Law and Lawfulness, Obedience and Justice | James Patrick | CWR
Although the post-modern, secular state may write codes, exact penalties, and levy punishments, these legal entities are ultimately responsible before a higher court
When a moral norm that had been honored in Christendom for two millennia came tumbling down, to my knowledge only one person in any official position, a county court clerk in Ashland, Kentucky, protested its enforcement to the extent of risking imprisonment.
When the decision of the Supreme Court was questioned, the answer was, “It’s the law of the land.” This is an answer that would have been given in Rome, Constantinople, Wessex, Georgian England, and in the United States, but it is also an answer that would have been given in the Third Reich and that is now given in China, Russia, Cuba, and various other tin-pot tyrannies, which suggests that to the question at hand “It’s the law” is an answer so ambiguous as to be morally useless.
The right answer to the question why must any law be obeyed is that it must be obeyed because it is just. There have been other attempts to stake political positions on the grounds that positive law, court decisions, or custom, being only enactments of courts or legislatures, were in fact unjust. The abolition movement, the suffragettes, and the anti-war protests all in some way represented or claimed to represent an appeal against positive law to a (usually poorly defined) higher law.
Whether or to what degree those who make such appeals know it or not, they are invoking one of the most ancient principles known to jurisprudence, at least until day before yesterday: the principle that positive law should, but sometimes may not, reflect or represent natural law. Now this is not a principle that can rightly be used to justify every complaint or grievance, or to justify civil disobedience—there is always a practical assumption in favor of authority—but nonetheless the appeal to natural law is the principle that underlay the vast medieval texture of claims to legitimacy or lawfulness. The same appeal to the natural law was implicit in Magna Carta and the charges brought by the Declaration of Independence against George III.
The classic structure of law upon which the lawfulness of positive law rests, while assumed by Cicero, Saint Paul (it underpins Romans 2:14-16), and by Saint Augustine, was stated comprehensively in St. Thomas in the Summa Theologica, Ia-IIae.
Comments