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THE JOURNAL JURISPRUDENCE

LAW: LEX VS. IUS

Dr. Jur. Eric Engle

Habilitand (Post Doc.)

Universität Bremen

Abstract: Rather than seeing law as a

answer to that question. That answer

vague “norm” or overly precise and

will not be exclusive: other

possibly untenable “rights”

this

definitions of law than the one that

article argues for a simpler

will be presented here exist. The

functionalist definition of law as a set

answer may even be incomplete.

of conditionals associated

with

However the answer proposed will

imperatives. As such it hopes to

be internally consistent. It will also

bypass two fruitless parallel debates

explain and permit prediction of

which however do not address each

what goes on in the field of law. Law

other: 1) the nature of “norms” 2)

is best understood as a term with

the nature of “rights”.

 

many meanings. By

distinguishing

 

 

 

between natural law, positive law,

I. WHAT IS LAW?

 

law as a prescription and law as a

 

 

 

description we can coerce the

One of the fundamental questions of

otherwise

ambiguous

term

into

legal theory is what is meant by the

tractable

forms.

Further

term “law”.1 This essay proposes an

distinguishing between law (lex) and

 

 

 

justice (ius) allows us to focus on

1 Definitions of law abound: E.g., the “bad

different aspects of both command

man theory” ("The prophecies of what the

and right.2

Unlike Kelsen,3 I

regard

courts will do in fact, and nothing more

law as consisting of a conflicting set

pretentious, are what I mean by the law."

Holmes, (1897) Path of the Law in David

 

 

 

 

Kennedy & Fisher (2007) at 31.) but also

 

 

 

 

 

 

 

 

Cicero (arguing law is inherently moral:

Hans Kelsen, Théorie Générale du Droit et

“Est quidem vera lex, recta ratio, naturae

de l'Etat Paris: Bruylant (1997) p. 166.

congruens, diffusa in omnes, constans,

2 Hobbes clearly makes the distinction

sempiterna, quae vocet ad officium jubendo,

between binding law (lex) and justice (ius)

vetando a fraude deterreat, quae tamen

(see generally Hobbes, Leviathan). Hobbes,

neque probos frustra jubet aut vetat, nec

Leviathan, Richard Tuck ed., (1996) at 91.

improbos jubendo aut vetando movet.”True

Aristotle in contrast seems to believe that

law is right reason in accord with nature.

law and justice are congruent sets.

 

Cicero, (51 b.c.) De Republica) and of course

3 Hans Kelsen, Théorie Générale du Droit et

Kelsen who argues that the law is a “norm”

de l'Etat Paris: Bruylant (1997) p. 166.

(2008) J. JURIS 31

ENGLE ON LAW: LEX VS. IUS

of conditional statements and consequent imperatives rather than as a hierarchically harmonious set of norms.4 Further, I argue that

4 "A plurality of norms forms a unity, a system, an order, if the validity of the norms can be traced back to a single norms as the ultimate basis of validity. This basic norm qua common source constitutes the unity in the plurality of all norms forming a system. That a norm belongs to a certain system follows simply from the fact that the validity of the norm can be traced back to the basic norm constituting this system. Systems of norms can be distinguished into two different typse according to type of basic norm constituting the system. Norms of the first type are 'valid' by virtue of their substance; that is, the human behavior specified by these norms is to be regarded as obligatory because the content of the norms has a directly evident quality that confers validity on it. And the content of these norms can be traced back to a basic norm under whose content the content of the norms forming the system is subsumed, as the particular under the general. Norms of this type are the norms of morality. For example, the norms 'you shall not lie', 'you shall not cheat', 'keep your promise', and so on are derived from a basic norm of truthfulness. From the basic norm 'love your neighbour', one can derive the norms 'you shall not harm others', 'you shall help those in need', and so on.

The basic norm of a given moral order is of no further concern here. What matters is knowing that the many norms of a moral order are already contained in its basic norm, just as the particular is contained in the general; thus, all particular moral norms can be derived from the general basic norm by way of an act of intellect, namely, by way of a deduction fom the general to the particular. The basic norm of morality has a substantive, static character."

Hans Kelsen, An Introduction to the Problems of Legal Theory (RR1) Oxford: Oxford University Press, 1992 Page 55-56.

(2008)

normative inference is not only possible, it is also necessary if law is to be something other than mere force -- and it is, or it would not be obeyed. The force behind law is not only physical violence it is also, and even more often, moral sanction.

II. METHODOLOGY

A. LEGAL SCIENCE

In order to determine what law is we must first understand what is meant by legal science.5 This is because if law cannot be the object of scientific inquiry then the question “what is law” could not be answered at all. This paper proposes that law can in fact be the object of scientific inquiry. However, legal science, like any of the human sciences, is not as exact (but hopefully as exacting) as any of the natural sciences.

In the natural sciences, e.g. physics, chemistry etc., science is nomothetic:6 that is, it poses

5 For an exposition and critique of competing ideas of legal science see Howard Schwber, The "Science" of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education, 17 Law and History Review (1999) 17.3 (1999): 94 pars. 29 May 2008 <http://www.historycooperative.org/journ als/lhr/17.3/schweber.html>.

6 Christiane et Ota Weinberger Logik Semantik Hermeneutik München: Beck'sche Elementarbücher, (1979). Page 38.; Stanley

J. JURIS 32

THE JOURNAL JURISPRUDENCE

principles which themselves are laws strictu sensu.7 Nomotheses cannot be derogated from. For example, every time that water is heated it expands; if water is sufficiently heated at 1 atmosphere of pressure it will eventually boil and evaporate.8 The objects of natural sciences have no volition – they literally must react as they do.

This is not the case in the human sciences generally, including legal science. It is not possible to state that every time event X occurs outcome Y will follow when the object of event X is a human or a group of humans. The objects of human sciences, unlike the objects of natural sciences, are people and groups of people. People as individuals definitely have will (volition), the capacity to act upon

L Paulson (1990) Kelsen on legal interpretation

Legal Studies 10 (2) , 136–152

7 For an argument that law is in fact nomothetic (or at least distinguished from social science in that it must appear nomothetic…) see Jeremy A. Blumenthal, Law and Social Science in the Twenty-First Century, 12 S. CAL. INTERDISC. L.J. 1, 47 (2002).

8 For a good recapitulation of Popper’s views on facticity in science see: Eric Dodson Greenberg, FALSIFICATION AS FUNCTIONALISM: CREATING A NEW MODEL OF SEPARATION OF POWERS, 4 Seton Hall Const. L.J. 467, 479-480. (1994).

and interact with their environment. Because of this capacity it is impossible to propose nomotheses about human behaviour. Even if most people will react in a given way to a certain stimulus some may not and all can at least claim to have been able to have reacted otherwise. Human science cannot discover “laws” but only general trends and tendancies – which nonetheless is knowledge.

This is not to say that there can be no human science. Many human activities are quantifiable. Some are verifiable. That is why it is possible to make statements regarding human tendencies and trends, albeit with less exactitude than in the natural sciences. It is even possible for the human sciences to make general predictions. By a comparison of the differing scientific opinions about a certain human activity it is possible to develop a well informed viewpoint and to make generalizations and predictions thereon. However, though the dialectical method can determine which opinions are roughly correct, that determination is still only approximate. One must both recognize the possibility and limitations of human sciences.

(2008) J. JURIS 33

ENGLE ON LAW: LEX VS. IUS

 

B. THE EMPIRICAL METHOD9

also where knowledge is not

 

possible.

This paper has already hinted that one test to determine whether a position is scientifically known is to determine whether a prediction can be made based upon it. If a fact is known then we may be able to make a prediction based upon it. Further, though a fact be unknown it may nonetheless be knowable, though at present unknown. An unknown fact may of course also be unknowable. But an unknown fact cannot be the basis of science – although it can be the basis of speculation and hypotheses. Ideas may be true, false, unknown and possibly also unknowable.

Facts are knowable if they can be verified. Facts are verified through empirical testing. By empirical verification it is possible to know that in every observed instance of X, Y occurs, and from which we may infer that in future instances of X, Y will recur. Thus the material basis of science explains why and to what extent knowledge is possible – and

Although empirical verification in human sciences is less exact than in natural science it is still possible. A theory can be said to be verified if there is a correspondence between material reality and the predicted outcome.10 What are the predicted outcomes in law?

When we look at the law we see law books, courts, police, lawyers, legislators and citizens. We see the predictions of a legislator or judge as to what will happen if a person does a certain act (conditionals) or what will happen to person X (commands). However, sometimes what is written in the law books, i.e. what is predicted, is not at all an accurate prediction of what actually happens. And many times events occur which are not addressed in the law books. What are we to make of the absence of correlation between law in the books and life?


 

 

 

 

 

10 Popper, (1957) Science: Conjectures and


9 See, generally, Bacon, Francis, Novum


Refutations


Organon

(1620).

Bacon

correctly

http://cla.calpoly.edu/~fotoole/321.1/pop


emphasizes the experimental method but

per.html Also see: Popper, (1963) "Science


wrongly rejects the dialectic and is for that

as Falsification" in Conjectures and Refutations


reason the source of the limitations in

(1963); Karl Popper, Objective Knowledge:


Anglo-Saxon thinking to empiricism.

An Evolutionary Approach (1972).

(2008) J. JURIS 34

THE JOURNAL JURISPRUDENCE

C. SCHOLARLY LAW VERSUS

PRACTICAL LAW

There are two methods by which we could attempt to answer the question “how are we to explain and define the absence of correlation between law in the books and life”. The idealist approach (i.e. scholasticism or neo-platonism) would divorce itself completely from the imperfect material reality. 11 It would argue that material reality is but an imperfect reflection of ideas and that failure of persons to conform to the law and of the law to punish them would imply that either the law and justice or the person and justice were not in a correct relation to each other.12 This might in theory be accurate. However it is empirically incapable of verification. Because the idealist

11See, Plato Phaedo, available at: http://classics.mit.edu/Plato/phaedo.1b.txt

12Plato, Republic especially book VI (e.g., “And do you not know also that although they make use of the visible forms and reason about them, they are thinking not of these, but of the ideals which they resemble; not of the figures which they draw, but of the absolute square and the absolute diameter, and so on –the forms which they draw or make, and which have shadows and reflections in water of their own, are converted by them into images, but they are really seeking to behold the things themselves, which can only be seen with the eye of the mind?“). Available at: http://classics.mit.edu/Plato/republic.mb.t xt

method does not lead to the development of empirically verifiable positions it is not in fact be scientific. It could be mythology. It could be pure formal representation. But it could not be science and certainly not applied science. This paper specifically rejects the idealist perspective and acknowledges it in order to be properly distinguished from it.

The other response to the question “what should be the reaction of a legal scientist to the fact that statements of legislators and even judges and the actions of persons do not always strongly correlated (and sometimes do not correlate at all)?” is to regard “law” as commonly understood, critically. “Scholarly Law” – law in the books, i.e. the statements of legislators and judges, is a description of what a ruling class thinks should happen. However, the daily material reality is what in fact happens. The first can be called “scholarly law” -- law in the books. This paper will call the second “practical law” - law in the streets. When the two are closely correlated that is evidence either of a very just regime or of a highly efficient tyranny. When the representation of what a ruling class believes should happen (“scholarly law”) and of what

(2008) J. JURIS 35

ENGLE ON LAW: LEX VS. IUS

does in fact happen (“practical law”) is too far out of balance a revolution occurs and a new ruling class takes control. The differing possible relations between law in the books and law in the streets are discussed further below.

III. LAWS ARE CONDITIONALS AND

IMPERATIVES

When we look at law in the books we see that all laws are stated as conditionals which if actuated will trigger imperatives. That is, all laws are of the form "if... then". If the conditional is fulfilled then the imperative, reward or punishment, should be imputed to the subject of the conditional statement. The degree of correspondence between these conditionals and their outcomes is the measure of the efficacity of the regime promulgating law.

The fact that a direct correspondence between the conditional and imperative commands of law is in fact impossible due to free will explains why legal science cannot be considered nomothetical. A nomothetical science, e.g., natural sciences, makes statements which are laws in the sense that on every

occurrence of X, outcome Y will follow. The laws of any legal system are almost always imperfectly enforced. Thus, legal science is not nomothetical. To speak of legal science as a nomothetical science like the natural sciences would require that every law be enforced at all times and in all places and that humans behave invariably. That is clearly not the case.13

However, while it is clearly true that law is but imperfectly enforced it is also clear that law is generally enforced14 and perhaps even more often than not just. So we can speak of a legal science which makes generalized predictions as to the probability of event Y following event X. Although legal science is not nomothetical, it is dialectical and

13H. Kelsen,: "L'efficacité n'est pas une <<condition per quam>> de la validité" in Le Positivisme Juridique, M. Troper, C. Grzegorczyk, (editeurs) Paris: LGDJ (1992) page 326.

14"L'efficacité de l'ordre juridique tout entier est la condition nécessaire de la validité de chacune des normes particulières

de cet ordre. C'est une condition sine qua non mais non une condition per quam. L'efficacité de l'ordre juridique global est la condition, mais non la raison de la validité des normes qui le consituent." H. Kelsen,: "L'efficacité n'est pas une <<condition per quam>> de la validité" en La Positivisme Juridique, M. Troper, C. Grzegorczyk, (editeurs) Paris: LGDJ (1992). Page 326.

(2008) J. JURIS 36

THE JOURNAL JURISPRUDENCE

is in that sense scientific.15 Legal

is one element of the superstructure


science is dialectical, first, in the

of a particular mode of production


Aristotelian sense of dialogos, that is

which justifies and defends a


as the object of discourse.16 Through

particular mode of production, i.e. a


comparison

of

 

differing

legal

given productive base19 (also known


opinions we arrive at a better sense

as infrastructure) at a particular point


of the best approximation of the

in

history.

However,

historical


laws

 

which

govern

human

development is dialectical:20 it is the


behavior.17 But legal science is also

outcome

of

competition

between


dialectical in the Marxist sense:18 law

differing modes of production. Thus,


 

 

 

 

 

 

 

 

 

legal science, as one element of the


15 "The law is dialectic in a deeper sense


superstructure

 

of

a

mode

of


than its adversary process. It mediates most

production,

is

subject

to

the


significantly between right and right.’ ... The


historical dialectic which determines


only questions that matter for the law are


those in which there is something ‘right,’ or

whether

that

mode

of

production


good, on both or all sides of the


will replace a less developed mode of


controversy.... When right exists on both


sides of an issue, the job of the law is to

 

 

 

 

 

 

 

 

 


mediate

between

the

‘rights,’

to

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 


accommodate, to adjust, to attempt to

http://www.marxists.org/archive/marx/


sacrifice as little as possible of what is ‘right’

works/1847/10/31.htm

 

 

 

 


on both sides.” Paul Freund cited in Roger

19 Stuart Bonner "Conquest by Contract:


B. Dworkin, Limits: The Role of Law in

Wealth Transfer and Land Market Structure


Bioethical Decision Making 6-7 (1996):

 

in Colonial New Zealand" Law and Society,


16

Aristotle,

Posterior

Analytics (ca.

350

Vol. 31, No. 1 2000. p. 47.

 

 

 

 


B.C.)

Translated by G. R. G. Mure, Book

20 "En vertu de la loi dialectique, chaque


I,

Part

1.

 

Available

at:

mode de production ou infrastructure en


http://classics.mit.edu/Aristotle/posterior

place renferme, dès le début de son


.1.i.html

 

 

and

 

 

at:

instauration, sa négation interne, qui, plus


http://www.rbjones.com/rbjpub/philos/

tard, se déclare ouvertement, par l'apparition


classics/aristotl/o4219c.htm

 

 

 

au sein de ce mode ou de cette


17 Aristotle, Topics, in Aristotle, 1 Great

infrastructure,

de

nouvelles

 

forces


Books 143 (W.A. Pickarel trans., Cambridge

productives (outillage, mains d'oeuvre, etc.);


1994) (1952).

 

 

 

 

 

 

celles-ci réclament pour s'affirmer un


18 E.g., "Any development, whatever its

nouveau mode de production, une nouvelle


substance may be, can be represented as a

infrastructure économique,

de

nouveaux


series of different stages of development

rapports

sociaux,

une

nouvelle


that are connected in such a way that one

superstructure. Le règle de droit, qui fait


forms the negation of the other...In no

partie de cette dernière, se trouve, du même


sphere can one undergo a development

coup, elle même niée par ces nouvelles


without negating one's previous mode of

forces productives: son remplacement par


existence." Marx, Moralizing Criticism &

une règle de droit nouvelle se fait alors


Critical Morality, Oct. 1847, in Marx Engels

sentir, mais comme l'effet, et non comme la


Collected Works, Vol.6, p.317 (1847) from

cause

du

changement

d'infrastructure."


Deutsche-Brüsseler-Zeitung

No.

86,

Stoyanovitch, La Philosphie du Droit en


October

28,

1847.

Available

at:

URSS, page 6. Paris: LGDJ (1965).

 

 


 

 

 

 

 

 

 

 

(2008) J. JURIS 37

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

production or whether it will itself be replaced by one which is more developed.
The theoretical abstractions can be quickly and clearly illustrated in a concrete example: law is dialectical in the Aristotelian sense21 in that every judge faces at least two competing monologues – antithetical positions
– which are presented by the plaintiff and defendant. The arguments of the plaintiff are one pole of the dialectic and the arguments of the defendant are the opposite pole. The decision of the judge is the dialectical synthesis which arises out of the conflict of the competing positions. Thesis: plaintiff. Antithesis: Defendant. Synthesis: judge. But this dialectic is Aristotelian in that it is a synthesis of competing ideas of individuals – it is not a dialectic of competing classes. The judge, by comparing the competing ideas of the plaintiff and defendant (expert opinion) arrives at a best possible view synthesizing the correct points of each competing thesis and rejecting the incorrect points.
21 See generally, Stanford Encyclopedia of Philo., Aristotle's Logic (2004) http://plato.stanford.edu/entries/aristotle- logic

ENGLE ON LAW: LEX VS. IUS

Although our understanding of facts is based on the material base that does not mean that we can ignore the ideology, i.e. the superstructure, which grows out of and justifies that base22 – one element of which is “scholarly law”. We now turn our attention to an analysis of the machinations of the legal system within a given mode of production and more specifically to an analysis of the superstructure of a given mode of production. What is scholarly law?

Scholarly law - law in the books - is law understood as the (supposedly) authoritative statements of legislators and judges and can be analyzed syntactically as consisting at least, and perhaps exclusively, of conditional statements and imperative commands. Most conditionals imply an imperative command activated by occurrence of the condition(s). Similarly, many, but not all, imperative commands are actuated by the occurrence of a conditional of “scholarly law” (law in the books). It is of course possible for a law giver to issue a purely imperative statement or for a

22 Raymond Williams, Base and Superstructure in Marxist Cultural Theory, in Rethinking Popular Culture: Contemporary Perspectives 407 (Chandra Mukerji & Michael Schudson eds.) (1984).

(2008) J. JURIS 38

lawgiver to issue a hortatory conditional statement which in fact triggers no imperative. But the majority of laws invoke imperatives upon occurrence of a condition.

Conditional statements can be further analyzed as consisting of rules and of exceptions to the rule, and even of exceptions to the exception. This process of rule, exclusive exception, and inclusive exception could in theory continue indefinitely.

The conditional statements of the law may be either procedural rules of positive law or substantive rules which may (or may not) reflect principles of natural law and/or natural justice. Substantive rules of law are determined either by procedural elements of positive law (framework questions which influence practical outcomes) or by substantive aspects of natural law, natural justice or a combination thereof. The conditional statements of substantive law are themselves conditioned and in part determined by procedural rules and by general principles of law and/or fundamental rights. This paper refers to these over-arching guiding principles and rules about rule

THE JOURNAL JURISPRUDENCE

creation and enforcement as meta- rules.

IV. META RULES

A. GENERAL PRINCIPLES

To understand meta-rules we must distinguish them structurally and then compare them because of asymmetries in the common law and civil law.

The idea of “general principles of law”, a source of meta-rules, is a central concept of civilianist law. General principles of law are a source of international law worldwide23 but they are also a source of persuasive authority as to the domestic law in civilianist jurisdictions.24 General principles of law are not however a source of domestic law in the common law,25

23 See, e.g. Legal Information Institute, WEX, General Principles of Law available at: < http://topics.law.cornell.edu/wex/internati onal_law> (last visited May 28, 2008) .

24 "Il existe par ailleurs de nombreuses règles non écrites qui sont admises par la conscience collective et qui semble tellement évidentes que le législateur n'a pas estimé devoir les préciser dans un texte de loi : ce sont les principes généraux du droit (exemple : les droits de la défense)." Thierry Smets, "Les sources du Droit", http://users.skynet.be/sky19192/lessourc.h tm

25 Blackstone analyzes the common law as consisting of written law (statutes) and

(2008) J. JURIS 39

ENGLE ON LAW: LEX VS. IUS


generally speaking, though

perhaps

B. FUNDAMENTAL RIGHTS AND


they are dimly reflected in the

RULES OF PROCEDURE

 

 

 

 


general

principles

of

equity,

 

 

 

 

 

 

 

 

 

 


embodied as maxims of law.26

 

 

That

 

asymmetry mirrors

another


 

 

 

 

 

 

 

one.

 

Unlike

many

civil

law


unwritten law (the common law). See 1

 


jurisdictions,

most

common

law


William

Blackstone,

Commentaries,

69.

 


Common law is customary law, whether

countries

 

have

 

 

adopted


local or national.

 

 

 

 

 

constitutionally binding

charters

of


26 Blackstone specifically considers the


rights and given their highest courts


maxims of law, which, in civil law, are


expressions of general principles of law, as a

the

 

power

to

 

review

the


possible source of the common law. Id.

constitutionality

of

 

ordinary


However, he rejects the maxims as a source

 


of law, arguing that they are but expressions

legislation. Constitutional charters of


of custom and that maxims are vague and

fundamental rights are seen either as


inchoate and must be proven via inquiry


a reflection of fundamental rights


into custom. Id. These maxims of law,


however,

persist in

the

common law

in

and

freedoms

found

in natural law


equity and it may be argued that maxims are


and natural justice or are themselves


in fact expressions of general principles of


law, as is the case in the civil legal systems.

taken as the source of fundamental


Examples of such maxims include: sic utero

rights and freedoms. In functionalist


tuo ut alienum non laedes. See Bassett v.


Company, 43 N.H. 569, 577 (1862); Swett v.

terms, the common law charters of


Cutts, 50 N.H. 439, 442 (1870). Pacta quae

rights and freedoms operate similarly


contra leges et constitutiones, vel contra


to the civilianist general principles of


bonos mores sunt nullam vim habere


indubitati

Juris est

--"

Good

morals"--

law.

Though

fundamental

rights,


contracts against the constitution or good


especially in the United States, are


morals are void. Austin's Adm'x v.


Winston's Ex'x, 11 Va. 33, 36 (1806).

generally

limited

to

individual


Because the common law, as opposed to

freedoms

(negatives

“freedoms


statutory law, is induced from specific cases


and not deduced from general principles,

from”

rather

than

positive

“rights


the simpler and better view is Blackstone's.

to”)

 

they

sometimes

contain


Maxims and general principles continue to

 


collective rights as well. General


haunt the common law due to


methodological incomprehension of the role

principles

of

law

/

fundamental


of general principles as deductive

rights

can

thus

be

seen

as


instruments in a system of written law (i.e.,


the European civilian legal system). Thus in

 

 

 

 

 

 

 

 

 

 


The Harrisburg, the U.S. Supreme Court

 

 

 

 

 

 

 

 

 

 


quite correctly links the ideas of "natural

 

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 


equity and the general principles of law."

misapprehending the role of general


119 U.S. 199, 206 (1886). Blackstone

principles in legal deduction. This may be


appears to be the source of the split on the

because he assigns the role of general


role of maxims and, by extension, general

principles to ecclesiastical courts, where the


principles of law in the common law and

general principles atrophied. See Blackstone,


civil law. One could

accuse Blackstone

of

Commentaries *83.

 

 

 

 

 

(2008) J. JURIS 40

THE JOURNAL JURISPRUDENCE

conceptually similar. They can be seen structurally as:

Binding or non-binding

Independent sources of law or reflections of natural law and/or as reflections of natural justice

Collective or individual

Negative “freedoms from” or positive “rights to”.27

In whatever form these rules are constituted, general principles of law and the concepts of fundamental rights and freedoms are, like procedural rules, meta-rules of any legal system. They are rules which determine how to form other rules. This implies the “substance versus procedure” distinction is somewhat spurious.28

Fundamental rights are essentially “substantive” and so are a more limited concept than general principles of law, which are both “substantive” and “procedural”. But both fundamental rights and general principles of law are generally binding rules and thus they are similar. Because of the similarities

between general principles of law and fundamental rights and because of the increasing integration of common law and civil law in the European Union, and for simplicity in our discussion of meta-rules this paper links them – though in legal practice general principles of law are both more abstract and wide ranging than fundamental rights and freedoms. They may be able to be invoked more often, in theory, but have less effect in practice because of their generality and ambiguity.

What difference, if any, exists between fundamental rights and fundamental freedoms? The bourgeois revolutions generally presented and defended negative human freedoms from government intrusion into the private sphere.29 Those freedoms were asserted by the rising middle class of merchants and proto-industrialists as a limitation upon the power of the receding aristocracy.30 The rights which they proposed were negative in the sense of being “freedoms from”. Those were “first generation rights” –

 

 

 

29

See generally, Eric Engle, Universal

 

 

 

27

See generally, Eric Engle, Universal

Rigths: A Generational History, 12 Ann.

Rights: A Generational History, 12 Ann.

Surv. Int'l & Comp. L. 219 (2006).

Surv. Int'l & Comp. L. 219 (2006).

30

See, e.g., Stephen P. Marks, Emerging

28

See generally, Kennedy, Duncan. "Form

Human Rights: A New Generation for the

& Substance in Private Law Adjudication,"

1980s?, 33 RUTGERS L. REV. 435, 437

89 Harvard Law Review 1685 (1976).

(1981).

(2008) J. JURIS 41

ENGLE ON LAW: LEX VS. IUS

negative “freedoms from” rather than positive “rights to”.31

The socialist revolutions which have occurred since 1848 have increasingly inaugurated not negative “freedoms from” but positive “rights to”. The rising working classes asserted a right to minimal standards of living – maximum hours, minimum wages, and a variety of insurance systems against accident, unemployment, and ill health. Thus the positive “rights to” expressed not only as fundamental constitutional rights but also as often as not in secondary legislative administrative law social insurance systems.32

What these waves of revolutions and the freedoms and rights they inaugurated have in common is a reordering of the principle of distributive justice.33 Under aristocratic rule the principle of distribution was unequal and based on heredity. The bourgeois revolutions inaugurated an era of distribution based, supposedly, on

merit.34 And the socialist revolutions introduced a principle of distribution according to need.35

This historical evolution from negative individual freedoms, i.e. guaranties against coercion, to the affirmative rights of all classes to a decent life demonstrates the historical dialectical character of the elaboration of rights. This dialectic expresses itself in a taxonomy which in turn reflects a theory of justice. General principles, fundamental rights, fundamental freedoms, and rules of procedure are all examples of meta rules: they are rules about making rules. However, procedural rules are purely technical constraints. They do not touch upon substantive justice. As such they are creations of positive law. General principles/fundamental rights in contrast are reflections of the ruling class’s notion of natural justice. They determine – or at least so holds a ruling class – how substantive justice is to be achieved. General principles themselves may express either distributive or corrective justice. This

31

See generally, Eric Engle, Universal

 

 

 

 

Rigths: A Generational History, 12 Ann.

 

 

 

 

 

 

 

 

Surv. Int'l & Comp. L. 219, 257 (2006).

34 Schiller An die Freude “crowns but to

32

Eric Engle, Universal Rights: A

those who have earned them”.

 

Generational History, 12 Ann. Surv. Int'l &

35 Karl Marx , Critique of the Gotha

Comp. L. 219, 259 et seq. (2006).

Programme

1875

Available

at:

33

Aristotle Nicomachean Ethics, 1131 a 24-

http://www.marxists.org/archive/marx/wo

28.

rks/1875/gotha/index.htm

 

 

 

(2008) J. JURIS 42

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 

THE JOURNAL JURISPRUDENCE


is the interplay of history, law, and

reflects and express of morality. But


justice.

 

 

 

 

 

 

 

the description of a conditional or


 

 

 

 

 

 

 

 

 

command of law as law is merely


V. LAW AND JUSTICE

 

 

 

positive. Unjust laws have no moral


A. “LAWAS DESCRIPTION AND

prescriptive force but can have a


“LAWAS PRESCRIPTION

 

 

 

practical descriptive validity.

 

 

 


Our understanding of the law must

B. LEGAL SCIENCE IS NOT STRICTLY


also

consider

the

relationship

NOMOTHETICAL

 

 

 

 

 


between law and justice. Some assert

 

 

 

 

 

 

 


that there is a necessary connection

The dual character of law as


between law and justice, and thus

prescription and law as description


that a bad law is not a law at all but

can also be seen from the fact that


merely a sham pretending to be

legal science is not strictly


law.36 This is true in the sense that

nomothetic because both ruler and


one is justified in breaking an unjust

ruled have volition. Since legal


law -- there is no crime in breaking a

science is not nomothetic we


law itself criminal. But it is not true

account for the variance between


in the sense of law as conditional

what is prescribed (scholarly law)


predictive statements. This is the

and what actually happens (practical


difference

between

law

as

law) as the difference between


description and law as a prescription.

prescription and

description.

The


The prescriptive power of law -- it's

dual character of law as prescription


normative character -- arises from

and law as description can be seen


the

idea

that

law

does

or should

from the

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

empirical method which shows the


36 “What

of

the

many

deadly, the

many


positive

validity

of

a law

is

not


pestilential statutes which nations put in


dependant on its moral character or


force? These no more deserve to be called


laws than the rules a band of robbers might

degree of enforcement.37 Empirically


pass in their assembly.... [T]herefore Law is

we know those who break unjust


the distinction between things just and


unjust, made in agreement with that primal

laws do so at their own peril and that


and most ancient of all things, Nature; and

a truly

unjust

law

can

well

be


in conformity to Nature's standard are


 

 

 

 

 

 

 


framed those human laws which inflict

 

 

 

 

 

 

 


 

 

 

 

 

 

 


punishment upon the wicked but defend

37 H. Kelsen,: "L'efficacité n'est pas une


and protect the good.” See, Cicero, “Laws”

<<condition per quam>> de la validité" en


in: Clarence Morris, (ed.), Great Legal

La Positivisme Juridique, M. Troper, C.


Philosophers: Selected Readings in Jurisprudence 51

Grzegorczyk, (editeurs) Paris: LGDJ (1992)


(1997).

 

 

 

 

 

 

 

page 326.

 

 

 

 

 

 

(2008) J. JURIS 43

generally enforced. Likewise we know the legislator cannot always enforce its will.

ENGLE ON LAW: LEX VS. IUS

D. POSITIVE LAW AND NATURAL

JUSTICE


C. LAW AS PREDICTION

 

 

 

The connection between law and


 

 

 

 

 

 

 

justice is not a necessary one -- there


As well as being a description of

can indeed be just laws. When a law


what is and a prescription of what

is just it may be said to partake of


should be law is also a prediction of

natural justice. But a law may partake


what will happen in the real world

of natural justice without having the


when a condition occurs.38 When we

needed force to make it effective. So


examine the facts it is clear that law

a just state must exhibit a tempered


is not in practice inevitably just. The

union of natural law (force) and


laws of a tyrant are certainly bad laws

natural justice (morality).39 There are


but they are none the less positive

at least two types of unjust states:


laws because the tyrant -- unlike the

states which are powerless and lack


thief -- has state power. However,

the capacity to enforce what appear


when law is immoral then one is

 

 

 

 

 


justified

in

breaking it.

It

is not

 

 

 

 

 


39 See,

Hobbes,

Leviathan, where

he


criminal to violate a law which itself


explains the relation between natural justice


is a crime. Unjust

laws

eventually


and natural law. I combine Hobbes and


provoke

a

backlash

and

ultimately

Aristotle;

Aristotle

rightly argues that

laws


are natural and positive and argues, I think


become unenforceable – in that


correctly, that the natural justice is inherent


sense, natural justice is self enforcing

in the human condition. Hobbes attempts to


i.e. quasi-nomothetic. We cannot say

refine Aristotle by distinguishing further


between natural law and natural justice.


with certainty whether or when any

However, Hobbe’s natural law is merely the


particular

unjust law will

become

law of the jungle - the law of the strongest.


Hobbes natural justice is merely


unenforceable however we can say


conventional. I do not see natural justice as


they generally do and are more likely

merely conventional because I don’t believe


to become so as time goes one.

any state of nature ever existed: Aristotle


was correct that political (social) life is


 

 

 

 

 

 

 

inherent to the human condition. However,


 

 

 

 

 

 

 


38 O. W. Holmes, Justice, Supreme Judicial

because natural justice may be temporarily


Court of Mass., The Path of the Law,

ignored by positive law (an unjust state and


Address at the Dedication of the New Hall

unjust laws can exist) it is useful to


of the Boston University School of Law

distinguish between natural law and natural


(Jan. 8, 1897), in 10 Harv. L. Rev. 457, 461

justice. Natural law is the practical material


(1897) ( "The prophecies of what the courts

realization of natural justice; natural justice


will do in fact, and nothing more

is the theoretical concept which arises out of


pretentious, are what I mean by the law.").

empirical observation.

 

(2008) J. JURIS 44

to be just laws, and states which are powerful but enforce unjust laws.
E. DISTRIBUTIVE AND CORRECTIVE JUSTICE
Justice may, as Aristotle teaches, be considered either distributive or corrective.40 Distributive justice, sometimes known as geometric or social justice, determines the general principle according to which (public) goods are to be distributed: merit, need, equality, or inequality.41 Distributive justice also determines which goods are public. The fact that the choice of distributional principle can be different in different states indicates that the choice of which system of distribution to take up is positive and conventional rather than natural and inevitable.42 Distributive justice is positive not natural. Corrective (transactional) justice in contrast sees to it that (private) exchanges are fair and equal43 – that contracting parties are not cheated, that victims of other’s negligence are compensated (restitution).44 As such it appears to be universal, i.e. natural. However, corrective justice may not
40 Aristotle Nicomachean Ethics, 1131 b 30-
34.
41 Ibid., 1131 a 24-28.
42 Ibid.,1131 b 30.
43 Ibid.,1131b 24 - 1132a 2.
44 Ibid.,1132a 24, 1132b 18-20.

THE JOURNAL JURISPRUDENCE

be translated into practice: natural justice is not inevitably translated into natural law. An unjust regime could in fact enact positive laws of corrective (in)justice.

F. EX ANTE LEGISLATION AND EX POST JUDGEMENT

From a temporal perspective, legal decision making is of two kinds: ex ante, that is prior to the act being adjudicated or ex post, that is, a decision made after the act. Statute laws are almost always enacted ex ante. Judicial decisions are, as to the parties, ex post – though they may (common law) or may not (civilianist law) also have ex ante effect as to future litigants.

For example, the crime of genocide was, in terms of positive law, ex post

– there were no treaties against genocide until after World War II.45 Very few people would argue that it is substantively unjust to arrest mass murderers. Nevertheless, the statute laws against genocide were in fact laws ex post: the mass murder of

45

See generally,

Sévane Garibian,

« Génocide

arménien

et conceptualisation

du

crime

contre

l’humanité.

De

l’intervention pour cause d’humanité à l’intervention pour violation des lois de l’humanité », Revue d’Histoire de la Shoah, n° 177-178, 2003, pp. 274-294.

(2008) J. JURIS 45

ENGLE ON LAW: LEX VS. IUS

Armenians by the Ottoman Empire46 was a violation of natural justice - but it was not a violation of any then existing treaties of positive law.47

One of the objectives and achievements of the bourgeois revolutions was to replace arbitrary tyrannical rule with decision based upon merit. As such, the bourgeois revolutions represented a change between one principle of distributive justice (merit reflected in birth) to another (merit reflected in action). One way in which the arbitrary character of (ossified) aristocratic rule was to be replaced was by the elimination of ex post facto laws48 That is, no crime would be made after the fact (nul crimen sine lege). Statutes could only prospectively ordain behavior. Likewise, merit rather than birth would become key by eliminating hereditary priveleges

(titles)49 and disabilities (“corruption of blood”).50

One of the features of bourgeois liberal government and of socialist governments is the specialization of the different organs of state. The role of a legislator is to establish, ex ante, rules which will prospectively bind members of society. As such the pronouncements of the legislator are general – though admittedly not as general as fundamental rights or the general principles of law. In contrast, the role of the judiciary is to make decisions ex post, relying (supposedly) upon rules promulgated by the legislator ex ante. As such the decrees of courts are highly specific and much of courts’ reasoning is dedicated to developing the linkage between the specific facts of the case before the court and the law as it is promulgated by the legislator.

G. COLLECTIVE JUDGMENTS51

 

 

49 U.S. Const., Art. I, Sec. 9 “No title of

 

 

46 Ibid.

nobility shall be granted by the United

47 See generally, Reservations to the

States”

convention on the prevention and

50 U.S. Const., Art. III Sec. 3 “The Congress

punishment of the crime of genocide,

shall have Power to declare the Punishment

Advisory Opinion of 28 May 1951, ICJ

of Treason, but no Attainder of Treason

Reports (1951), p.15-58.

shall work Corruption of Blood” – no

48 E.g. U.S. Const., Art I. Sec. 9 (no federal

hereditary status as criminal. This was not so

ex post facto laws), Sec. 10 (no state ex post

in the USSR where SS officers children

facto laws).

would also be considered as enemies of the

 

 

state and subject to particular control.

 

 

51 On the rise and fall and rise of collective

 

 

responsability see George P. Fletcher, The

(2008) J. JURIS 46


 

 

 

 

 

 

 

 

 

 

 

 

THE JOURNAL JURISPRUDENCE


 

 

 

 

 

 

 

 

 

 

dominant classes would be held


Another

 

achievement

 

of

the

liable for exploitation of historically


bourgeois

 

revolutions

 

was

the

dominated classes and forced as a


replacement of

collective

judgment

class to pay reparations. At the same


by a strict principle of individual

time

however

the

socialist


accountability.

Rather

than

being

governments

would

not

impose


judged based on social class, i.e.

disabilities on the offspring of a


membership in the nobility, the

criminal.

 

 

 

 

 

 

 

 


bourgeoisie insisted on judgment of

 

 

 

 

 

 

 

 

 

 


individuals

 

as

individuals

and

VII. CONCLUSION

 

 

 

 

 

 


appropriate condemnation. Thus for

 

 

 

 

 

 

 

 

 

 


example

a

criminal’s

descendants

This essay has presented a structure


would not be judged for the crimes

for

decomposing

the

 

ambiguous


of their ascendant. 52 Again these

term law into determinable parts.


freedoms

were

however

generally

Law

is

a

term

with

a

several


negative, i.e. freedoms from the

competing meanings. Thus the term


state’s interference with the life

must

be

complemented

 

 

and


liberty or property of the individual.

contextualized. Natural law, positive


 

 

 

 

 

 

 

 

 

 

law, law as a prescription and law as


The

socialist

revolutions

partially

a description coerce the otherwise


reverted to or advocated a return to

ambiguous term into tractable forms.


collective

 

 

 

judgment

 

and

By distinguishing between law (lex)


accountability.53

Thus,

historically

and justice (ius) we are able to focus


 

 

 

 

 

 

 

 

 

 

on

different

aspects

of

 

 

both


Storrs Lectures: Liberals and Romantics at

 

 


command and right. Thus, unlike


War: The Problem of Collective Guilt, 111


Yale L.J. 1499, 1539 (2002).

 

 

 

 

Kelsen,54

I see the

fundamental


52 U.S. Const., Art. III Sec. 3 “The Congress

element of law not as hierarchically


shall have Power to declare the Punishment


ordered “norms”. Instead I see


of Treason, but no Attainder of Treason


shall work Corruption of Blood” – no

potentially

conflicting

 

conditional


hereditary status as criminal. This was not so

statements

 

with

 

 

contingent


in the

USSR

where SS officers children

 

 

 


would also be considered as enemies of the

enforcement

imperatives as

two


state and subject to particular control.

 

 

atoms of law. However those


53 Beate Sibylle Pfeil, Kollektivschuld und


Völkerrecht. Eine Initiative aus der

conditional

and

 

 

imperative


Parlamentarischen

Versammlung

des Europarats,

statements

are only

scholarly

law -


Europäisches

 

 

Journal

 

für


 

 

 

 

 

 

 

 

 

 

 

 

 


Minderheitenfragen, EJM 1, (2008), 73–77

 

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 


http://www.springerlink.com/content/485

54 Hans Kelsen, Théorie Générale du Droit


5501631j80704/

 

 

 

 

 

 

et de l'Etat Paris: Bruylant (1997) p. 166.

(2008) J. JURIS 47

ENGLE ON LAW: LEX VS. IUS

law in the books. They are theoretical predictions. To be considered “practical law” -- effective positive law --they must be enforced. This highlights the distinction between natural law, which is nothing more or less than the law of the strongest, and positive law, which is the arbitrary statements of a legislator. Hobbes was right to distinguish natural law from natural justice but was incorrect in seeing propositions of natural justice as conventional rather than natural. The mediation between force and morality is natural justice.

The first portion of this essay raised the concept of natural law and supplied the Aristotelian and Hobbesian definitions of that term. The second portion turned its attention to the relationship between law and justice. This paper is founded on the premise that there are indeed universal moral principles: thus, there can be a natural justice; however, it also takes the view that there is nonetheless no inevitable connection between natural law and natural justice – principles of natural justice are normative, not nomothetic. In analysing both law and justice the paper has revealed how dialectical reasoning allows us to speak with reasonable exactitude

of legal science. We thus apply historical materialism55 to understand the evolution of the relation between law and justice, to illustrate distinctions between corrective and distributive justice and to explain the changing relationship between natural law and natural justice as exchanged via alterations in the conception of the correct measure of distributive justice which must inevitably touch upon aspects of corrective justice.

How can differing societies have differing rules which nonetheless reflect a universal morality? While differing societies have different standards of justice those differences are functions of their mode of production which, due to technological advances, is constantly improving. Within a given mode of production however the moral standards of society are generally accepted and are intersubjective. They reflect the moral judgment and capacity of judgment of the society depending upon the society’s state of economic development. So the standards are universal in the sense









55

Josef

Stalin,

Dialectical

And

Historical

Materialism,

(1938)

From

Josef

Stalin,

Problems

of

Leninism,

Foreign Languages

Press,

Peking,

(1976).

Available at:

http://www.marx2mao.org/Stalin/DHM38.ht ml

(2008) J. JURIS 48

THE JOURNAL JURISPRUDENCE

that we cannot condemn a poor society for its poverty when there was no alternative to that poverty. At the same time that fact implies that an economically developed society will be held to higher standards than one which is less well off. In this sense, fundamental human rights are like a ratchet, ever moving forward. Even outside of the intersubjective sense, there are universal moral standards in that some standards, such as the prohibition of unlawful killing, are timeless and universal. Further, the moral principles of a society at one phase of development tend to survive its transition as it enters into its next developmental phase. Thus the sphere of protected conduct in fact expands with increasing economic well being consequent to progress in the mode of production of society. Universal moral principles do exist – but they are not inevitably or necessarily enforced. The naturalist theories of law, like the positivists, only have half of the answer to the question “what is the relation between law and justice”. Each should reexamine the other, preferably from the perspective of historical materialism, to understand its own flaws and the contributions that the other perspective might bring.

(2008) J. JURIS 49

ENGLE ON LAW: LEX VS. IUS

(2008) J. JURIS 50

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