This is the culmination of many, many hours of research, yet I am nearly and completely unsatisfied with it. I wrote this for the honors Philosophy 300 class (philosophical writing), and I presented it before the class last week. I hesitate to post this yet, because it is not remotely complete. First, I have a more thorough retort concerning the arguments I present against Natural Law than what I address herein. Second, many sections are inadequate and do not fully portray the idea intended. Third, I do not feel I adequately addressed how positivist law exists in Natural Law without existing as Positivism itself. Fourth, I do not fully address Kretzman's argument against positivist claims against the non-est-lex slogan. Fifth, I almost completely disagree with my conclusion. In reality, there is more than abundant evidence that illustrates whether the Church is more naturalist or positivist in its doctrine and policy -- I simply ran out of time before my deadline and I was lazy. When I get more time -- possibly in the next three years -- I will revisit it. I personally consider this a decent start in my life-long pursuit to find a logical, eternal, and spiritual understanding of the principles and philosophies of liberty.
I am open to any and all suggestions and arguments. Please comment, if you can actually make it through all of this.
-- Shiloh
Natural Law, Positivism, and Civil Disobedience: an Analysis of the Counsel Given by the General Authorities of the Church of Jesus Christ of Latter-day Saints.
Shall we be such fools as to be governed by [the government’s] laws, which are Unconstitutional? No! -- Joseph Smith (Teachings)
Introduction
Natural law theory has endured multiple revisions. From Aristotle’s natural justice to Dworkin’s theory of principles, natural law has born the criticism and evaluation of the greatest philosophical minds. What is natural law? There is no absolute definition. One definitive thread that has endured in various forms since Aristotle is the slogan of natural law: Lex Injusta Non Est Lex (an unjust law is not a law). In his paper, Lex Iniusta Non Est Lex, Norman Kertzmann explores the historical foundation of the natural law slogan to find its author. Kertzmann finds no absolute author, but he does find a way to solve the contradiction that critics say non-est-lex presents.
The slogan of natural law finds sharp critics among legal positivists. H. L. A. Hart, a champion of positivism, uses the non-est-lex slogan to show the paradox of arguing for something that exists but does not exist. Positivism’s adherence to scripted — or codified — law rejects natural law’s claim to non-est-lex. If, in the severity of injustice, a positivist must rebel against enacted law, that individual must follow certain criteria for changing it. In positivism, even civil disobedience must follow certain rules.
The difference between naturalism and positivism makes the issue of morality difficult to evaluate, especially for religious organizations. The Church of Jesus Christ of Latter-day Saints (the Church) has defined many of its own policies through interaction with natural and positivist laws. Many Church policies are naturalist, while others reflect positivist sentiments in exhorting its members in matters pertaining to government. While some counsel from the Church has appeared to support the non-est-lex slogan, other counsel is positivist.
This paper includes three sections: (1) natural law and positivism, (2) civil disobedience, and (3) religious requirements of non-est-lex. In this paper I will define natural law under a broad political application, and will contrast it with legal positivism. I will address how these two philosophies treat civil disobedience in regards to unjust laws. This paper presupposes a distinct definition and understanding of what is just and unjust and what is moral and immoral – although such distinctions I do not discuss in this paper. I will answer whether civil disobedience is possible in natural law, and address what conditions are required for civil disobedience in legal positivism. It is not my intent to question whether natural law is an adequate foundation for jurisprudence but to answer whether the individual has a legitimate non-est-lex claim under natural law. Furthermore, I will evaluate various arguments from the Church leaders concerning obedience to the law and possible justification for non-est-lex in regards to the Twelfth Article of Faith. Finally, I will conclude that an absolute distinction in Church doctrine between naturalism and positivism is impossible.
SECTION 1
What is Natural Law?
Natural law is a theory explaining how universal moral laws exist by nature – even if not initially perceived by human understanding. Naturalist philosophers have presented natural law differently. Most studies of natural law originate through Aristotle and Cicero; however, it was Aquinas’ arguments for natural law that were popularized and adopted by the Catholic Church. Aquinas categorized law into four types: (1) the eternal law (mind of God), (2) the divine law (the appearance of the eternal law to man), (3) the human law (man’s positive law), and (4) the natural law. Aquinas spoke of a natural moral law whereby all men are bound. This universal moral law, he argued, was perceivable through a divinely placed innate state of heightened reason. As such, Aquinas argued that man by reason could demonstrate the existence of God and of his moral code. Because of the heightened state of reason that God gave man, revelation was unnecessary to perceive this universal moral law.
Sir William Blackstone argued that natural law was the moral basis of all law – political or otherwise. Positivist law, or statutory law, existed as an extension of perceivable natural law. All statutes were to be extracted and enacted on principles of natural law. When social problems arise and there is no perceived natural law to resolve the issue, statutory law has full power to rule in the matter; however, when natural law is perceived, any violating statute dissolves as though it never existed.
What is Legal Positivism?
Legal positivism rejects natural law’s claim that there is a necessary moral basis for law, but asserts that laws are merely rules that man agrees to live by. John Austin coined the creed of positivism: “The existence of law is one thing; its merit or demerit is another” (Austin). H.L.A. Hart, an advocate of positivism, argued that laws restricting theft, violence, and deception are necessary for any legitimate social structure; furthermore, any such social structure must also have a system for recognizing and enforcing those rules. Hart argued that any legitimate social structure has primary and secondary rules. Primary rules are laws that enforce individual obligations and duties. Secondary rules clarify any ambiguous or confusing primary rules. There are three secondary rules that accomplish this: rules of recognition, rules of change, and rules of adjudication. The rules of recognition identify what primary rules are valid and give the primary rule authority and legitimacy. The rule of change allows new rules to reevaluate and take the place of old rules. The rules of adjudication define important legal concepts and give judges power to punish any violators of primary rules (Hart).
Positivism establishes legal legitimacy of government. Laws are rules that gain legitimacy through social recognition and obedience, through ability to change to social pressures, and through courts that interpret and render codified law. In Hart’s view, inalienable rights in natural law are, at best, ambiguous and, at worst, obsolete. Rights are granted by the government through the legal system, not through some individual claim to a higher moral authority. Because government’s legitimacy rests on society’s acceptance of scripted law, individual rights, in a sense, are at the whim of social approval.
Natural Law v. Positivism: Problems
Problems with Natural Law
There are several arguments against natural law. In fact, many legal philosophers completely dismiss natural law. In acknowledging the unpopularity of natural law theory, Ronald Dworkin, a natural law theorist, observes that “one label. . . is particularly dreaded: no one wants to be called a natural lawyer. [Natural law] seems metaphysical or at least vaguely religious. In any case it seems plainly wrong” (Dworkin 175). In this paper I present the two of the most common objections to natural law, and offer possible solutions. The first objection concerns its universality. Gary North illustrated the universality problem that natural law faces:
Natural law theorists have yet to come up with a solution to this inconvenient fact: reason, meaning the never-proven, always sought-for "right reason" of natural law theory, has not led masses of people to adopt the same system of philosophy, ethics, or religion. Yet the theory rests on the assumption -- never proven -- that rational people can agree on these issues sufficiently to enable society to function both ethically and predictably, meaning rationally (North).
While natural law has yet to give a universal solution to any particular problem, the universality argument is empty. The universality problem hinges on the assumption that all universal facts or truths are apparent or that they are already known and can be demonstrated. This is ridiculous. Because the mind of man has not created the tools necessary to demonstrate the universality a particular moral law, it does not follow that a universal moral law does not exist.
Natural law’s second major objection is its ambiguity. The moral centrist will blame the immorality of society for natural law’s inability to adequately define a universal moral ethic; however, this reeks of pompous self-appreciation and moral superiority. Natural law’s perceived ambiguity may stem from the universality objection. If nothing is physically or demonstrably universal, then universal moral law can be defined any way an individual or society sees fit. This argument may be the most convincing against natural law, especially in arguing against natural law within the political spectrum. Hart is right concerning ambiguous laws: The law, to be law, necessarily communicates what is required (Hart 92). Ambiguity is the death of any law – universal or otherwise.
In answer to natural law’s perceived ambiguity, I offer no solutions. I propose, however, that until the universality of natural law can be shown, that natural law as an acting force remain as a standard for individual morality – a type of categorical imperative.
Problems with Positivism
Dworkin offers a famous critique of legal positivism in his response to H.L.A Hart’s paper, The Concept of Law. In Taking Rights Seriously, Dworkin lists three points of positivism that he claims are its primary tenants: (1) Laws are rules of the community that are legitimized by their pedigree, and not by their [moral] content; (2) Each law, when ambiguous, non-existent, or seemingly not applicable to a specific case, is given to the ruling discretion of the judge; and (3) that each individual is legally obligated in a way that requires the individual to act or be acted upon by society (“Taking”).
The first of these points addresses the necessary mechanism needed to establish legitimacy in government. While Dworkin believed a social moral principle was the best legitimate foundation for law, Hart’s positivist view establishes legitimacy in law and government through a previously chosen and socially accepted legal system. Laws are rules that gain legitimacy through social recognition and obedience, through ability to change to social pressures, and through courts that can render and interpret primary rules when needed.
Dworkin’s second criticism of positivism attacks the positivist law itself. Even the finest and most intricately designed laws can be interpreted in various ways. Relying solely on scripted law is fool-hardy, especially when the foundation of government has rejected any moral compass to guide the ship-of-state through times when the law is ambiguous. Positivists offer no real solution to this critique except to lambast natural law for the same inherent problem of ambiguity.
The concluding argument against positivism rests in the individual’s legal obligation to society at large. Legal positivism requires the individual to follow certain rules and adopt certain behaviors within society. While the natural law can exist when it is not perceived, positivist law must be codified and publically known. Positivism requires absolute obedience to codified law. The moment society fails to recognize scripted laws, government loses legitimacy. This is why strict obedience to the law is so necessary within positivism, even if the laws are unjust. Furthermore, positivism defines what is socially acceptable but rejects any fundamental principle or moral behind the law. Dworkin argued for a principle behind legal actions, while Hart argued for a rule that reflected the social acceptance of the people; ironically, the result and public manifestations of these two competing philosophies are nearly identical.
SECTION 2
What is Civil Disobedience?
Is there a moral obligation to obey every law, or are we only required to obey some laws? There are many cases for civil disobedience, but to understand these we have to define what civil disobedience is. John Rawls defines civil disobedience as “a public nonviolent, and conscientious act contrary to law usually done with the intent to bring about a change in policies or laws to the government” (Rawls 250). Civil disobedience requires conscious action to change public policy or law. We will first speak of civil disobedience within legal positivism, and then see if civil disobedience is compatible with non-est-lex.
Legal Positivism
Positivism requires absolute submission to scripted law. Unlike natural law, positivism does not concern itself with what is right or wrong, moral or immoral, just or unjust, but only with what society will accept or not accept. This is not to say that society is necessarily amoral, but that the basis of scripted law is a reflection of what is socially acceptable. However, primary and secondary rules occasionally fail to provide just laws. In these rare cases, civil disobedience is justified; however, there are necessary steps to follow and objectives to achieve.
In A Theory of Justice, John Rawls outlines positivism’s requirements for civil disobedience. First, civil disobedience is consciousness of the act. Second, civil disobedience must be political. This is accomplished in three ways: justification, audience, and goal. The individual justifies his actions of for civil disobedience through changing society’s attitude toward an unjust law. Furthermore, this is only accomplished if the act of civil disobedience has a public audience. No justifiable civil disobedience is performed in secret. Finally, in awakening the moral sense of the people, the individual must remain strictly non-violent (Rawls).
Natural Law
Naturalism follows a different course than positivism. Whereas civil disobedience is possible in positivism, it has no place in natural law. The slogan of natural law, lex iniusta non est lex (an unjust law is not a law), is a source of debate between positivists and naturalists. Three of positivism’s greatest defenders – Austin, Benthem, and Hart – ridiculed the non-est-lex slogan for the contradiction of saying something exists that does not: “For an unjust law is obviously a law – it is simply an unjust one” (Russell 435).
Norman Kretzmann, a naturalist, defended the non-est-lex slogan against positivist naysayers. Kretzmann showed both evaluative and non-evaluative inclusion conditions. This means that an
“unjust law may be a law in a merely technical sense, in virtue of meeting certain –non-evaluative inclusion conditions that are required for its promulgation as a law, but it may still fail to be a genuine instance of a law if it fails to meet certain evaluative inclusion conditions that are required of any genuine law” (Russell 436-7).
To a naturalist, ‘civil disobedience’ does not exist. The instant a statute fails to include all necessary metaphysical conditions of justice, the unjust law ceases to exist. There is no ‘disobedience’ to an unjust law, because an unjust law is not a law. Furthermore, it is nonsensical to a naturalist to see an individual act in ‘compliance’ with a law that does not exist, especially when that individual acts in violation of his own justice.
The positivist finds necessity in making his civil disobedience public, but the naturalist has no such prerogative. While the positivist seeks to correct a form of injustice, the naturalist – in perceiving no unjust law – can only see the ignorance of an individual who will work against his own justice by following a law that does not exist.
Positivism holds an intrinsically pessimistic view of society. Positivism presupposes that law is built on the assumption that society’s natural state is chaos. Codified law is the adhesive that binds a social structure together. However, natural law is inherently optimistic in its view of society, and builds on the assumption that society’s natural state is order – not chaos. While positivism looks on the non-est-lex slogan as the ultimate tool of social destruction by allowing the individual and masses to become a ‘law unto themelves,’ the naturalist appeals to non-est-lex as the building block of order and justice by creating a free-market of law and justice.
Allowing non-est-lex within society will not prove society’s destruction; neither will it result in anarchy like the positivists say. Opponents to non-est-lex claim that it creates an arbitrary standard where every individual has the ability of doing whatever they please, but this is not so. Natural law is a universal code and standard. The Declaration of Independence promoted three inherent naturalist rights: life, liberty, and the pursuit of happiness. Under natural law, any violation of inherent rights is punished accordingly. There is no freedom in natural law to perform an unjust act. Only through injustice does a man become a law unto himself, and in his moment of injustice he loses his protection of the natural law.
SECTION 3
The Twelfth Article of Faith
We believe in being subject to kings, presidents, rulers, and magistrates, in obeying honoring, and sustaining the law.
The Twelfth Article of Faith is a Church standard regarding the members’ obligation to be subject to the laws of the country they reside in and to submit to their leaders. Many interpret this Article of Faith to mean absolute compliance to all laws enacted within a political mechanism, while others have used this article to justify a higher principle of justice and morality.
Questions arise concerning whether the Twelfth Article of Faith gives any room for a non-est-lex philosophy or for civil disobedience. If the Twelfth Article of Faith offers room for these, how so and what are their limits?
Positivist Interpretation
The positivist’s claim on the Twelfth Article of Faith calls for absolute obedience to all laws enacted by the political leadership. Disobedience to enacted laws is a strict violation of this Article. Unjust laws are legally repealed by the legislature. Unjust laws are not merely dismissed by an individual who disagrees with the enacted law. This interpretation is justified in light of the Doctrine and Covenants (D&C) 58:21-2: “Let no man break the laws of the land, for he that keepeth the laws of God hath no need to break the laws of the land. Wherefore, be subject to the powers that be. . .” This appears to contradict the naturalists’ slogan that an unjust law is not law at all. Positivists believe that members of the Church are commanded to obey the laws enacted their by government (laws of the land), and that in obeying the law of the land (even an unjust law) they will not break the laws of God – or a higher moral law.
An analogy used by positivists to interpret D&C 58: 21-2 is that of a soldier who obeys an order to kill in a time of war. Leaders of the Church have declared that soldiers are not morally accountable for following orders to kill their enemies in a time of war, but that the accountability of an unjust command falls on the leader(s) who gave the order. As President Gordon B. Hinckley stated, “God will not hold men and women in uniform responsible as agents of their government in carrying forward that which they are legally obligated to do” (Hinckley 80). Positivists argue that the citizen – like the active soldier – has immunity for following an unjust order (law) legislated by his government. The individual’s accountability is to obey the scripted law, and it is the legislator accountability to enact just laws. The important thing is for the citizen to be honest and obedient to all established laws – good and bad – until the time comes when an unjust law can be changed legitimately through the political mechanism of government. At this time, the citizen becomes responsible for acting in such a way as to change the unjust law. Until then, the individual is justified in obeying an unjust law. In this strict obedience to the law, even an unjust law, the positivist finds himself obedient to the Twelfth Article of Faith and the laws of God.
Naturalist Interpretation
Natural law has a different view of the Twelfth Article of Faith. To the naturalist, D&C 58:21-2 is qualified in D&C 134:5: “We believe that all men are bound to sustain and uphold the respective governments in which they reside, while protected in their inherent and inalienable rights by the laws of such governments; and that sedition and rebellion are unbecoming every citizen thus protected. . .” (emphasis added). While the naturalist recognizes the need to obey the law of the land and to be subject to the powers that be, he still recognizes that sedition and rebellion have their place when a government no longer protects the inherent and inalienable rights of the people. Furthermore, the naturalist must qualify and differentiate between a just and an unjust law. The naturalist member is concerned with differentiating between the two forms of law that represent just and unjust laws in D&C 98: the law of the land and the law of man.
And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me. . .
And as pertaining to law of man, whatsoever is more or less than this, cometh of evil. . .
And I give unto you a commandment, that ye shall forsake all evil and cleave unto all good, that ye shall live by every word which proceedeth forth out of the mouth of God. (D&C 98:4-7, 10-1)
The naturalist further recognizes that the law of the land is conditional and based on the constitutionality of law that promotes the rights and privileges of all mankind. Anything more or less than that which promotes the rights and privileges of all mankind is the law of man and is evil. It is within the law of man that the naturalist finds unjust law. Furthermore, the command given by God, the ultimate principle giver, is to forsake all evil – even the law of man! This reading of D&C 98 is in line with Aquinas’ first principle of natural law: good is to be done and pursued, and evil avoided (Aquinas q94, a2, p. 47). The naturalist, in this sense, is obligated to avoid all evil – even if it is scripted law – if the enacted law violates the rights and privileges of all mankind. President Joseph F. Smith clarified this concept when he said,
“It seems to me that this makes this matter so clear that it is not possible for any man who professes to be a member of the Church of Jesus Christ of Latter-day Saints to make any mistake, or to be in doubt as to the course he should pursue under the command of God in relation to the observance of the laws of the land. [God] will hold [lawmakers] responsible if they will pass unconstitutional measures and frame unjust and proscriptive laws. . . If lawmakers have a mind to violate their oath, break their covenants and their faith with the people, and depart from the provisions of the constitution, where is the law, human or divine, which binds me, as an individual, to outwardly and openly proclaim my acceptance of their acts?” (Gospel 406)
Both the naturalist and positivist believe that lawmakers are accountable for passing unjust and proscriptive laws; however, these competing theories vary in regards to the level of accountability ascribed to the individual when confronted with an unjust law. The positivist must maintain strict adherence to the law (leaving sole accountability to the lawmaker for passing unjust legislation, until the time comes when the individual may affect legislative change), but the naturalist takes upon himself a portion of accountability in how he responds to an unjust law. The naturalist will remain subject to kings, presidents, rulers, and magistrates, and he will obey, honor, and sustain the law by only adhering to just laws that promote the freedom and liberty of all people. This appears to be in line with President John Taylor’s interpretation of D&C 98: 4-6.
“Taking this nation as an example, all laws that are proper and correct, and all obligations entered into which are not violative of the Constitution should be kept inviolate. But if they are violative of the Constitution, then the compact between the rulers and the ruled is broken and the obligation ceases to be binding. Just as a person agreeing to purchase anything and to pay a certain amount for it, if he receives the article bargained for, and does not pay its price, he violates his contract; but if he dos not receive the article he is not required to pay for it” (Taylor).
This reading of President John Taylor carries the natural law slogan: an unjust law is not a law. If a codified law violates the purpose of the Constitution, then there is no obligation to obey – the obligation ceases to be binding. However, President Taylor, in keeping true with natural law principles, gives that all laws that do maintain the rights and privileges of all mankind must be followed. This reading is consistent throughout every passage of the Doctrine and Covenants presented in this paper.
Conclusion
The natural law and positivist philosophies may never come to terms. The philosophical battle concerning the direction of government and the legitimacy of law may never achieve a resolution. Natural law and positivism are polarized, and each rejects the other’s premise. The bi-conditional relationship of the individual to society is hotly contested. Does the individual have the ability to protest? While positivism gives stipulations for civil disobedience, natural law rejects the law outright as though it does not exist. Civil disobedience is impossible in natural law, because there is no disobedience to a law that does not exist.
The Church of Jesus Christ of Latter-day Saints maintains political neutrality; however, the membership of the Church is often polarized. Whether the Church leadership intentionally presents doctrine in a naturalist or positivist way, the membership is quick to interpret it as such. The same latter-day scriptures and prophetic counsel are interpreted in two different ways. Therefore, it is indeterminable whether Church doctrine absolutely supports one theory or another.
Works Cited
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---. Taking rights seriously. Cambridge: Harvard UP, 1977. Print.
Gospel Doctrine Sermons & Writings of Joseph F. Smith. New York: Deseret Books, 1999. Print.
Hart, H.L.A. The Concept of Law. Oxford: Clarendon, 1961. Print.
Hinckley, Gordon B. "War and Peace." Ensign May 2003: 78-81. Print.
Rawls, John,. Theory of Justice. S. l. b Harvard University Press c 09/1999: Belknap of Harvard UP, 1999. Print.
North, Gary. "History: European -- Natural Law Theory." Gary North -- Specific Answers. 2007. Web. 13 Nov. 2009.
Russell, J.S. "Trial by Slogan: Natural Law and Lex Iniusta Non Est Lex." Law and Philosophy 4th ser. 19.July (2000): 433-49. Print.
Taylor, John. Journal of Discourse. Vol. 26. 1884: 350. Print.
