by “An unjust law is not law.” So declares a classic natural law principle. People have debated whether the principle is correct, what it entails, when it applies. The most obvious application, probably, is to laws that are unjust in their substance– laws, for example, that authorize the taking of innocent life. But might the principle also apply to laws that come into being through an unjust process?
Imagine, for example– hypothetically, of course– that in an aspirationally democratic nation committed to lawmaking in accordance with a process historically governed by written procedures and norms of decency, some citizens and politicians favor, and others oppose, a proposed law. This law is extraordinarly important because it would involve the raising and spending of billions and trillions of dollars and would have a massive impact on the nation as a whole and on the lives of virtually every citizen. Some citizens argue that the proposed law is consistent with justice and good policy; others emphatically disagree. The nation’s recently elected administration favors the law, but it becomes apparent in a variety of ways that a discernible majority of citizens takes the opposite view.
So imagine– hypothetically, of course– that in these circumstances the administration resorts to a variety of questionable tactics in order to enact the proposal. Deals are struck, such that some states (whose representatives’ votes are needed to pass the measure) are treated much more favorably than others. Special benefits extraneous to the proposal are offered to some legislators, their districts, or their family members, in order to secure these legislators’ votes. Information and predictions regarding the proposal are manipulated and distorted such that citizens eventually find it impossible to place any trust in the statements made by the administration relative to the issue. Even the formal procedures normally followed for voting on bills are departed from under the cover of obfuscating language and legal fictions. None of these measures is wholly without precedent, let us suppose, but taken in the aggregate they add up to a brazen corruption of the legislative process of historic proportions.
Suppose that as a result of this process, the proposed legislation is enacted. Would responsible citizens be right to regard the legislation as “unjust law” within the meaning of the natural law principle?
We can think of this as an abstract jurisprudential question. Or we might think of it in somewhat more down-to-earth terms. Why should any citizen regard a law with which he disagrees, and that imposes unwanted burdens on him, as authoritative? To use H. L. A. Hart’s famous analogy, why should a citizen regard the official who enforces the law against him as fundamentally different than the mugger who “obliges” him to hand over his money but does not thereby impose any actual “obligation” (as Hart put it)? It is a hard question; I am not sure that anyone has answered it entirely satisfactorily. But part of the answer surely lies in the fact that “law” is assumed to be the product of a process that has some integrity. So if that assumption comes to be quite manifestly false, does the product of the flagrantly corrupted process impose any “obligation”? Is that product . . . “law”?
Steven,
Though I recognize this debate is too large to argue through blog comments. I think we should consider the possibility that this jurisprudential question has no “down-to-earth” implications because there is no practical difference (i.e. level of adherence to the law) between a citizen who regards “the official who enforces the law against him as “mugger who ‘obliges’ him to hand over his money” and a citizen who regards the official as exercising legitimate authority “thereby impos[ing an] actual ‘obligation.’”
We might assume that citizens bound by legitimate authority act differently than those bound by force, but this assumption, which has been argued quite extensively in the philosophical literature, deserves more empirical attention before it should be relied upon.
I can understand the value of having the debate about whether invoking the Slaughter Rule would create an unjust law. If it did, in fact, create an unjust law we might be morally justified in disregarding it. This is important, and I surely don’t mean to disparage this part of the debate. However, if it is empirically true that whether we are morally justified in disregarding it has little or no impact on whether we as a society actually disregard it, then perhaps the debate should be content to remain in the jurisprudential clouds.
(Also, I would like to thank all the contributors to this blog. As a law student who enjoys engaging in discussions at the intersection of law and religion, I was thrilled to see this blog materialize. )
Steven,
As in many questions of natural law, my thoughts turn to St. Thomas Aquinas, and his “Treatise on Law” in the Summa. As I am sure you are aware, Aquinas stated essentially what you quote in his treatise, namely that “As Augustine says (De Lib. Arb. i, 5) ‘that which is not just seems to be no law at all’: wherefore the force of a law depends on the extent of its justice.” IaIIae.95.2
It seems like, even if he did not title them “procedural concerns,” Aquinas considered process as part and parcel of the question of justice in law. For instance, in whether a law binds a man in conscience (IaIIae.96.4), he argues:
“On the other hand laws may be unjust in two ways: first, by being contrary to human good….in respect of the author, as when a man makes a law that goes beyond the power committed to him….because, as Augustine says (De Lib. Arb. i, 5), ‘a law that is not just, seems to be no law at all.’”
It seems to me that going beyond procedural norms in order to pass even a good law, a legislator (or legislature) may be exceeding the power granted to it, and therefore, enacting an unjust law. It seems to me that this is especially important considering Aquinas’s statement that “For if…[the people]…are free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance, that does the authority of the sovereign, who has not the power to frame laws, except as representing the people. Wherefore although each individual cannot make laws, yet the whole people can.” IIaIIae.97.3.
A couple of thoughts:
First, it seems to me that undemocratic judicial seizures of power (e.g., Roe v. Wade) may not be law in the same sense that an undemocratic legislative seizure of power may not be law.
Second, based on my own very unscientific observation, what citizens see as undemocratically imposed injustice (e.g., Roe) is likely to generate a much greater sense of anger than what the same citizens see as democratically imposed injustice (e.g., California’s embryonic stem cell research, adopted by proposition). That anger can generate all sorts of things, from greater citizen involvement in the political system to citizens taking the law into their own hands.
Why should any citizen regard a law with which he disagrees, and that imposes unwanted burdens on him, as authoritative?
One answer might be that citizens have a natural duty to support just institutions. And even if the legislative process used to pass a major piece of legislation is corrupted in the ways described above, the system might still be just (or, better and more precisely, legitimate), all things considered, especially as compared to likely alternatives.
Staying with this hypothetical, and in formulating an all-things-considered judgment about the justice of process, one might also consider whether (1) public opinion, which initially favored the policy in question by large numbers, turned against it partly as a result of a massive disinformation campaign by corporate interests, (2) moderates in the party opposing the administration were threatened not to depart from the opposition at the cost of their future careers (political and otherwise), (3) the administration was driven to use extraordinary procedural options because of systemic failures in radically anti-democratic legislative institutions, where a relatively small minorities can block non-constitutional legislation favored by large majorities in most jurisdictions, etc.
It may be that there is no duty to obey a law produced by a corrupt legislative process. But that determination must at least account for whether the process had moral integrity before it was “corrupted,” whether that “corruption” is a reasonable response to deficiencies in the prior system (cf. Articles of Confederation), and whether refusal to obey the law produced by the “corrupted” system is morally appropriate in light of probable, and not merely possible, alternatives.