This is an outline of The Nature of the Law by Eric Voegelin, written in 1957 and published in The Collected Works of Eric Voegelin, volume 27, The Nature of the Law and Related Writings, Louisiana State University Press, 1991.
Your comments and corrections are always welcome: please e-mail Bill McClain.
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1. EssenceWe speak of "the law" in the singular as if there were only one law, although the law appears in a plurality of legal orders in a plurality of societies, each different in detail.
Is "the law" then an essential aggregate of rules, a species individuated in a plurality of legal orders? If so, the essence of the law would be the rules which all legal orders have in common.
But this is not so. In every concrete legal order all laws are "valid" and there is no distinction between essential and inessential rules.
We could assume that "the law" is all the rules of all legal orders, forming one singular specimen of a vast species. But this would prevent us from exploring those typical features which we know, from everyday experience, that the various legal orders have in common.
It is pointless to search for the essence of the law in a recurrent aggregate of legal rules, since we know from our experience that the validity of every single rule somehow partakes of the essence of the law.
See the character of Hippias in Plato's Protagoras for an example of the search for the essence of law by comparison of legal orders.
2. Essence and ExistenceWhat about "validity"? We speak of legal rules duly enacted, becoming newly valid and perhaps invalidating previous rules. The legal order has a time dimension.
It is a common-sense observation that a legal order may persist even when subject to continuous change. But analysis denies this. Since all rules in a legal order are essential, any change means a new legal order is created. It would seem that a what we have called a "legal order" is actually a sequence of aggregates of legal rules.
Might creation of the rules by a constant procedure (the US Constitution, for example) link the succession of aggregates into a single legal order? No, because this does not explain the lost validity of superceded rules, or the future validity of possible rules yet to be.
3. The Zenonic ProblemNote that "the law" does not become valid for a concrete case until a court has so ruled. Once this occurs, the aggregate of rules incorporating the decision already belongs to the past. "The law" seems to have no existence at all, belonging either to a past which is no longer valid or to a future which is not yet valid.
This is an example of one of Zeno's paradoxes. A succession of static points in time, no matter how nearly spaced, will never become the continuum of a thing in motion. The legal order as an aggregate of valid rules is the static point in the time dimension. The legal order as a series of aggregates linked by a constitutional procedure is the continuum imagined as a series of static points on the line. But the points will never run together into a continuum.
Our premises must be defective. Either:
We will always encounter Zeno's paradox if we presume that legal order is nothing but an aggregate of valid rules. This is because "meanings", such as the meanings of legal norms, have no time dimension. They cannot break through to the continuum of existence in time.
- The legal order is not an aggregate of valid rules, or...
- ..."rules" and "validity" contain meanings which have escaped us, or...
- ...there are contexts of everyday experience not yet considered.
Can the legal order have its existence in the constitutional procedure? No, because the constitutional procedure itself must be described in terms of valid rules.
We must consider some contextual phenomena hinted at previously.
1. The Hierarchy of Valid Rules. The Lawmaking Process. The Order of Society at Large.The rules of a concrete legal order are created with a purpose. "Purpose" not (at this point) in the sense of "ideals", but in the manner in which legal rules are fitted into the social context and partake of existence.
Legal rules interweave with social reality in an intricate pattern. Not only through the hierarchy of rules, but through the acts of their specification. For example:
These acts must have legal character to produce valid rules, so they also partake of the "nature of the law".
- legislative action
- jury deliberation
- a judge's reasoning
We have a lawmaking process in which rules and rule-making acts alternate, flowing into a vast social reality. This reality also partakes of the law, as for example, in contracts. Man's whole existence in society is pervaded with "law".
2. The Law as the Substance of Order. The Lawmaking Process as the Instrument for Securing the Substance."The law" is the substance of order in all realms of being, as denoted by:
These all signify the ordering substance pervading the hierarchy of being from God through the world and society to every single man.
- the Egyptian maat
- the Chinese tao
- the Greek nomos
- the Latin lex[ius?]
Behind the equivocation of "law" (as both the valid rules made by government and as that which pervades the existence of man in society) lies the experience of a substance that pervades the order of being, of which the order of society is a part.
The lawmaking process considered in isolation would not have a normative character, but would only attach certain consequences to certain actions. The question of purposes would be beyond the philosophy of law.
We prefer to assume the lawmaking process to be an instrument for securing the substance of order, because the alternative makes nonsense of the preanalytic knowledge of law.
Legal orders are not usually described in normative language, but the purpose of securing social order is presupposed and the text of the law must be read in that light.
3. Theoretical Constructions of the RelationsPrinciple philosophies of law motivated by the relations noted above:
- Plato and Aristotle; the order of the Hellenic polis. Inquiry into true order is the philosopher's task. Will the lawmaking process result in rules that secure the true order?
- The genesis of the modern national state. All law emanates from the prince or his agents. Still: the prince must secure a substance of order not of his own making. Hobbes weakens the link with the autonomous substance of order, reducing the later to the postulate of peace. Whether the resulting order manifests the Judeo-Christian substance is at the discretion of the king, a matter of historical accident.
- Increasing secularism and the disintegration of philosophy. Lawmaking achieves complete autonomy, divorced from the question of substantive order. Theorists tend to split the lawmaking process itself into two independent components:
- the valid rules (normative jurisprudence)
- the acts of their creation (sociological jurisprudence)
- (a) Normative jurisprudence is represented by Kelsen's "Pure Theory of Law". Norms derive from the constitution, which is the origin of the legal order. Questions of true and untrue, or just and unjust order do not belong in the science of law, or in any other science.
- (b) There are a large variety of attempts at a "sociology" of law. The authors variously emphasize:
They provide a rich vocabulary of:
- constitutional and legislative processes
- court decisions
- behavior of the public and its subgroups
These theories and the terms they use all have a preanalytic character. The nature of the law as the substantive order of society will not become the object of analysis if the inquiry stops at the observation of phenomena such as:
- domestic peace, welfare, and social security
- freedom and property
- class and group interests
- protection of the weak
- adjustment, deterrence, prevention and rehabilitation
- lawful and unlawful, social and unsocial behavior
- the behavior of judges
- the demands of pressure groups
- the ideologies of political movements
- the psychology of conformity or delinquency
- the need of legislative and judicial reform
The term "law" has equivocal meaning, referring to both the whole complex of order and to some part of it, such as:
- the aggregate of valid rules in the social context of the process in which it is created
- the lawmaking process in the context of the society that secures its substantive order by means of the this process
1. Structure, Continuity, and Identity of the ComplexWe must distinguish between:
We discuss two essential tensions in the structure of the whole complex:
- "The law" in the sense of legal rules and the lawmaking process (the "legal" side)
- "The law" in the sense of the substantive order of society (the "social" side)
Consider the first of the tensions, particularly the weighting of the relation toward the social side. The question of valid legal order must be reexamined. "The law" of a specific legal order contains meaning that stems from the social side.
- between the substantive order of society and the lawmaking process
- between the substantive order of society as it exists empirically and a true substantive order of which the empirical order falls short [IV-2. The Ought in the Ontological Sense, V-2. The Empirical and the Philosophical Lawmaking Processes]
We could try to derive validity by following procedural rules through the hierarchy, up to the constitution. But this is a border; there is no constitution above the constitution. Legal validity is founded on something extralegal.
Possible lines of analysis:
A constitution will last if:
- Kelsen's system, which is analytically senseless.
- Bodin's differentiation of norms into divine law, natural law, and social power.
If the power structure is not stable, the constitution will adapt by:
- its makers have correctly diagnosed the actual power articulation of the society
- its makers are good craftsmen
- the power structure is a stable one
What about the identity of a legal order in the face of these adaptations? Are some laws, and the state itself, the same or different before and after a revolution?
2. Aristotle's Struggle with the Problem of IdentityAristotle tried to call the constitution the form of the polis, and the citizens its substance, but this amounts to Zeno's paradox again, from another direction. The flow of human beings in time will never congeal into a society persisting in time.
We find paradoxes in both directions, in trying to locate the identity of a legal order in either society or the constitution. Aristotle's error was the uncritical transfer of the categories of form and substance to inappropriate realms. (The same error occurs when speaking of the soul as the form of a man).
3. The Border Questions of Constitutional LawWe fall back on preanalytical phenomena; cases where revolutions in power structure occur without a break in legal continuity:
The case of the US Constitution "furnishes perhaps the finest object-lesson for the growth of authoritative power in a new society, accompanied as it was by superb craftsmanship..." Its creation also shows how questions of legality are subordinated to the social process.
- absolute monarchs imposing representative constitutional monarchies
- National Socialist dependence on the Weimar constitution
- the genesis of the US Constitution
The legal order as aggregate of valid rules is part of a larger phenomenon which includes efforts to establish order. The power structure enters the validity of the rules themselves.
Breaks in the continuum of validity are events within the continuum of society.
Summary so far. We have been unable to analyze "law" (as an aggregate of rules) to discover its nature, neither as to its essence or existence. The obstacle is "validity". Analysis of validity causes the legal order to vanish into Zeno's paradox.
But this is contrary to common experience. The solution begins with the recognition that the legal order, though having no ontological status of its own, is part of the process by which a society comes into existence and maintains its order.
This larger process is the object of inquiry, particularly concerning how the legal order participates in the existence of ordered society.
First: how is it possible that rules have a function in the existence and ordering of society?
1. The Rule and the Lastingness of OrderWe take "rules" in the simple sense of recurring situations and events. Society contains such structures as are regulated by rules, as in the large complexes of the criminal and civil law. Rules are possible because the order of society has a structure that lasts in time.
This lastingness pervades the order of society into the concrete existence of every member, making it necessary to have more than mere general rules which omit the "inessential". This is the problem of validity again. The legal order cannot be divided into essential and nonessential rules.
The lasting structure of order (the structure of human existence in society) is the subject matter of Aristotle's episteme politike. The principle components of the lasting structure:
Society and its order is the realm of being where essentials can be distinguished from non-essentials.
- man's organization of his physiological existence in family and household
- his utilitarian existence through division of labor and commerce
- his intellectual and spiritual existence in political society
Aristotle's problem was that his studies of the nature and form of the polis were not connected properly. The order of the polis is not inherent in the polis in the way other forms are inherent in individuals, because human action is required to make it inherent. Also, the forces which provide this action may change without altering the identity of their society. The lawmaking process and the social forces that operate it are not identical with the nature of order in society.
How far must we range to find the ultimate unit of which power constellations of the moment are only subdivisions? This is a vast field of inquiry. In outline:
- For Plato and Aristotle, the sequence of governmental forms (kingship, aristocracy, revolt, etc) was the minimum unit of observation.
- In theories like Toynbee's, the unit is the larger civilizational society.
- Beyond this loom the problems of an order of all mankind.
2. The Ought in the Ontological SenseNext: How are rules used for the purpose of social order?
Legal rules are not propositions, but "norms". We must isolate the normative component in the meaning of legal rules.
Rules must be used because societies depend upon the actions of members whose nature includes the freedom of both good and bad actions.
The order of society must be discovered and adapted to changing circumstances. Hence the tension in social order between:
The source of the tension is the experience of participating in an order of being which includes the self, God, the world, and society. Man also experiences anxiety about the fall from this order of being, of annihilation, and consequently experiences an obligation to attune the order of his existence to the order of being. Finally, he experiences the possible fall and attunement as dependent on his action, as a problem for his freedom and responsibility.
- standard and achievement
- achievement and the potentiality of falling short of it
- a groping for knowledge of order and the crystallization of that knowledge in articulate rules
- the order as projected and the order as realized
- what ought to be and what is
These experiences are the "tension" of the social order and constitute the Ought in the ontological sense.
3. The Rule as NormThe Ought is the experienced tension between the order of being and the conduct of man. Rules are projects of order.
Components of the normativity of rules:
- When describing a type of action which ought or ought not to be done, a rule is meant as a true proposition concerning the Ought.
- In the context of the legal order, the rule is an appeal to society's members to integrate the truth about the Ought into their lives.
- The rule's appeal is public. It has a claim to be heard.
4. The Public Character of the Legal NormThis third component causes a number of problems in theory and practice.
In the case of the law, who is the proponent of the rule? Even when we doubt the truth of the proposition, even if we have never heard of the law, we still recognize it as valid as long as it has been properly enacted.
The "game" of law is taken seriously in every society, and every society has means of promulgating its laws. The lawyer's role is to fill the gap between official promulgation and the knowledge of the law by lay members of society.
The social order is the business of every member of society, not just of the lawmakers. Other types of effort bound up with the social order include:
There is no clear line separating personal and social order. The whole society is alive with projects of order in various degrees of articulation and rationality. We examine these phenomena to help distinguish more clearly the specific normativity of the projects called "the law".
- The organization of a man's personal life with regard to his work
- the maintenance of himself and his family
- the calculability of the future for which he must lay plans
- the prospects of his success in business
- the nature of business that he can undertake in view of the stability or instability of order
- the possibilities of social rise
- the prospects for the future of his children
1. The Two Types of Projects
(1) Some phenomena arranged in the order of their distance from the lawmaking process:
- Projects intended to be implemented in a concrete society.
- Projects intended to set standards of true order, but not be actually realized.
(2) It is nonsense to view models, such as those by Plato and Aristotle, as Utopias or ideal constitutions. Both authors were more realistic than the political leaders of their time. They were inquiring into the truth about order in society.
- preparations for the enactment of a statute
- debate on desirable legislation, including the drafting of model codes
- debate on social reforms requiring a huge body of new legislation; the agenda of political parties
- more or less unsuccessful voicings of opinions about desirable reforms of order, ranging from the reasonable to the Utopian and pathological
"The true order of society is living reality in the well-ordered soul of the philosopher, brought to sharp consciousness by the philosopher's refusal to succumb to the disorder of his environment."
2. The Empirical and the Philosophical Lawmaking ProcessesThe philosopher becomes a lawmaker of the true order, rivaling the lawmaker of the empirical society. The second type of law is measured by the standards of the first.
But the philosopher is not outside the sphere of lawmaking. Although not a revolutionary, he withdraws from the lawmaking process and refuses office, so as not to become complicit in the unjust actions of the government. His models are the standards of normativity, but the responsibility of lawmaking devolves on him only when the empirical lawmakers become derelict.
The philosopher's project is also linked to the empirical order by transitional projects, as in the Laws.
Not just any component of the legal order is law beyond further questioning, but is normative only to the extent that it participates in true order. If this participation sinks to too low a level, dissatisfaction may rise to revolutionary levels, or the society may dissolve and be subject to conquest.
The previous survey can help with the question of the peculiar normativity of legal rules:
- It is difficult to ascertain the person who issues them
- their truth frequently is questionable
- their appeal may not be very successful
- the communication of them leaves much to be desired.
1. Society as a Self-Organizing EntityAt the ontological core of normativity are two persons who issue rules:
Beyond this there is no one (not even: parents, friends, teachers, elders, priests, philosophers, government officials) who can issue rules with normative authority. There is divine and natural law, but no autonomous social or historical law.
- reflecting man, using his reason and conscience
[Is there text missing here? Page 56 references a previous rejection of Austin's construction of law as the command of the sovereign, and the index shows Austin on page 46, but I don't see it].
Making and issuing rules is a process within society itself. Human existence is ontologically social, although this is often obscured by the emphasis on tensions and divisions within the social field. Life attuned with the true order is possible only within a social order, therefore a society's reason for being is to allow its members to order their lives in truth. [Does that necessarily follow?]
Theoretical constructions of the above from Aristotle, the American creed, Rousseau and Hobbes. Society exists inasmuch as it develops a self-ordering process.
Next: How can it be that a legal rule has neither a personal addresser nor a personal addressee?
2. The Representation of SocietyThe lawmaking process is the self-organization of society for its ordered existence through representatives. This is a vast field of study. Representation is an essential factor in the lawmaking process. It is through his authority as a representative, not as a person, that a man can make legal rules.
3. The Calculus of ErrorThe representative may issue rules which depart widely from the truth of order. These phenomena of abuse are constant in every social order. Plato and Aristotle on the good and bad forms of government, depending on whether the representatives pursue the common good or private interest.
This is the motive for institutional safeguards such as the separation of powers, etc. None are foolproof, relying on imperfect human beings for their implementation. The devices of universal suffrage and frequent elections have been particularly disappointing. The mass of common men is not the repository of the will to substantive order.
The tension between true and empirical order can never be abolished. The discrepancy can be minimized to the extent that the people are not moved to revolt. The undisturbed order of society is a good in its own right and this also enters into the normativity of legal rules. A considerable margin of error regarding the truth of order must be allowed, and imperfect order and a degree of injustice are preferable to disorder and violence.
4. The Use of ForceA legal order must be imposed by force because:
- The previously mentioned discrepancy between true and empirical order means that some citizens will contend that a rule conflicts with the Ought. If they were allowed to disobey, society could not be maintained.
- Although questions of truth rarely have unequivocal answers, specific policies must be selected and enforced. Legal decisions all have an element of arbitrariness.
- Human nature requires it. (Aristotle's primary argument). Man's nature is to be a "person" governed by reason and conscience, but also not to be a person to the extent that he is governed by passions. There are men who never grow to maturity who must be directed by social pressures, energetic reminders, and ultimately by the threat of force.
The nature of man is not all "personal". His passions are "impersonal" and even obstruct the formation and action of the personal order in the soul.
Force is not required to impose order on the person, but on the impersonal nature of man, particularly when that nature is socially disruptive.
Perhaps force is not primarily used to protect society, but to restore or construct the personal order of the offender. The Ought has its seat in the person of every single man.
The issue of the use of force shows us that the impersonality of the legal order has its source in impersonality of human nature.
1. The Components of ValidityThe legal order has no validity until social context is introduced. Components of this validity:
- Legal rules, to begin with, are propositions concerning the order of human existence in society.
- More than that, they are integrated into society and the conduct of society's members is the content of the rules.
- The legal rule intends the truth of the Ought which is founded in human nature.
- The validity of the legal rule also depends upon the impersonal existence of man in society, which imply the representative, the calculus of error, and the sanction by force.
2. The Legal Order and the Historically Concrete SocietyFurther results of the analysis:
- The content of the legal order cannot be deduced from the nature of man. Each society includes in its nature the historical unfolding of true order. There are further questions of the optimal order under given historical conditions and the legal technique for achieving the best possible results.
- The is no history of law in the strict sense, but only of the institutions of the law indirectly.
- The most important event in history (as regarding inquiry into the nature of the law) is the differentiation of reason and revelation (the normative sources of authority) from the compact experiences and symbols of the myth. Under this aspect, there are three principle types of law:
Tentatively, we may say that the balance of Reason, Revelation and Power is the condition of true order in the West. This balance has recently been challenged by Gnostic creed movements such as Communism and National Socialism, which sought to fuse the normative authorities into an authority of Power. This would have been a fourth type of law.
- the law of societies ordered by the cosmological myth
- the law of societies that have experienced Revelation (Israel) and Reason (Greece)
- the law of Western civilization in which both reason and revelation are authoritative sources of order.