Can we understand the law in a non-philosophical manner? Can the jurist afford to disdain questions of philosophy? We must have consensus in certain disciplines, and the positive law is one of them—but what grounds this consensus? Must we have a philosophical theory of the natural law? Can law truly be itself without a relation to philosophical analyses?
From Yves Simon’s Tradition of Natural Law, p.63-66:
Let us recognize that the question of natural law is itself philosophical. Further, it is related in the most inescapable way to profound issues of theoretical philosophy. Thus, the difficulties proper to philosophy are inescapably present in any discussion involving natural law. From this it follows that whenever there is a good reason to avoid these difficulties, there will also be a good reason to leave natural law out of the picture, whether by denying that it exists or by acting as if its existence did not matter.
In the present connection, the difficulties “proper to philosophy” pertain principally or mostly to the problem of communication, community in assent, consensus. Let the fundamentals of this issue be briefly stated. Wherever there is demonstration there is an absolutely firm ground for unanimous assent. An axiomatic propositions is necessarily assented to by any mind that understands it, and a demonstrated proposition necessitates the assent of any mind that considers it under the power of the demonstrating premises. But in this world of contingent occurrences there is an indeterminate discrepancy between the really normal and the factual, between that which would happen if essential necessities had their own way and what happens factually.* The popular belief—shared by a great variety of philosophical thinkers—that a genuinely demonstrated proposition necessarily entails factual consensus, and that failure to cause consensus is perfect evidence of failure to attain demonstrativeness, ignores the unpleasant fact that contingency affects intellectual life as certainly as it does the growth of plants in our forests and in our cultivated fields. There are departments of knowledge where demonstration, no matter how flawless, is unlikely to entail factual agreement except within small circles of kindred minds. Such is the case with all philosophic sciences, and if a man feels that he has no calling for solitary research, solitary contemplation, and solitary struggle against error, he should conclude that he has no calling for philosophy. But there are disciplines which by reason of their social function, and also by reason of the conditions to which their existence and their development are subjected, systematically seek factual communicability and the largest possible amount of agreement. Such is the case of all techniques (e.g., engineering, medicine) and of all the sciences insofar as they are directly or indirectly, proximately or remotely, dominated by technical purposes. Considering, further, that scientific research in our society is to an unprecedented extent the work of teams, it becomes clear that the successful communication of propositions is not only a condition of technical fertility: it is also a condition of progress and existence of such disciplines.
Another domain where factual agreement is sought systematically is that of positive law. There si no need to elaborate on this point: by the very fact that formulas of positive law are designed to hold men together, organize their cooperation, bring about uniformity in the behavior of indefinitely many individuals, it is highly desirable that these formulas should command the assent of all persons concerned or most of them. We must, accordingly, expect the jurists to evidence an eagerness to keep away from issues on which minds are irretrievably divided. In this respect there is a striking analogy between the case of the jurist and that of the natural scientist. Duhem, among others, said that if physics claimed to be an explanation of nature, it would soon become as controversial as metaphysics. Why should that be avoided? Again, because of the function that physics has to play in society and because of the social conditions of its existence and development. All natural scientists, no matter how divided they may be on the philosophical interpretation of their own science, would agree that the search for factual consensus plays a considerable role in their choice of questions and in the determination of their standpoints and their ways of research and expression. Thus the merits of consensus prompt the scientists to abstract from many aspects of reality which, indeed, may well be worth considering, which perhaps should be considered by somebody—e.g., by philosophers—but which have to be left out of the picture by men who absolutely need to understand each other in order to be able to work together. The sane need for abstraction is felt in positive law. The ideal of the positive jurist, especially in societies deeply divided on philosophical, moral, social, and religious subjects, is a system of legal formulas which would be equally acceptable to the nominalist and the realist, the mechanist and the hylomorphist, the believer in universal necessity and the believer in the reality of contingency, the upholder and the denier of free choice, the rationalist and the voluntarist, the theist and the atheist. Is such a system possible at all? The least that can be said is that it would be low in intelligibility and would defeat a major purpose of the jurist, which is to explain the law. Jurists are caught in an antinomy: inasmuch as they are concerned with explanation they are inclined toward philosophical analysis, and they move away from desirable consensus; but inasmuch as they systematically seek consensus they are bound to abstract from the really illuminating issues which are philosophic and on which, as a matter of fact (though not by essential necessity), minds will always be divided. Legal positivism is considered by many a valuable compromise. But it is just another philosophy, and its being describable as the philosophy of the nonphilosophers does not give it power to win consensus. Yet the legal positivist may at least cherish the illusion that he is satisfying the conditions of unanimous assent; the theorist of natural law cannot cherish such an illusion. Accordingly, jurists generally favor some sort of positivism. The case had been different in the past, prior to the constitution of positivism as a distinct system of philosophy. But when the theory of natural law seems to be commonly accepted and works as a factor of agreement, there are good reasons to suspect that it is embodied in an ideology. Then the weight which brings about consensus is not that of objectivity; it is rather a sociological weight which is at best an embarrassing ally of truth. The conflict between the requirements of philosophic analysis and those of consensus may cause difficulties in the work of the philosophers; it inevitably causes trouble in the treatment of such a subject as natural law by jurists, for they, indeed, have strong reasons to seek consensus. And we cannot doubt that such problems will last as long as there remains any philosophic interest in nature and in law.*Assent to an axiomatic proposition is necessary as soon as this proposition is understood. Whether it is easy or not to understand axiomatic propositions is a totally different issue. The notion of logical immediacy, which means nothing else than the connection of a subject and a predicate without the offices of any intermediary term, must not be confused with the psychological disposition commonly expressed by the exclamations “That is obvious!”
If you are interested in these and like questions and texts, and wish to think deeply about the natural law, sign up for Dr. Matthew Minerd’s seminar—starting in July 2023!