Simon says: Let it be law! On the (un)just (case)law
Friar Philip-Neri Reese, O.P., professor of philosophy at the Pontifical University of Saint Thomas Aquinas (a.k.a. Angelicum) in Rome shall present a logical demonstration on why a political system is intrinsically ethical, and furthermore that laws themselves are intrinsically related to the ethical character of the political society[1]. Since the demonstration is purely abstract like any Aristotelian-Thomistic discourse should be (in the scholastic tradition), it is my view that this is an excellent basis for a more practical debate on whether the law should have an ethical basis also. Moreover, it is to answer the age-old question on whether an unjust law could be called a (proper) law.
I am therefore trying to offer some (very) practical examples on why this theoretical point is useful in dealing with the day-to-day problems a lawyer would encounter in his professional life. As Augustine of Hippo once pointed out, lex injusta non est lex[2]. Thomas Aquinas, while not putting it so directly (except when quoting Augustine[3]), would have endorsed the sentence[4]. Nowadays, courts are still struggling to make sense of this ethical rule in their activity.
Recent (case)law on PhD titles in Romania
A clear law could produce unethical results. For example, it is essential for the rule of law that the state should not (discretionarily) change its opinion once it took a decision that already affected some citizen(s). Of course, the decision could have been flawed and it could be revised, but this task is for the judiciary to evaluate in a contentious procedure. Moreover, if the original decision recognized a right to an individual, that right cannot be withdrawn by the State, on the grounds of mistake, without a fair trial. These rules are reasonable since they tend to defend the individuals from the discretionary power of the State. In line with this reasoning, the conclusion is that the State cannot unilaterally withdraw an award.
When this (reasonable conclusion) is generalized, however, it might generate questionable results. For example, when the Ministry of Education awards a PhD title to a person, it was recently held that this award cannot be withdrawn by the same authority that confirmed it in the first place[5]. Even if it is proved that the content of the PhD thesis was copied from sources not disclosed by the ‘author’ (i.e. which is called plagiarism), the authority cannot cancel the award. It can only ask the court to cancel it. But wait! The authority cannot ask for the cancellation either because it has no legal standing, or because the claim would be time-barred in the meantime.
This is an example of how a well-intended rule meant to restrict the discretionary power fails producing an equitable remedy for defaulting individuals. The road to hell is paved with good intentions… And the fact that there is an entire Highway to Hell and only a Stairway to Heaven says a lot about anticipated traffic numbers[6].
The law as command(ment) engraved with authority
Like in the children’s game Simon Says, the law is a command. The (initial) Biblical Law was also conceived as (the Ten) Commandments. These command(ment)s should be issued by someone engraved with authority. Otherwise, they will not be obeyed. It is irrelevant here whether the authority is natural or artificial (e.g. imposed by force). In a democratic society, this kind of authority is vested in the people’s (elected or appointed) delegates.
As with the Ten Commandments, the law (any law) should be not only observed, but obeyed. The citizens are mere ‘subjects’ subdued by the law. They should follow the law’s commands. In theory, this is a simple task since the law reflects the will of the community where the subject is also part of. In other words, we are obeying our own rules. In practice, however, the people as lawgiver have often different views from the people as law subject. The ideal “government of the people, by the people, for the people” that President Lincoln mentioned in his famous Gettysburg Address is just a rhetorical hope.
The problem of critical thinking and its destructive effect to the legality
The positivist argument could be stated (in a nutshell) as follows: the law is the reason of the people and the people cannot be wrong. Indeed, in a (functional) constitutional democracy, various groups will challenge an unjust law and the balance of powers shall eliminate such laws from the system (through political will or judiciary decision). However, in practice, the power tends to increase its absolute grip on the law-giving mechanisms. For example, when the Romanian Government tried to pass a law in favor of its members (seeking immunity from prosecution), it was the people’s revolt that stopped the process. However, in the aftermath of the protests, the Constitutional Court decided that there should be no review by the judiciary of the lawmaking process[7]. By creating this clear separation of powers, the Court effectively accepted an immunity for promoting a(n unjust) law. In the words (attributed to) of Otto von Bismarck, ‘laws are like sausages, it is better not to see them being made’.
In other words, if any subject shall use its critical thinking before subjecting to the law, the law shall lose its coercive effect. In fact, the law shall cease being a law at all since it will not be observed qua law but rather as a mere option. While this argument (somehow related to nemo censetur ignorare legem) holds true as a general rule, it fails to be operative when the judge is asked to apply to law to some facts where that law will produce unjust results and also when citizens realize that obeying the law shall produce inhumane results[8].
(Black-)letter law vs the spirit of the law(s)
For more than half a century, the American constitutionalism is the scene of the epic battle between Originalists and Organicists. The former defend the ‘plain’ meaning of the (text of the written) law, while the others refer to the ‘living’ ideas the text could infer by interpretation. In a way, the first Organicist we know of was Jesus who (in the words of Saint Paul in the Epistle to Romans) said that the Ten Commandments should not be read strictly, but rather in their spirit.
In our modernity, from Montesquieu’s famous treatise on De l’esprit des lois (1748) to Louis Josserand’s own De l’esprit des droits et de leur relativite (1939), legal scholars tried (with various degrees of success) to catch that ‘spirit’ that lies beneath the thousands of legal texts. The huge failure of positivism during the World War II started the famous Fuller-Hart debate on the ‘morality’ of law. All these arguments reopened the question on whether we should deny legal power to unjust laws.
Human (reasoned) tendency towards virtue
Maybe I am too optimistic, and Thomas Aquinas himself certainly was, but I prefer to consider that the human being is inclined to do the ‘good’. Whether it is about a virtuous good, or a hedonistic one, this is a different question. I do not think we are doing bad things because we want to be ‘bad’ but because we create a narrative where our action is justified by a sense of good. As a matter of fact, we all want to have a smooth sleep and not to argue with our own conscience all the time (this could be very annoying).
Therefore, I state that it is reasonable to be ‘good’ because this will save you from (a lot of) troubles. This could be one of the senses in which you could read the theological debate on the inexistence of evil per se but only as an absence of good. Hence, I delimitate myself from the Augustinian ‘original sin’ doctrine. Well, the problem is that if we equate laws with virtuous commands and observing the law with a virtue in itself, we then risk doing bad things because we apply unjust laws.
But do we have the option to analyze the (content and effects of the) law prior to obeying its commands? Should we apply our critical thinking before respecting the law? Should we decide when we see a red traffic light in the middle of the night on an empty street to engage in crossing anyway?
Relation between faults in education (reason) and rising of populism (emotions)
In our (post)modern times, various researches identified a lot of biologically hardwired mechanisms in human beings. These mechanics are living proof that we have an ‘animal spirit’ still buried inside us. The earth we were made of is still there. States, corporations and institutions appeal to those ‘reflexes’ in order to manipulate us. The only way to avoid succumbing to our biological limits is through education.
If our ‘nature state’ were to prevail, then we will be no different from animals and we can be perceived as simple ‘deterministic’ beings. But then again the law would lose any meaning because the laws are built on the idea of free will. If we don’t have to choose, then we cannot be blamed for our actions. As such, the premise of the legal system is that we are endowed with free will. And free will should be used with reason.
When the appeal to reason deteriorates, the ‘animal spirits’ within us take charge. When various organizations (political or commercial) make appeal to our emotions, they are successful in their mermaid’s song as long as our reason is not activated. The main ‘activator’ of our reason is (formal) education. Unless we know what we don’t know we cannot know haw less we know.
These past years we saw various laws appealing (exclusively) to emotion (Law no. 14/2017, Law no. 77/2016, retirement plans laws – to name a few). Their normative content is questionable but nevertheless they were passed into law. While they triggered immense litigation workload to the courts, nobody declared them unjust as such. Maybe Thomas Aquinas could help us across the ages.
Quality of the law (Aquinas)
For Aquinas, a (proper, human) law should meet at least three qualities: a legitimate purpose, a rightful author and a proper form[9].
The Purpose states that the law must be for the common good (of the people). Today we tend to equate this with the ‘public interest’. For example, personalized laws are not constitutional. However, recent debates over a law allowing the president to run for Senate reminded of similar debates two decades ago on the same subject. If this year the reason triumphed[10] and the law was dropped, 20 years ago a similar law passed and it was declared constitutional[11]. We also had laws targeted to certain companies; they were even called by the lawyers by their recipient name – Daewoo law, Renault law, Damen law).
The Author must be in the scope of the authority making the law. Today we see a move from the traditional democratic balance of powers towards a strict separation of powers. The Constitutional Court practically destroyed the checks and balance mechanism by declaring that only the Parliament can make laws and no other power could interfere with the legislative process[12].
The Form: should be such that its burden should be equal and apply to all. Today there is more nuanced principle of ‘equal treatment’ that departs from pure egalitarianism towards determining similar situations[13].
Quality of the law (today)
Today, and especially in the past decade, the Romanian Constitutional Court (building on the reasoning of the European Court of Human Rights) developed the theory of the quality of a normative act to be acceptable qua law: it should be accessible and foreseeable.
One of the key aspects in this regard is the stability of the legal system that needs to be addressed at the level of its internal logic. As such, the RCC stated that a new piece of legislation that contradicts the (existing) general framework fails to observe the quality of the law standard[14]. The RCC case-law elaborated an intricate theory of the rule of law in what the quality of the law (as part of the normative system) is concerned[15]. Under this theory, there are both formal (a) and substantial (b) criteria to be observed.
In the formal set, the case-law addressed two aspects: the systemic integration (i) and the abstract requisites (ii) for a law to be qualified as such, apart from passing through a certain drafting, voting and enacting process. As for the systemic integration, it was stated that each (new) piece of legislation should observe the general principles of the legal system, that is to conform to the main traits of the system laid down by the Constitution. In what the abstract requisites are concerned, the discussion became more technical since these traits expanded into a stand-alone set of rules[16]. Hence, the law should be ‘clear’ in order to be easily accessible to the understanding of its addressees (eventually with the help of professionals[17]) while maintaining its level of generality that imposes certain abstractness to the formulation[18]. Then, the law should be ‘fluent’ in the sense that each legal provision should be logically connected with the rest of the system so that an individual would not be surprised when an obligation is set upon him ‘out of the blue’. Also, the law should be ‘intelligible’, meaning that the citizen should be able to understand its purpose.
In other words, the law should be both readable (by reading its content one should understand what it says) and coherent (with the rest of the system[19]). The assumption is that the law addresses itself to a reasonable person who is able to understand its reason even if the text of law only directs its actions without specifically explaining the reason why it prescribes such a path of action. The language of the legal text should be ‘concise, formal, clear and precise’[20].
The law is ultimately just ‘a means to an end’[21]. Therefore, its quality strongly depends on its ability to generate reasonable effects in practice. The quality of the law is subject to an ex post review from the vantage point of its day-to-day application. Therefore, the legal text should be analyzed by reference to its practical effects[22]. And the main goal any law should strive for is precisely the implementation of the rule of law[23]. The law should be understandable by the citizen[24], it should be reasonable[25] and, more importantly, the addressee should understand mainly its consequences[26].
In the substantial set of criteria, the main topics concern the foreseeability (i) and the accessibility (ii) of the law. A law is foreseeable if it is precise (exact) and clear. A law is accessible first when access to its content is reasonably easy to obtain. In addition, however, accessibility also means that the required behavior should be easy to spot in the haystack of (new) laws. Therefore, a new rule should be logically integrated[27] into the corpus of existing legislation in such a way that it could be easily found[28].
*
To conclude, today, scrutinizing the quality of the law is quite a complex task which is mandated mainly upon the Constitutional Court to perform, based on the supremacy of the Constitution over (regular) law. In addition, when the laws to be checked are affecting human rights or are challenging the European acquis, the European standards become binding. We need to put our trust in these ‘guardians’ to spot the unjust laws in the pile of legal texts. And it remains for anyone of us to address them with interrogations every time a law seems unjust to us[29]. However, in order to convince these courts of last resort about the need to (also) have an ethical approach to their caselaw, the argument about the intrinsic ethics of law is needed.
NOTES
[1] Philip-Neri Reese, „Politics – An Extension of Ethics? A Thomistic Perspective on Laws, Communities, and the Common Good”, https://csdnan.ro/conferinta-politica-o-extensie-a-eticii-o-perspectiva-tomista-asupra-legii-comunitatilor-si-binelui-comun/.
[2] St. Augustine, On the Freedom of the Will, 1.V.11: „Nam mihi lex esse quam non videtur, que justa non fuerit”.
[3] St. Thomas Aquinas, Summa Theologiae, Ia IIae, Q95 a2.
[4] St. Thomas Aquinas, Summa Theologiae, Ia IIae, Q96 a4. See D. Knowles, The Limits of Law. ‘Lex injusta non est Lex’, in Blackfriars, vol. 37, no. 439/1956, p. 409; N. Kretzmann, Lex iniusta non est lex. Laws on Trial in Aquinas’ Court of Conscience, The American Journal of Jurisprudence, vol. 33, no. 1/1988, p. 99-122.
[5] See CCR, decision no. 364/2022.
[6] Unknown author, Internet catchphrase.
[7] See CCR decisions no. 63/2017 and no. 68/2017.
[8] This is, in a nutshell, the argument of the prosecution in the Nurenberg Trials. See B.H. Bix, Radbruch’s Formula and Conceptual Analysis, American Journal of Jurisprudence, vol. 56(2011), p. 45-57.
[9] See S. Vieru, Aristotle’s Influence on the Natural Law Theory of St Thomas Aquinas, in The Western Australian Jurist, vol. 1(2010), p. 120.
[10] It is to be debated whether it was reason or only political calculus…
[11] See CCR decision no. 339/2004.
[12] See CCR decisions no. 63/2017 and no. 68/2017
[13] See CCR decision no. 107/1995.
[14] See CCR decision no. 26/2012.
[15] More details in R. Bercea, R. Rizoiu, The revival of the rule of law issue. The Romanian perspective, forthcoming in M. Safjan (ed.), The Revival of the Rule of Law Issue, Intersentia, 2024.
[16] See Article 8 para (4) of Law no. 24/2000.
[17] See ECHR, Great Chamber, Dubská and Krejzová v. Czech Republic (2011), § 171.
[18] See CCR decision no. 777/2017.
[19] See CCR decision no. 611/2017.
[20] See Article 36 para (1) of Law no. 24/2000.
[21] As the title of a famous book by Rudolph von Jhering teaches us.
[22] See ECHR, Bordovskiy v. Russia (2005), § 49.
[23] See ECHR, Malone v. United Kingdom (1984), § 67. Adde ECHR, Halford v. United Kingdom (1997), § 49; and ECHR, Great Chamber, Vistiņš and Perepjolkins v. Latvia (2012), § 96.
[24] See ECtHR, Stephens v. Malta no. 1 (2009), § 61.
[25] See CCR decision no. 41/2011.
[26] See CCR decision no. 17/2015, § 56.
[27] See CCR decision no. 462/2019, §31.
[28] See CCR decision no. 104/2018, §72.
[29] See D.E. Edlin, Judges and Unjust Laws. Common Law Constitutionalism and the Foundations of Judicial Review, The University of Michigan Press, Ann Arbor, 2010.
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