literature on social norms and path dependence
39 Cite to path-dependence and social norms literature
40 See infra text accompanying notes * through * (discussing our incapacity to create exnihilo).
41 Consider adding a section on law and culture. See also Stephen Smith, Law’sQuandary 74-85 (discussing law’s autonomy and the “law and . . . “ problem).
42 Cf Yves Simon(?)’s description of the judge.
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suggests,39 we cannot remake our laws from whole cloth.40 The old ways frame the issues for us
in ways that are hard to break from, and social norms likewise constrain legal enactments. As
much as we might wish, we may be unable to proceed directly to our envisioned legal future (for
this would likewise involve creation of new law out of whole cloth), and yet our aspirations for
the future shape the laws we make today.
C. Personhood41
A third set of poles between which modern legal theory vacillates are, on one hand, the
denial that law is (or should be) the product of human choice and the unqualified affirmation that
law consists of anything but human choice. At the extremes, judges are either (1) legislators in
robes or (2) teachers.42 Human agency in adjudication must be either uncritically affirmed or
denied altogether. There seems to be no conceptually plausible middle ground.
Of course, the facts suggest otherwise. At least in the US system, most people think that
judges both apply law and make it, depending on the case. This conclusion is not conceptually
satisfying to the theorist who begins with the presupposition that law is capable of being derived
objectively using generic human reason as it operates on the facts of a case and other appropriate
43 Gunton emphasizes vocation in his discussion of substantiality. Consider whether it isuseful in this discussion.
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considerations, such as formalist methodology, social ethics or economics. When the lie is put to
such an objectivist account of law, the only alternative seems to be a view of the law as
“merely” the product of human will.
A perichoretic understanding of human law provides conceptual space for affirming
judge-made law that is both found and made. Law is the product of human reason and will as it
acts on legal materials that exist separately and independently from the mind of the judge or other
ruler. Human beings create law, but they do not do so ex nihilo. Rather they draw upon legal
reasoning, which is in principle accessible to adults of sound mind, and they must sometimes
make choices that are not apparently dictated by any particular law. Human agency in the
lawmaking process is real; we need not aspire to impersonal law; indeed, utterly impersonal law
is not conceivable because law is made to govern real human beings, who always exist in
relationship to each other, including the relation of ruler to ruled.
II. SUBSTANTIALITY
A. Definition
Substantiality– the second proposed transcendental43– is drawn from a trinitarian
conception of the substance of God. It draws on the idea that God is not abstract, but personal
and particular even as he is a unity. God’s “substance” is not an underlying abstract quality, but
44 Gunton, supra note *, at at 193-194.
45 Cf Michael Moore, Law as a Functional Kind, in Robert George, ed., Natural LawTheory 204-208 (proposing a “functionalist” account of law). Query whether Moore’s emphasison law’s function is “relational” in some sense and might be linked here.
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rather threeness-in-one and radically particular. Whereas perichoresis emphasizes the unity of
distinct and different things, substantiality emphasizes the particularity and distinctiveness of
individuals even when they are part of a whole, as well as the particularity and distinctiveness of
the whole. The godhead is not constituted by being made out of the same thing, but rather by
unity-in-relation. As an open transcendental, substantiality thus suggests that “people and things,
in dependence upon a God understood substantially and not abstractly, are also to be understood
as substantial beings, having their own distinct and particular existence, by virtue of and not in
face of their relationality to the other.”44
If one might use perichoresis to conceptualize the possibility of relationship of one sort of
thing to another, substantiality is helpful in creating space for diversity among things that are part
of the same kind, and yet are different. As noted above, the Anglo-American jurisprudential
tradition has regularly attempted to unite law monistically through a single posited universal.
The difficulty with this approach is twofold. First, the emphasis on universals tends to make
particular (aberrant) laws and decisions disappear, rendering an overly homogeneous picture of
legal decision making and excluding the personal element. Second, the universals that have been
posited so far have not been sustainable. In the face of their collapse, and in the absence of any
other way of conceiving of law, “law” threatened to become nothing more than the word used to
describe an arbitrarily assembled group of cultural artifacts.45
46 Obviously this is a gross generalization. Some natural lawyers deny that Thomas everasserted that unjust laws were not “law.” See, e.g., John Finnis, Natural Law and Natural Rights** (1980). Thomas Aquinas himself added other conditions to his definition of law, includingthe political authority of the maker of the law, its orientation to the common and itspromulgation. Blackstone denied (in theory if not in practice) that laws could be valid if contraryto the teachings of the Bible. See William Blackstone 1 Commentaries on the Laws of England *(178*).
47 But see Hart’s criticism of the command theory and his definition of law as the union ofprimary and secondary rules.
48 Holmes; Posner.
49 But see relational elements in Thomas Aquinas. Use Story or Matthew Hale as NLprototype instead?
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B. The Ontology of Law
One of the preoccupations of general jurisprudence has been the attempt to offer a
definition of law– one that could be applied to identify which human actions qualified as law and
which do not. It is not hard to identify three main answers to this question. The natural lawyers
have asserted that laws are law when they embody reason (or true morality), and not otherwise.46
Legal positivists have asserted that law could be found where it was enforceable, but not
otherwise.47 And some theorists have preferred to think of law as merely a contingent social
practice with no inherent identity of its own.48
One of the interesting things these approaches have in common is their shared
commitment to giving an impersonal account of what holds “laws” together and makes them
“law.” The natural lawyer accepts or rejects the claim of a particular command to be law on the
basis of its reason,49 and the positivist on the basis of its likely enforcement that constrains the
freedom of the subject. Theorists in the latter category, perhaps concluding that no impersonal
50 Note that this latter description could include analytical positivists and more radicalpostmoderns.
51 See, e.g., Bentham. This is a double-edge sword. It may be true that the power-relations view of law reduces law’s mystery and therefore the sense of awe that might otherwiseaccompanies it, and therefore makes laws more mutable. This may be good in the case of badlaws, but it is bad in the case of good laws, and the power relations story contains no resourcesfor distinguishing between the two.
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category was available that could do the work of making sense of the various uses of “law,”
rejected the quest to identify law’s essence.50
There are very good reasons for the quest for an impersonal reference point for law. In
some cases, rule by one human being over another is thought to be an affront to the inherent
equality of human beings. Such rule might (must?) be justified in a pinch, perhaps by recourse to
impersonal procedures such as democratic elections, office terms, and the distinction between
“respect for the office” and “respect for the person.” In the alternative, giving an account of law
as merely a means of social control imposed by the powerful is attractive because it strips
particular laws of any higher authority and theoretically makes them more susceptible to
change.51
A third justification for this giving an impersonal account of law is that it seems to
facilitate a more widely acceptable and perhaps more “neutral” account of law. We may, after
all, not agree about the contours of “reason” but we may be more likely to agree about that than
we are about the content of God’s revelation, if any. Similarly, even if we are not so sure about
the appropriate relationship between law and morality (a value judgment), we may nevertheless
be able to agree on the brute factual connection between coercion and effective law. Whatever
the merits of these approaches, however, the unseen non-neutral presupposition is that law
52 Cf law and literature citations on the definition of law.
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should be accounted for (and thus subordinated to) some impersonal concept or structure. Law is
derived from reason or from will or perhaps something else (utility?) and therefore subsumed
into one or the other of them.
Despite its attractiveness on these points, this approach assumes away the possibility that
law might have its own place in the world that could not be accounted for by recourse to abstract
reason or will. It is conceivable, for example, that law exists whether it is good law or bad law
and also whether or not it is successfully enforced. Indeed, perhaps the making of bad law or the
ineffective making of law is an intractable part of the human condition, present always and
everywhere to one extent or another. Indeed, given the particularity of this world, it could be that
law’s capacity for misuse by human beings is, indeed, part of the “essence” of law, at least this
side of Eden, in that the abuse of law exposes the intentions of rulers for what they are and
perhaps enables gratitude for, and recognition of, laws that do contribute to human flourishing.
A ruler’s inability to enforce a just law migh expose both a society’s own shortcomings as well
as the salutary effects of obedience to good law.
The point of these examples is that law may be better understood in the context of a larger
narrative that is precluded if the only available categories are abstractions and that our habit of
relying on the conventional abstractions may preclude us from offering a richer account of law–
one that permits us to see law precisely in personal rather than impersonal terms?52 As much as
we might like not to be ruled by fellow human beings, and as grateful as we may be for legal
limitations on their authority over us, impersonal rule does not seem to be an item on the menu of
the particular world in which we live. The possibility of a narrative account of the purpose of
53 Consider expanding this section with a review of the inadequacies identified,respectively, by positivists and natural lawyers.
54 See, e.g., John Finnis, The Truth in Legal Positivism, in Robert George, ed., TheAutonomy of Law (1996); [representative selection from a “soft postivist”].
55 Give examples from law and economics treatment of contracts. Cf. Smith, Law’sQuandary 74ff. (discussing “interpretive and apologetic” and “reformist” modes of “law and . . .”analysis).
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law such as the one just alluded to discloses the non-neutrality of the search for an impersonal,
static account of law and its purposes.
Impersonal accounts of law are not only non-neutral, they may also be descriptively
inadequate. The debates between natural lawyers and positivists of various stripes have exposed
the difficulties of trying to reduce law either to morality or to will.53 One of the marks of the
inadequacy of these perspectives is that natural law and positivist theorists are more likely to
acknowledge their commonalities than was previously the case.54 Perhaps even more obviously,
legal theorizing’s repeated attempts to “make sense of the law of x” by reference to some other
principle (the most obvious example is economic efficiency) achieves its goal by suppressing
contradictory themes in the particular legal decisions it purports to investigate. Decisions that do
not follow the desired principle or methodology are suppressed because the universal “theory”
plays so strong a role in the analysis. Actual decisions that appear not to fit into the favored story
line are either ingeniously renarrated, ignored or ridiculed and suppressed.55
It is worth noting at this point the connection between postmodern legal theory and a
focus on legal particularity. As is well-known, postmodern legal theorists may well be more
interested in the local and the particular than their modernist predecessors. Yet they are still
likely to be interested in only a subset of the local and the particular. The new dividing line is
56 Quoted in Gunton, supra note *, at at 69.
57 Add paragraph on legal naturalism?
58 Gunton, supra note *, at 201. Is this helpful? Or is it too question-begging?
59 Note, in relation to this our mysterious practice of referring to “the law” as a whole.
60 Gunton, supra note *, at at 200
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personal rather than theoretical and is exhibited in a posture of “disinterest.” As Ziauddin Sardar
has written, “Whereas modernism tried to come to terms with the ‘other’ by excluding it,
postmodernism simply seeks to render it irrelevant. The underlying fear of it continues
unabated.”56 Moreover, like modernism, postmodernism also tends to diminish the significance
of individual laws and decisions. They are, after all, “only” the product of desire and therefore
not to be taken too seriously.57
How might law be thought together as a category despite its diversity without recourse to
a false– because overly homogenizing-- universal? Gunton’s suggestion is that “the crucial and
concrete realities of our world are the particular things– substances– which are what they are by
virtue of being wholes that are constituted indeed of parts but in such a way that they are more
than simply the sum of their parts.”58 We might expect to find, then, that “the law” is composed
of legal materials and practices but is more than merely the sum of them.59 Gunton uses the
example of a musical composition, which is composed of real tones but is more than merely a
grouping of them. Nevertheless, the individual tones are real, diverse and individually
significant: “a musical tone has its brief time of existence by its relation to player, instrument, air
movement and the rest; it has its own substantial being in space and time.”60
In the same way individual laws, regulations and legal decisions have their own intrinsic
61 The full quotation is as follows and reflects Gunton’s theological commitments:
All particulars are formed by their relationship to God the creator and redeemerand to each other. Their particular being is a being in relation, each distinct andunique and yet each inseparably bound up with other, and ultimately all,particulars. Their reality consists, therefore– and this is the crucial differencefrom other theories of substance– not in the universals they instantiate but in theshape of their relatedness wit God and with other created hypostases. Their formis secondary to, because derivative of, their relation to the Other and to others.”
Gunton, supra note *, at at 207. This may be the point of connection with Michael Moore’streatment of law as a functional kind. See supra note *.
22
significance despite their typically brief periods of existence (a few years to a few decades to
perhaps a few centuries) and their less-than-absolute status as contingent human creations. Their
identity is not determinable in advance according to any single theory of which we are currently
aware; they are contingent and particular and reflect human virtue and vice, ignorance, wisdom
and apathy, love and hate. Nevertheless, taken together they constitute “the law”– which serves
both a regulative and, perhaps as importantly, a constitutive function in human society. Perhaps
one might even say that laws regulate in a way similar to the way in which musical tones sound,
but they are also the tones in the musical composition that is “the law,” which both shapes and is
shaped by the persons in the community it is made to govern.
The theoretical error that substantiality helps us identify is our tendency to look for
something eternal and universal “underneath” law that makes it what it is. Yet one might well
wonder why we ever looked for something eternal and universal within human law, which is
made for finite, particular, limited, contingent beings and is appropriate to their use. Instead,
laws’ reality may consist “in the shape of their relatedness” to the world.61
62 See Smith Law’s Quandary.
63 Or, perhaps, the dominant group(s) of the community.
64 Draw connection to Augustine’s two cities here and their “two loves.” Is this tooHegelian? A zeitgeist?
65 We may order our lives around law either positively or negatively. Our lives may bedefined (to some extent) either in subjection to or rebellion against it.
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C. Legal Universals and Particulars
Recognizing that law has not only a regulative but also a constitutive function may help
explain precedent, ex post facto application and some of the other features that seem puzzling in
light of contemporary understandings of law.62 Even though lawyers and others are inclined to
speak of “the law” rather than of “the laws,” they need not necessarily be referring to a “brooding
omnipresence” containing the answers to all our legal questions. As suggested above, “the law”
may be greater than the sum of the laws; it may refer to the aspect of our social, cultural
inheritance (and our current reconstruction of it) that embodies the restrictions and norms of our
communities,63 in all their beauty and ugliness.64
Because judicial decisions are made in a community, it is no surprise that they require
communitarian justifications– the giving of public reasons that invoke the authority of the
community’s traditions as well as that of its current political institutions and its particular
hierarchy of moral values. If “the law” contributes to our making sense of and ordering our
lives,65 it must aspire to some sort of coherence and inner logic. Otherwise it would be
experienced as random and nonsensical, which sometimes, indeed it is.
66 Gunton, supra note *, at at *.
67 Cf Aristotle’s contribution to the understanding of the virtues as means between twoundesirable extremes rather than as the opposite of a particular vice.
68 Cite to Nichomachean Ethics.
69 From a theological perspective, this is a good thing because it is part of the createdorder that God has declared very good indeed. On the other hand, it also has a tragic elementbecause of judges’ fallenness and fallibility.
70 What about the fact that there are no norms that are shared completely in thecommunity. Refer to the dominant group in the community?
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Here we may invoke Gunton’s helpful distinction between “creating” and “making.”66
Traditionally, the debate about the judicial role has been cast as whether judges do or should
“find law” or “make law.” We may, however, extend the spectrum of description to include
“creating” law.67 Much as Aristotle recognized that courage was not the opposite of cowardice,
but a golden mean between cowardice on one hand and rashness on the other,68 one might
describe the appropriate judicial role as inevitably making, but neither merely finding law nor
“creating” it ex nihilo.
Judging is a human activity and is therefore unavoidably personal;69 it would thus be a
mistake to aspire to judge “anonymously” or “impersonally,” and given that judges are human
persons, it is impossible to do in any event. On the other hand, there would appear to be nothing
wrong (and, indeed, a great deal right) in aspiring to judge in a restrained way. The judge passes
the community’s legal judgment on the actions at issue in a case, not his or her personal
judgment. The decision is thus made on the basis of the community’s norms70 (as embodied in
71 These may vary from system and to system and may or may not include religion orcommunity morality. But see Oliver O’Donovan, The Desire of the Nations (arguing thatgovernment is not to constitute a society’s values but merely to pass judgment). Connect thispassage with O’Donovan’s account of “government as judgment.”
72 Note analogy to modern architecture and “urban renewal.”
73 But cf the English courts’ former treatment of legislation in derogation of the commonlaw.
74 Although Blackstone overdraws the distinction between the judicial and legislativeroles in his firm distinction between judicial declaration and legislative law-making, he holds thatlegislatures are constrained by natural rights. See William S. Brewbaker III, Found Law, MadeLaw and Creation: Reconsidering Blackstone’s Declaratory Theory, ___ J. L. & RELIG. *, *(2006-2007)(forthcoming).
75 “Nation-building” may provide an apt non-legal analogy. But what about legal successstories? Brown v. Board?
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the sources to which the judge may recur in explaining the decision).71
One might expect that legislation would be a different matter. Particularly in modern
states, legislation is often intended to “wipe the slate clean” of prior legal regimes in the interest
of reform.72 Nevertheless, legislative and judicial lawmaking differ by degree rather than by
kind. Judges are typically constrained by legislative acts,73 whereas legislators are not. But both
judges and legislatures are constrained by constitutional law, social practices, cultural values,
morality and pragmatic and technical considerations.74 When legislators ignore these constraints,
they venture into the territory of “creation” and the results are predictably problematic.75
In one sense, it is questionable whether legislators are capable of creating law in the full
sense. Natural law theorists argue, for example, that human beings inevitably act for a reason,
and the sets of reasons that motivate legislators to take action seem limited, for example, to
actions taken to benefit the legislator and those taken to benefit the community or some favored
76 See H.L.A. HART, THE CONCEPT OF LAW * - * (2d ed. 1994).
77 Gunton, supra note *, at at 228.
78 In Gunton’s theological presentation of the transcendental, the most important other isGod, and cultural activities like lawmaking are expressions of gratitude for God’s gifts: “Thesacrifice of praise which is the due human response to both creation and redemption takes theform of that culture which enables both personal and non-personal worlds to realize their truebeing.” Gunton, supra note *, at at 231. Legislation and adjudication regard primarily thepersonal world; enabling human persons to realize their true being is fully consonant withexpressing gratitude to God by obeying the “second great commandment,” which is “Love yourneighbor as yourself.”
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group within it. Moreover, as Hart noted in this famous discussion of the “minimum content of
natural law,”76 the means employed to achieve the benefit are inherently limited. Human will in
“creating” law is confined by the limitations inherent in being human. These conditions cannot
be transcended.
III. RELATIONALITY
The final transcendental, relationality, may be summarized as a “social metaphysic of gift
and reception”77 that frames human action, including legislation and adjudication. Legislation
and adjudication are forms of human action; relationality underscores the inherently personal and
social nature of such action, and the significance of the other– those who are not doing the
legislating and the judging in such action.78 This last transcendental challenges modernity in two
respects– first, in its strongly personal emphasis, which (as noted) stands in stark contrast to
modernity’s focus on impersonal forces and mechanisms and, second, in its implicit assessment
79 Gunton, supra note *, at at 226-227.
80 Gunton, supra note *, at at 219.
81 Surprisingly, “the created world is not truly itself without us, its most problematicinhabitants. Without us, there is suffering and death but not pollution and moral evil; without usthere is no science and art, none of the essentially moral action which enables the world to beitself.” Gunton, supra note *, at at 216-17.
82 See ANTONIN SCALIA, A MATTER OF INTERPRETATION * (19xx)(celebrating law’sformalism).
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of the human vocation, which is not self-fulfillment but rather service.79 Also implicit in the
concept of relationality is a rejection of the modern tendency to see human will as “either so
distinct from the rest of the world or so continuous with it that the only conceivable orientations
are the alternatives of dominance or resignation.”80 Instead, the concept presupposes an inherent
relationship between the world and human will in which human ordering is capable of assisting
those persons and things that are being ordered to flourish.81 Again, it is the well-being of the
other that determines the agent’s success or failure in the action under consideration.
As an additional transcendental, relationality helps explain both the attractions of, and the
difficulties encountered by, attempts to account for law exclusively in terms of formalist reason
or of will. On one hand, reasoned formalism in law can be a source of human blessing, enabling
citizens to know in advance what the rules are, to predict the consequences of violating them, to
order their own affairs and, where such laws are enforced, to know the extent to which they will
be protected from encroachments by others.82 Relationality also helps explain why “the life of
the law has not been logic but experience.” The ultimate goal of law is (or should be) human
flourishing, not the construction of a logically elegant system or impersonal consistency. Human
laws exist not for their own sake but for the sake of the community. All things being equal, laws
83 As Aquinas notes, all things are not always equal. There are good reasons not tochange laws “whenever something better comes along.” See ST IaIIae 9X.X.
84 See supra text accompanying notes * through *.
85 E.g., The Fugitive slave cases; Dred Scott; Roe; Jesus’ statement “woe to you lawyers”because “your fathers killed the prophets” and you “build their tombs.”
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that work against these goals should be changed.83
These ideas also suggest that laws may be better evaluated from the bottom-up than from
the top-down. As suggested earlier,84 laws tend to reflect the culture, morality and aspirations of
the community to which they apply. What about laws that reflect these norms but work against
the well-being of those to which they are applied? Aiming at consistent reasoning may preserve
the coherence of the community’s meta-narrative, at the cost of human suffering. On the other
hand, a focus on human flourishing may prompt needed cultural corrections when prescribed
rules do not achieve desirable human consequences.85
Interestingly, there is a convergence between relationality and the definition of reason
employed in traditional natural law theory. In Aristotelian/Thomistic accounts of natural law,
reason does not consist merely of mental operations that assimilate data and draw conclusions.
Rather, it is separable into two broad categories, speculative reason and practical reason, with the
latter being associated with reasoning about what to do and the former associated with
understanding things for their own sake. (Legal decision making is in the former category.)
Perhaps more significantly, practical reason is associated not merely with pursuing an end, but
with acting for the sake of a good end. There is thus a connection between the activity of
86 But note that because traditional natural law theory is virtue-based, it is not as explicitlyrelational as Gunton’s proposal.
87 But see Hart’s emphasis on habitual obedience.
88 Gunton, supra note *, at 200-202
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reasoning and moral orientation that is usually neglected in modern thought.86
There are likewise strengths and weaknesses of will-oriented conceptions of human law
that are set in relief by employing relationality as a transcendental. Will-oriented theories
emphasize that positive law is a human construct, the product of personal decisions. They also
underscore such laws’ reality, whether or not the laws are well-conceived and fairly
administered. On the other hand, while they emphasize the personal aspect of human lawmaking
and judging, will theories tend to focus more on the ability of the rulers to make their decisions
effective than on those decisions’ effect on the ruled.87
Finally, relationality attempts to stake out a third way between individualism, which
unduly de-emphasizes the necessity of the other in the creation of human identity, and
communitarianism, which threatens to deprive the individual of importance in its quest to
recognize group interests.88
CONCLUSION
A central theme of the trinitarian transcendentals presented in this paper has been that
law, because it is enacted and used by human beings, cannot be understood apart from the
personal and relational. Impersonal accounts of law, focused as they are on absolute conceptions
89 How does the absence of Gunton’s Christocentric theological framework affect theapplication of the ideas in this paper?
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of reason and will cannot easily give an account of legal practices that are finite, temporary, local
and contingent without effectively declaring the idea of law to be merely an arbitrary aggregation
of linguistic usages.
Ironically, however, abstraction appears to be a necessary part of rules and thus of law.
Rules are effective in part because they abstract away from all but the most important contextual
contingencies. They are impersonal in the sense that they apply to everyone in the jurisdiction
irrespective of personal identity. Judging is also ideally impersonal in that the judge is not just
speaking for herself when she passes judgment.
Perhaps, however, a focus on personhood and relationality can answer these objections,
too. It may be that laws are impersonal in their effects, but not in their intentions. Law’s
apparently impersonal characteristics may simply be misread in cultures like ours that tend so
strongly to read our experience through the lenses of logic, mechanism and force. Perhaps even
here law’s abstractions can (but do not necessarily) further personal flourishing. Law’s general
application may be, at its best, an affirmation of individual respect and human equality by the
group toward the individual. Law’s rules may be a necessary warning in their generality and an
expression, for better or worse, of what a particular people at a particular time hold dear.89