REASON, THE SOUL OF THE LAW

HAYLEY COHEN

ABSTRACT: Asking whether laws that lack rationality are in fact laws leads one to then ask: What is law and why do citizens generally obey them? To answer these important philosophical questions, this paper will outline the competing views of natural law theorists and legal positivists about what makes law legitimate. It will then expand upon natural rights and their place in contemporary legal thought.

I Introduction

Natural law theorists argue that laws are rational when they conform with fundamental moral principles.214 These principles are universal, based on human nature and can be discovered through human’s capacity to reason.215 Natural law is considered to be a ‘higher law.’216 If laws violate natural law, they are deemed void. They may look like laws but have no legal status.217 Saint Augustine said, ‘an unjust law is not a law.’218 In contrast, legal positivists are not concerned about whether laws have merit.219 What makes laws rational and valid is when they are ‘posited’ (duly enacted and applied by established authority).220 Legal positivists say, ‘law is law.’221 The schism between the two theories of jurisprudence was never so pronounced than in their treatment of the iniquitous laws perpetrated under National Socialism. After witnessing the horrors of World War II, German legal positivist Gustav Radbruch changed his beliefs about the law. He saw how easy it was for the Nazi regime to exploit subservience to the law and the lack of resistance from German judges against great injustice. Radburch concluded that positivism and its law-is-law formalism played a powerful role in the atrocities.222 It allowed the abuse of basic rights to be rationalised and legitimatised.223

Ii Natural Law And Legal Positivism

Radburch’s observations led him to the theory that fundamental principles of morality cannot be separated from legality. A statute, no matter how clearly expressed or how well it conformed with formalities, would be invalid if it was unjust. To resolve the conflict between justice and legal certainty, Radburch held that not all unjust laws are invalid— only the most inhumane.224

214 Randy Barnett, ‘Getting Normative: The Role of Natural Rights in Constitutional Adjudication’ (1995) 12(1) Constitutional Commentary 93, 106 (‘Barnett’); John Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011) 356 (‘Finnis’).

215 Sidney Jaffe, ‘Natural Law and the Nuremberg Trials’ (1946) 26(1) Nebraska Law Review 90, 91; 'Natural Law for Today's Lawyer' (1957) 9(3) Stanford Law Review 455, 467 (‘Natural Law for Today’s Lawyer’); Jonathan Crowe, 'Is Natural Law Timeless?' (2021) 33 Bond Law Review 1, 2, 5 (‘Crowe’).

216 ‘Natural Law for Today’s Lawyer’ (n 2) 484.

217 Rodger Citron, ‘The Nuremberg Trials and American Jurisprudence: The Decline of Legal Realism and the Revival of Natural Law’ (2006) 2(1) Michigan State Law Review 139, 139 (‘Citron’); Suri Ratnapala, Jurisprudence (Cambridge University Press, 3rd ed, 2017) 163 (‘Ratnapala’).

218 Finnis (n 1) 363; Edward Corwin, ‘Debt of American Constitutional Law to Natural Law Concepts’ (1950) 25(2) Notre Dame Lawyer 258, 259; Santiago Legarre, ‘A New Natural Law Reading of the Constitution’ (2018) 78 Louisiana Law Review 877, 890 (‘Legarre’).

219 John Austin, The Province of Jurisprudence Determined (Cambridge University Press, 1995) 157.

220 Ratnapala (n 4) 30; ‘Natural Law for Today's Lawyer’ (n 2) 471.

221 Gustav Radbruch, Statutory Non-Law and Supra-statutory Law, Bonnie Litschewski Paulson and Stanley Paulson (2006) 26(1) Oxford Journal of Legal Studies 1, 1 (‘Radbruch’); Herbert Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71(4) Harvard Law Review 593, 618 (‘Hart’); Lon Fuller, ‘Positivism and Fidelity to Law — A Reply to Professor Hart’ (1957) 71(4) Harvard Law Review 630, 660 (‘Fuller’); Hans Kelsen, ‘The Pure Theory of Law of Law Pt II’ (1935) 51 Law Quarterly Review 1, 17 [29].

222 Radbruch (n 8) 9; Hart (n 8) 617.

223 Kenny Yang, ‘The Rise of Legal Positivism in Germany: A Preclude to Nazi Arbitrariness’ (2012) 3 The Western Australian Jurist 245, 250, 257 (‘Yang’).

The Radburch doctrine influenced many of the findings in the post-war courts, including the Nuremberg trials. In the Grudge Informer Case, a woman who wanted to get rid of her husband reported him to the Gestapo for vitriolic remarks he made about Hitler knowing that he would be sentenced to death under Nazi law. The husband was not executed but sent to the battlefront instead. After the war, he began proceedings against his wife for the offence of depriving him of his right to liberty.225

The informer claimed she acted under the law that was in force at the time and, therefore, had committed no crime. The court invalidated the Nazi laws that the informer relied on describing them as ‘contrary to the sound conscience and sense of justice of all decent human beings.’226

The Radburch doctrine sparked the famous exchange between Herbert Hart and Lon Fuller. Hart criticised the Radburch doctrine for erroneously conflating legal duty with moral duty. While a person may be under a legal duty to obey an unjust law, they may have a prevailing moral duty to defy it. Hart believed the informer should not have been found guilty since her actions violated morality, not law.227

Rather than declaring the Nazi laws void, Hart proposed enacting a retrospective statute to punish the informer.228 Hart believed a retrospective statute had the value of clarity.229 On the other hand, a duly enacted statute rendered void because it was immoral would cause uncertainty. Hart argued ‘what law ought to be’ is dependent upon subjective interpretation and ‘encourage[s] the romantic optimism that all the values we cherish ultimately fit into a single system.’230

Hart further challenges the legitimacy of law based on ‘what ought to be’ standards by arguing that immoral aims can be just as rational as moral ones. He uses the analogy of a poisoner rationalising that they ‘ought to’ give their victim a second dose to effectively carry out their objective.231

Fuller defends the post-war decisions and the Radburch doctrine. He answers Hart’s assertion that immoral aims can be as rational as moral ones by saying that ‘coherence and goodness have more affinity than coherence and evil.’232 He points out how absurd the common law would be if precedents were built upon the ‘perfect realisation of iniquity.’233 Fuller also observes how a retrospective statute that renders a once valid law void, and the belief that ‘this is law but too iniquitous to be obeyed,’ are essentially the same as saying, ‘an unjust law is not a law.’234

224 Radbruch (n 8) 7; Hart (n 8) 617; Ratnapala (n 4) 207-8; Heather Leawoods, ‘Gustav Radbruch: An Extraordinary Legal Philosopher’ (2000) 2(1) Washington University Journal of Law and Policy 489, 500.

225 Citron (n 4) 208; Fuller (n 8) 649; Hart (n 8) 618-19.

226 Ibid 147.

227 Hart (n 8) 616-7.

228 Ibid 619; Ratnapala (n 4) 208; Citron (n 4)147-8.

229 Hart (n 8) 598.

230 Ibid 620.

231 Ibid 613.

232 Fuller (n 8) 636.

Fuller discusses the ‘inner morality of law’. He argues how the legal system under Nazi rule was so corrupt and perverted that it ceased to make law.235 For example, the Nazi regime destroyed the rule of law through secret laws, ad hoc decrees, ad hominem legislation, retrospective statutes, punishment without trial for legal acts, disregard of laws that were inconvenient to officials and the practice of state thuggery.236 With the Grudge Informer Case, Fuller argued that one of the statutes cited was interpreted too broadly and the other was a ‘legislative monstrosity’ that allowed ‘uncontrolled administrative discretion.’237

Fuller’s argument that laws corrosive to the rule of law should be found void is sound. For example, a legal positivist would regard a secret law duly enacted as legitimate. If people do not know what the law is or are unable to follow its rules, how can humans flourish?238 There would be no predictability in such a legal system and people will not know how to conduct themselves in the future to avoid sanctions.239 Natural law, however, suffers from the same problem. So-called universal notions of objective morality, human nature and reason have become watered down in modern pluralistic societies. To prevent value judgments from jeopardising legal certainty, natural law should cast itself in statutory form.240

With that said, when positive law is so positively evil, individuals have a duty to disobey the law.241 Natural law with its higher standards of justice and morality offers ‘the tools to resist arbitrariness’.242 If these higher standards were applied to Nazi laws, ‘perhaps it would have allowed the Germans to see what the Nazis truly were— a criminal gang.’243

Iii Letter And The Spirit Of The Law

Natural rights are implied in natural law theory. However, Enlightenment philosophers give them special significance. ‘Natural rights’ is the idea that humans are endowed with certain inalienable rights that exist independently of any positive law.244 Whereas natural law emphasised duties, natural rights are about individual entitlements.245 The primary purpose of natural rights is to protect individuals from one other and overreaching governments.246

233 Ibid 636.

234 Ibid 210.

235 Ibid 660.

236 Ibid 651-2; Ratnapala (n 4) 212.

237 Fuller (n 8) 654; Citron (n 4)148.

238 Case of the College of Physicians (1609) 77 ER 638, 652; William Blackstone, Commentaries on the Laws of England (1st ed, 1765) 91 (‘Blackstone’).

239 Anthony D’Amato, ‘On the Connection Between Law and Justice’ (2011) 2 Faculty Working Papers 1, 6 (‘D’Amato’).

240 Legarre (n 5) 888-9; Radbruch (n 8) 7.

241 Yang (n 10) 254; Gabriel Moens, ‘The German Borderguard Cases: Natural Law and the Duty to Disobey Immoral Laws’ in Suri Ratnapala and Gabriel Moens (eds), Jurisprudence of Liberty (Butterworths, 1996) 147.

242 Yang (n 10) 256-7.

243 Ibid 257.

244 Blackstone (n 25) 124; John Locke, Two Treatises of Government (Project Gutenberg, 2003) s 89 (‘Locke’); Justice Spiegelman, ‘The Common Law Bill of Rights’ (McPherson Lectures Statutory Interpretation and Human Rights, University of Queensland, 10 March 2008) 8 (‘Spiegelman’).

John Locke in Two Treatises of Government claimed that when humans lived in a ‘state of nature’ (without civil society and government) they were ‘free, equal and independent.’ 247 Nevertheless, they agreed to enter into governed society and surrender some rights (namely, the right to exercise executive and judicial power) in exchange for the protection of their ‘life, liberty and property’ against outsiders (‘the social contract’).248 The protection of these rights was achieved by positive laws and the establishment of an impartial judiciary that can adjudicate disputes and redress wrongs.249 Under the social contract, the people’s obligation to obey the government is conditional upon the protection of natural rights.250

William Blackstone in Commentaries of Law said: ‘No human legislature has power to abridge or destroy [natural rights].’ In the New Commentaries, Henry Stephen modified Blackstone’s statement to: ‘No human legislature can justifiably abridge or destroy them.’ Moreover, Blackstone’s assertion that ‘the principle aim of society is to protect individuals in the enjoyment of absolute rights, which were vested in them by the immutable laws of nature’ is nowhere to be found in the New Commentaries 251 Notwithstanding the above, Spiegelman J says that this is not to say natural rights no longer contributes to the ongoing development of the common law. He does concede, however, that the focus has shifted from ‘natural rights’ to ‘human rights.’252 For example, natural rights have become the philosophical source of national253 and international254 human rights law.

Natural rights are factored into the common law through statutory interpretation. In Australia, the principle of legality is where the courts presume Parliament to have not intended to interfere with fundamental rights in the absence of clear contrary language.255 Fundamental rights include rights to property, 256 personal liberty,257 freedom of movement,258 freedom of speech259 and natural justice.260

245 ‘Locke’s Political Philosophy’, Standford Encyclopedia of Philosophy (Web Page, 9 November 2005) < https://plato.stanford.edu/entries/locke-political/>.

246 Barnett (n 1) 108-9; Ratnapala (n 4) 203.

247 Locke (n 31) ss 2, 4-6, 95.

248 Ibid ss 95, 123.

249 Ibid ss 89-90; D’Amato (n 26) 9.

250 Locke (n 31) s 95.

251 Spiegelman (n 31) 8.

252 Ibid 8-9.

253 Declaration of the Rights of Man and of the Citizen 1789 (France); Declaration of Independence 1776 (US).

254 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).

255 Coco v The Queen (1994) 179 CLR 427, 437; Bruce Chen, The Principle of Legality: Protecting Statutory Rights from Statutory Infringement? (2019) 41(1) Sydney Law Review 73, 73.

256 Clissold v Perry (1904) 1 CLR 363, 373; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, 682-3; Clunies-Ross v Commonwealth (1984) 155 CLR 193, 199-200.

257 R v Bolton; Ex parte Beane (1987) 162 CLR 514, 520, 523, 532; Al-Kateb v Godwin (2004) 219 CLR 562 [149]-[50]; Uittenbosch v Chief Executive, Department of Corrective Services [2006] 1 Qd R 564 [7], [12]-[8].

258 Commonwealth v Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457, 464; Melbourne Corporation v Barry (1922) 31 CLR 174, 206.

259 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 31; R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 125-7, 130.

260 Commissioner of Police v Tanos (1958) 98 CLR 383, 395-6; Annetts v McCann (1990) 170 CLR 596, 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575-6.

In Australia, the general approach to statutory interpretation over the last few decades has been contextualism and purposivism. Meantime, in the United States, there has been a resurgence of the textualist theory.261 This year, the Supreme Court in Dobbs v Jackson Women’s Health Organisation262 reviewed Mississippi's Gestational Age Act. The majority overruled Roe v Wade263 and Planned Parenthood v Casey264 to find that the United States Constitution does not confer an implied right to abortion. The majority took a positivist legal and textualist perspective when interpreting the Constitution. For example, the words ‘due process’ in the Fourteenth Amendment Due Process Clause meant that it did not confer any substantive rights to life, liberty or property.265

Since the Constitution did not expressly refer to abortion, the court left the decision of whether abortion should be banned or not to the state legislature.266 The dissenters criticised the decision as allowing the government the power to ‘control a woman’s body’ and ‘determine what a woman’s future would be.’267

The question then arises: should an assurance that the law has not infringed natural rights be a necessary condition of the legitimacy of the law-making process?268 Randy Barnett argues that if laws are to carry normative weight, then those who produce the laws must ensure quality mechanisms are in place to justify this presumption.269 One such mechanism is constitutional adjudication that takes natural rights into account when reviewing legislation.270 If the Constitution does not provide effective protection of rights, then the lawful commands of government will only be obeyed to avoid punishment (law will become a ‘gunman writ at large’).271

The Ninth Amendment has also drawn a divide between constitutional scholars. The amendment provides that specific rights enumerated in the Bill of Rights are not exhaustive.272 Originalists assert that the amendment is not a source of rights and must be paired with another amendment within the Constitution. Moreover, since it is part of the Bill of Rights, it can only review federal legislation.273

Barnett argues that if originalists are right that it was not the intention of the framers for all levels of government to protect unenumerated natural rights, they have ‘won the constitutional battle, yet lost the legitimacy war.’ He argues that if governments pay no respect to natural rights when they enact and review legislation, its citizens will naturally be under no obligation to respect their laws.274 As Locke would say, the social contract is voidable due to a breach of an essential term.275

261 Spiegelman (n 31) 9.

262 597 US 19-1392 (2022) (‘Dobbs’).

263 410 US 113 (1973).

264 505 US 833 (1992).

265 United States Constitution amend XIV; Dobbs (n 49) 2 (Thomas J).

266 Dobbs (n 49) 2 (Kavanaugh J); Randy Barnett, ‘The Intersection of Natural Rights and Positive Constitutional Law (1993) 25(1) Connecticut Law Review 853, 860.

267 Dobbs (n 49) 1 (Breyer, Sotomayor, Kagan JJ).

268 Barnett (n 1) 105-6.

269 Ibid 104-5.

270 Ibid 97, 112.

271 Ibid 110; Ratnapala (n 4) 211; Hart (n 8) 603.

272 United States Constitution amend IX.

273 Earl Maltz. ‘Unenumerated Rights and Originalist Methodology: A Comment on the Ninth Amendment Symposium’ (1988) 64(3) Chicago-Kent Law Review 981, 982.

If governments are to take natural rights into account in the law-making process, the next hurdle is—what rights constitute natural rights? The Second Amendment has been interpreted by the majority Supreme Court in District of Columbia v Heller as the right to own firearms in furtherance of the right to self-defence. The majority reaffirms United States v Cruikshank that the right to own firearms is a pre-existing natural right.276

Literature both supports and challenges the theory that the right to own firearms is a natural right. Locke’s Two Treatises is often used by both camps to support their claims. The right to bear arms for individual self-defence is never mentioned in the Two Treatises 277 Locke does say, however, that there was a broad right to use force for self-preservation when individuals lived in a state of nature.278 Gun control advocates argue that this right is not inalienable. The whole reason why people entered into the social contract was to gain protection from the law against the threat of outsiders.279 It was the uncontrolled use of force and the partiality of private punishment that made the state of nature insufferable.280

For argument’s sake, say owning a firearm is a natural right, then this right should be abolished by virtue of being obsolete in modern society. Change and evolution are natural phenomena for humans and the natural world. Therefore, natural law should be viewed as a continually evolving activity.281 This idea is contrary to the view held by new natural law theorists (such as Germain Grisez and John Finnis) in which natural law is timeless and immutable.282 However, Thomas Aquinas recognises that changes in the social environment can change natural law.283

The Second Amendment was created a few years after the American Revolution and fear of outsiders was still very much scarred on the American psyche. Importantly, the United States was a new country that could not afford an army. The purpose of the amendment was to allow men easy access to weapons in case they were needed to serve in the militia.284 However, times have since changed. With one of the most powerful armies in the world, a collective (as opposed to an individual) right to bear arms is a far more logical interpretation.

Guns rights advocate David Kopel claims that ‘the natural right of resistance and selfpreservation is necessarily effectuated by the right of having and using arms for self- preservation and defence.’285 To support his argument, Kopel says: ‘A right of self-defence without a right to at least some defensive arms would be a right of little practical utility. It is arms—especially, firearms—which allow a weaker person to defend herself against a stronger attacker or group of attackers.’286

274 Barnett (n 1) 111; Locke (n 31) s 222.

275 Locke (n 31) s 95.

276 David Kopel, ‘The Natural Right of Self-Defence: Heller’s Lesson for the World’ (2009) 59(30) Syracuse Law Review 999, 999-1000 (‘Kopel’).

277 Steven Heyman, ‘Natural Rights and the Second Amendment’ (2000) 76(1) Chicago-Kent Law Review 237, 241 (‘Heyman’).

278 Locke (n 31) ss 16-19.

279 Heyman (n 64) 241-2.

280 Ibid 242; Locke (n 31) ss 13, 13, 20-1, 90, 125, 132-7; Mark Tunick, ‘John Locke and the Right to Bear Arms’ (2014) 25(1) History of Political Thought 50, 69.

281 Crowe (n 2) 2-3; Ratnapala (n 4) 177, 187, 212.

282 Crowe (n 2) 2.

283 Ibid 6.

284 ‘Transcript: Interview with Supreme Court Justice Ruth Bader Ginsburg’, The Takeway (Web Page, 16 September 2013) <https://www.wnycstudios.org/podcasts/takeaway/segments/transcript-interview-justice-ruth-bader-ginsburg>.

Kopel’s reasoning is flawed. What stops thieves from arming themselves in case they need to self-defend? Moreover, one armed person defending themselves against a group of armed attackers does not equalise the power imbalance. One weak person with a firearm, however, can cause mass devastation. This year, there have been over 600 mass shootings in the United States.287 The critical point is that it is a lot easier to kill and be killed with firearms. I argue that ‘the natural right of resistance and preservation of life is necessarily effectuated upon the banning of the private use of arms.’288 However, that is not to say the underlining fundamental principle of self-defence must change— only its details.289

Iv Conclusion

Rational laws are positive laws. If individuals pick and choose what law to follow according to their own conceptions of what is just and right, society would never have left the state of nature. That is not to say justice, morality and natural rights are unimportant. The whole purpose of having laws is to benefit humankind. When the government and its people completely lose sight of that — now, what reason do we have?

285 Kopel (n 63) 1015.

286 Ibid.

287 Julia Mueller, ‘US Passes 600 Mass Shootings for Third Straight Year’, The Hill (Web Page, 24 November 2022) < https://thehill.com/blogs/blog-briefing-room/3749222-us-passes-600-mass-shootings-for-third-straight-year/>; Janie Boschma, ‘Mass Shootings in the US: 2022 Could Be the Second Highest Year’, CNN (Web Page, 23 November 2022) < https://edition.cnn.com/2022/11/23/us/2022-mass-shootings-tracking-second-highest/index.html>.

288 Kopel (n 63) 1015.

289 Crowe (n 2) 6.