Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.
Showing posts with label lex pure poenalis. Show all posts
Showing posts with label lex pure poenalis. Show all posts

Saturday, April 23, 2011

Natural Law's Modern Cousin Germain: Lex Pure Poenalis

ACCORDING TO JOHN FINNIS THERE IS a division between the advocates of the lex pure poenalis theory (whose representative we might make Suarez) and the Thomists who generally do not support the notion of a law purely penal. The difference between the two schools is, in Finnis's view, the result of their notion of the human act. Essentially, the difference between the Suarezians and the Thomists on this issue is the result of their telescoping their views of a human act into the legislative process. The problem comes from their respective views of the ultimate role of the will--both in an individual man's actions and (by telescoping) in the legislature's actions. It is part of a historical tendency to elevate will over reason, in both human activity and in law and politics.
In short, in examining the purely penal law theories, with their attribution of all moving and obligatory force to the lawgiver's will, we are examining one limited aspect or offshoot of that vast movement of thought which has sought, with overwhelming historical success, to expel from the analysis of individual and political action all systematic attention to the intelligibility of the good which are realizable in action.
NLNR, 342.


Suarez v. Aquinas
Is Will or Reason Supreme in Law?

For a Thomist (as well as for a Suarezian), a human act is a series of interacting human capacities: there is (i) the cognitive grasp of an end or objective (an act of reason); (ii) there is the elicited desire for that good (an act of will); (iii) there is the practical reason's efforts to find means to that desired end (an act of practical reason); (iv) there is the decision to terminate the means-to-end analysis and to act (an act of will). NLNR, 337-38. Up to this point there is agreement between the Thomist and the follower of Suarez.*

Suarez, however, stops his analysis there, and attributes the final internal action required before the completion of the human act to the be internal decision to terminate the means-to-an-end analysis and to act, which is an act of will. For the Thomist, however, there remains one more step: an executive command or imperative order (an imperium) which is, at root, a directive of reason to oneself.** Suarez, on the other hand, finds Aquinas's imperium to be "unnecessary and indeed impossible, 'certainly a fiction'." NLNR, 339 (quoting Suarez, De legibus, I, c.5, para. 6; c. 4, para. 4).***

It is this subtle difference between St. Thomas and his intellectual opponents (which includes Vasquez and Suarez) as to the human act that explains the difference between them in the legislative act, since both seem to analogize from the human act to the legislative act. So, for St. Thomas, "[t]he important thing is that the expressed imperium, the promulgated 'intention of the legislator', represents to the subject an intelligible determinate pattern of action, which, having been chosen by the lawgiver to be obligatory, can actually be obligatory in the eyes of a reasonable subject because the ruler's imperium can (for the sake of the common good) be reasonably treated by the subject as if it were his own imperium." NLNR, 341.†

For, just as an individual's imperium, his formulated resolve to act, motivates his exertions by being transparent for the value of his objectives and the appropriateness of teh chosen means to them, so in the eyes of the subject the ruler's imperium is compelling precisely be being transparent for the common good, tot the needs of which the ruler's stipulation is treated by the subject (who recognizes the need for authoritative resolution of social problems) as a relevant response.

NLNR, 342.

While Suarez and Vazquez apply the notion of imperium to the legislative command, they see it "primarily as an expression of the lawgiver's decision (to impose an obligation)." As a consequence, "the important thing for them is the act of will (decision) thus expressed and addressed to subjects." Finnis believes that Suarez (mistakenly), then, "makes the point that unless the lawgiver decides to make obligatory the pattern of action which prefers, it will not be obligatory," which menns that "what makes the conduct actually obligatory is, precisely and simply, the lawgiver's decision that it should be."†† NLNR, 341.

What takes precedence in man's law in foro interno and in man's law in foro externo? Is it reason or is it will? Does the good precede the right, or does the right precede the good? Is the gist, the kernel of law rationalism or voluntarism? The Thomists will stand on the side of reason. The advocates of purely penal law, as well as most moderns, will stand on the side of will.
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*In assessing the thought of Suarez and Aquinas, one ought not to look at reason and will as wholly separate or reified or personified faculties within a man. The one-and-the-same person reasons and wills, and the reason and will "are psychologically entirely interdependent and only analytically distinguishable." NLNR, 338, n. 37. The various steps are not even to be considered to occur separately and seriatim: they are not "necessarily chronologically extended." NLNR, 337.
**Finnis cites to S.T. IaIIae, q. 17, art. 1: "Command [imperare] is an act of the reason presupposing, however, an act of the will. . . . . Consequently it follows that command [imperare] is an act of the reason, presupposing an act of the will, in virtue of which the reason, by its command [imperium], moves (the power) to the execution of the act." [I]mperare est actus rationis, praesupposito tamen actu voluntatis . . . . Unde relinquitur quod imperare sit actus rationis, praesupposito actu voluntatis, in cuius virtute ratio movet per imperium ad exercitium actus."
***Finnis also refers to Gabriel Vasquez who in his
Commentarium Ac Disputationum in Primam Secundae, disp. 49, c. 4 (which addresses St. Thomas's Summa Theologiae, IaIIae, q. 17, art. 17, ad. 1). Vasquez states that the Thomist notion of imperium was "unnecessary," "inept," and "futile." NLNR, 339 n. 39.
†Finnis cites to S.T. IIaIIae, q. 50, art. 2, c. and ad 3; q. 47, art. 12, c.
††Finnis cites to De legibus, I, c. 4, paras. 7-8; c. 5, paras. 16, 19.

Friday, April 22, 2011

Natural Law's Modern Cousin Germain: Obligation and Legislative Will

JOHN FINNIS ACCUSES ALL advocates of purely penal law* of trading in fictions, a "comedy of fictions," specifically fictions that tie in obligation to legislative will. But before dealing with that issue, there are also some factual and legal objections that may be noted.

The factual objections to the theory arise from the factual fictions that are required for the theory's exercise. It would be a rare legislator that would formulate the intent in passing a law with a penalty that he was offering the citizenry an option between obeying the law and avoiding the penalty or disobeying the law and paying the penalty. Disjunctive legislative intent--which is what is required for the purely penal law advocates' theories to have any validity--seems dubiously lacking. Even less likely is the legislator who would think that adding a penalty to a legal proscription is a "trump" card out of the moral obligation to follow that law. It is probably the case that legislators have some sort of sense that a certain behavior ought to be proscribed because it is best for the common good that it be proscribed and any penalty associated with violation of the law is to add law's sanction, to provide a disincentive to disobeying the law, and to advance the pedagogical, retributional, and reformational characteristics of the law. The factual basis for the purely penal law theory is, in Finnis's view, sorely lacking.

The second problem is that the theories confuse, or at least are calculated to confuse, the difference between a tax and a penalty, in that the theories invariably make what is a penalty into something much more akin to a tax.



The third problem is more fundamental in Finnis's view. The "real basic difficulty" of the theory "lies in the very notion which gives the theory its perennial plausibility and popularity," that being that notion that if a legislator can absolutely prohibit an act, he has the authority to do the lesser, namely, providing the option to the citizens either to avoid the act or to pay a fine or penalty if they infringe. The problem with this notion is that it obfuscates the source of any binding nature of positive law that being the moral "higher" or "deeper" principle. In other words, it is not legislative will alone that determines whether a law ought to bind or not bind, it is the legislative will coupled with the moral foundations behind that will that couple to make law binding:

By his decision to stipulate that φ is legally obligatory for X, a person with authority to make laws brings it about that (i) φ is legally obligatory and thus (presumptively) that (ii) φ is morally obligatory. . . . [but] these consequences flow not from any 'force' of the lawgiver's 'superior will', but from the interrelationship between (a) the fact that he has thus decided and (b) a 'higher' (or 'deeper') principle that makes that fact legally and/or morally significant.

NLNR, 334. The problem arises in that the legislator is not really a moral legislator; he is not a "moralislator." The moral obligation arises not from the legislative will,** but from a prior "higher" or "deeper" source, namely the relationship of the law to the common good which the law is intended to advance. If a law prohibiting some behavior derives its binding power from the fact that prohibiting that act is aimed that advancing the common good, then it is the very prohibition of that act that advances the common good, and not the application of a penalty, which has no real relationship to the common good. It is as if the legislator puts his law, like some child his toy boat, on the stream of the natural law; the legislator does not make the stream. The moral obligation to obey a law arises when the law prohibiting a certain act (or commanding a certain act) is passed and promulgated for the purpose of advancing the common good; the attachment of a penalty does not minimize that obligation.
[t]he lawgiver's acts of will have their significance for the practical reason of other people only because can take their place in a normative framework which is not of the lawgiver's making. That framework has no place for legislative 'intentions' (or 'acts of will') to withhold or modify moral obligations; for such intentions, if they had their intended effect, would seriously weaken the clarity and certainty and uniformity of application which are the very bases of law's utility as a specific way of realizing the common good.
NLNR, 335. It would therefore constitute an abuse of legislation to allow for a disjunctive law when the common good demands an outright prohibition of a certain act, an outright prohibition subject to sanction.

This is not say that a legislator cannot intentionally pass disjunctive statutes. In fact, something akin to that is done in cases of taxes that are imposed with the use of certain objects (e.g., cigarettes or liquor) or levies upon certain conduct (e.g., importation of luxuries). A sense of that is also found in cases where certain acts are prohibited unless licenses are obtained (and paid for) (e.g., hunting or fishing). In these sorts of cases, there is no prohibition to doing the act φ (or obligation to do act φ); rather, at best the legislator (often only implicitly) exhorts that act φ not be done without some prior act (license, payment of tax, levy) or that act φ be done (unless one obtains a license, pays a tax or levy). There is therefore no question of any moral obligation because the injunction to do or not do φ has no legal binding effect if the condition excusing it (tax, levy, license) is met. But this is a different beast altogether from the ordinary penal statute that contains a punishment or sanction for its violation. There is therefore an odd mix-up or blending of two different kinds of legislative acts in the thinking of the advocates (such as Francisco Suarez) of the theory of purely penal law.

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*As we noted in our prior posting a "purely penal law" (lex pure poenalis) is one which does not prohibit an action absolutely, but simply imposes a penalty in case one is convicted of its violation. Thus under the theory's notion, the legislator leaves it, in a certain sense, to the choice of the subject whether he will abstain from the penal action, or whether, if the violation is proved against him, he will submit to the penalty. Under the theory, there is no strict binding of the conscience to abstain from the prohibited act. There is a disjunctive (either/or) choice given the subject: either forego the act (obey the prohibition) or submit to the fine or penalty if caught and convicted of the act's violation.
**Finnis would say that the legislator (and his will) is an efficient cause of the moral obligation that arises from a promulgated law, but that the formal cause of that moral obligation of a law is the benefit to the common good. Finnis repudicates Locke's notion (found in his sixth Essay on the Law of Nature) that the "formal cause of obligation [is] the will of a superior." NLNR, 337 n. 35 (quoting Locke).

Thursday, April 21, 2011

Natural Law's Modern Cousin Germain: Obligation and the Bad Man

IN HANDLING THE TOPIC OF OBLIGATION, John Finnis addresses some subsidiary issues. One of those has to do with defining the obligation that is involved in a promise, more specifically the obligation that may be implied in law on an enforceable promise, a contract. Is the promise made a promise to perform the promised performance or is the promise (more subtly) one to perform the promised performance and if that promised performance not rendered, to pay for damages in such event? If I make a promise to paint a man's house, and I breach that promise, what are my obligations? Are they to paint the house as promised or are they to pay compensatory damages for having failed to paint the house? There is, similarly, a question that arises regarding the obligation to obey a law (say a prohibition against driving more than 70 mph, the breach of which is fined at $100). Is my obligation one to obey the law (that is, not exceed 70 mph on the road) or is it merely to pay the fine or suffer the sanction if I decide to disobey the law (pay the $100).*

The distinction between whether a law (or promise) obliges in conscience to prohibit or to require an act or whether a law (or promise) obliges only to make good if one violates the law (or promise) is a distinction that arose in the 16th century, largely as a result of Spanish theologians and jurists. While it might have some value if applied judiciously to ease conscientious confronted with a multiplicity of laws, particularly in the modern bureaucratic state, it was a principle that the "bad man" could grab and abuse. And so the "bad man" in the law, who wrote for the "bad man," Oliver Wendel Holmes,** sought to remove all moral obligation from the law, particularly in the area of contract (promise).

In his famous works "The Path of the Law" and The Common Law, Holmes sought to "wash with cynical acid" (which ran through the arteries of the cynical Holmes) the notion of duty. He fashioned a notion of duty from the perspective of a "bad man," a man without conscience, and therefore dumbed down the notion of duty to the "prophecy that if he does certain things he will be subjected to disagreeable consequences." In the area of contract, the sense of wrong in failing to fulfill a promise was entirely scrubbed out: "[T]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,--and nothing else." NLNR, 322 (quoting Holmes). "[T]he law's ambitions," however, "are higher than this, and its distinctive schemata of thought quite different" from that advocated by the cynical Holmes. NLNR, 325.


Justice Oliver Wendell Holmes, Jr.

But pace Holmes and his tendentious writings which sought to scrub moral duty from the law, most legal systems--recognizing the benefit to the common good of enforcing promises and laws as obligatory in themselves and not as merely providing for disjunctive options--seem to find something valuable in the enforcement of promise qua promise:

This virtually universal interpretation of contracts and contractual obligation has its significance . . . as an indication that contracts are upheld by the law for the sake of the common good, which is positively enhanced (i) by the co-ordination of action, and solution of co-ordination problems, made possible by performance of contracts (in the ordinary, not the Holmesian, sense of 'performance') and (ii) by the continued existence of a social practice which actively encourages such fully co-ordinate performance and discourages non-performance. If all contracts were interpreted and upheld in the Holmesian disjunctive sense, the common good of co-ordination might still, of course, be served to some extent. But it is served to a much greater extent if the law, as it does, (a) allows parties to enter into disjunctive contracts if they chose to, but (b) allows the parties to a contract to know with precision what unique course of action is required of the other party by law, in all those cases (the great majority) in which it is to the advantage of each party not to give the other party a free option between more than one course of action (as Holmes's contract does give).

NLNR, 324.
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*This refers to the distinction between a law that is "purely penal" (lex pure poenalis), "merely penal" (lex mere poenalis), or "disjunctive," and one that is not but binds the conscience pure and simple. There were also laws that were simply moral: lex moralis, and laws that were mixed in character (in other words incorporated a moral prohibition, but also added a fine or penalty for its violation): a lex poenalis mixta. If prohibitatory, the lex moralis and the lex poenalis mixta bound the conscience as to prohibited act. On the other hand a law purely penal did not bind the conscience as to the prohibited act, but simply bound the actor either to obey the law or pay the fine or penalty (if caught?!). One of the effects of the theory of purely penal laws is that it seems to inject a blurring into the difference between a tax and a penalty or fine. It changes most penalties into a tax for engaging in the "prohibited" activity. Ordinarily, this is not the intent of the legislative authorities. When the legislature passes a statute prohibiting speeds of 70 mph, it really desires to prohibit speeding, not provide for a tax on vehicles exceeding 70 mph.
**Lex Christianorum is no fan of the positivist and duty-bashing Holmes: See The Natural Law's Devil: Justice Oliver Wendell Holmes for the vicious theories of this vicious jurist, this jurist with cynical blood and cynical brain. He is a singularly unattractive fellow, as unattractive as Rousseau, but for different reasons. Whereas Rousseau was just a selfish little self-regarding and whining prig, Holmes was a cynical and warped moral monster with a stentorian voice. With Rousseau one has to deal with little demons and foolish and irresponsible inconsistencies. One can laugh at Rousseau. With Holmes one is dealing with legal nihilism advanced via a first-class intellect, with all the power of the devil himself. It was as if hell itself occupied the center of the jurist's mind so absent was God from anything he believed. One cannot laugh at Holmes. One either pities him or recoils with horror.