Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk. What follows is a response to Alicea’s reply to an article published on I&I and available here.
Joel Alicea, the foremost defender of the position that positivism and natural law theory are actually compatible–contradicting Aquinas and all the baroque scholastics he cites–is at it again.[1] His response to my original critique misconstrues a number of my arguments and fails to engage with any of my substantive criticisms. Instead, he is content to repeat the slogan that the people’s adoption of the United States Constitution means that the Constitution is interpreted without reference to the natural law. As I noted before this position is inconsistent with those thinkers that formulated the transmission theory of authority, because for such thinkers positive law is always governed by the natural law. For example, Yves Simon distinguishes two ways of rooting authority in the people: 1) the coach-driver theory which holds that the government is bound to implement the will of the people; and 2) the transmission theory of authority in which the government upon reception of authority from the people is not bound by the will of the people but the demands of the common good.[2] Effectively while talking the language of the transmission theory of authority via sleight of hand Alicea is adopting the coach driver theory of authority. He holds that the judiciary and the United States Government must not interpret and implement the Constitution in accord with the demands of natural law but in accord with the original will of the people in 1789. Thus, on Alicea’s account the common good, right reason, and natural law do not norm this determination and direct its interpretation. Instead, judges and the government are bound to implement the will of the people in 1789. This theory, unlike the classical transmission theory, is condemned by the Catholic Church because it separates positive law from natural and divine law. Further, this account of popular sovereignty, in which the government is constrained by the will of the people, is precisely what was condemned by Leo XIII and Pius X in their magisterial teaching.[3] Alicea’s core thesis having been disposed of, I will clear up some misconceptions in his article and respond to an objection.
First, Alicea would object that he is simply asking that the United States’s particular determination of its regime via the adoption of the Constitution be respected. After all, the natural law demands respect for the positive law. This objection again operates as a kind of sleight of hand. No one denies that the natural law demands that the positive law be respected, but every natural lawyer holds that any particular determinatio or specification of the natural law is normed and interpreted by the natural law. Hence the Church’s teaching that a law “out of conformity with the principles of right reason, and consequently hurtful to the commonwealth . . . can have no binding force of law.”[4] Similarly the thesis that the Constitution must be interpreted without reference to the natural law leads to the following proposition condemned by Pope Pius IX: “Right consists in the material fact. All human duties are an empty word, and all human facts have the force of right.”[5] If the Constitution and law is simply interpreted as the will of the people at the time of enactment then right becomes a function of “material fact.” But this cannot be because right “is so called because it is just.”[6] As Aquinas teaches, when “a thing is, of itself, contrary to natural right, the human will cannot make it just.”[7] Thus, the will of those in 1789 cannot make a law valid that is inconsistent with the natural law. To hold otherwise is to hold the error of positivism which reduces law to mere fact. Alicea has committed this error.
Second, on the merits of the veracity of the transmission theory of authority and why it is incompatible with a true account of political authority, Alicea refuses to engage with any of my substantive arguments. Specifically, I argued that the people as understood by Alicea cannot exercise authority because the people without an authority to direct them are not a political community but an undifferentiated mass. Like a body without a soul is only called a body equivocally, so too the people without a separate authority are called a political community only equivocally. A separate political authority is needed for a political community because the authority’s imposition of order on the community is an efficient cause of the political community’s coming to be.[8] In support of this classical understanding of the political community I cited several texts from Aquinas demonstrating that he holds this understanding and also explaining why this position is correct.[9] Alicea disputes none of these texts and simply resorts to generalities about later thinkers who hold the transmission theory of authority without showing how they escape this critique.[10] This is not an argument.[11]
Third, Alicea misconstrues the nature of my point about the origins of political authority. The point was not that usurpation of a legitimate political authority would be just and that the coming to be of a political community cannot be unjust. The former position is clearly inconsistent with my citation to Leo XIII’s condemnation of the proposition that the government can be revoked by the will of the people.[12] The latter position is a misunderstanding of the position I was laying out. For Plato, Aristotle, and Aquinas the operative question that justifies obedience to a regime is not whether, e.g., thousands of years ago, Minos actually consulted with the gods when he laid down laws for Crete, but whether the authority in power and the laws passed therefor direct its subjects to the common good.[13] If the laws do not, then they may be disobeyed—presuming disobedience would not cause scandal or obedience would be a matter of intrinsic immorality.[14] If they do direct a person to the common good, on the other hand, they command obedience, even if issued by a wicked ruler.[15]
Last, Alicea accuses his critics of refusing to answer the questions such as who promulgated the Constitution and whether the Constitution is a law as understood by Aquinas. On the latter point Alicea is the one who is positing that the Constitution is not law as Aquinas understands it. As I argued in my original article:
He [Alicea] implicitly rejects Aquinas’s definition of law as “an ordinance of reason for the common good,”[16] because the commands of the Constitution and laws enacted under it are not to be measured and ruled by right reason, the natural law, but by their conformity to the will of the people in 1789.
My position is simply Aquinas and the Church’s position that the Constitution like any other law must be interpreted in light of right reason and the natural law. If particular historical understandings of the Constitution conflict with the natural law or the common good than the natural law controls.[17] Alicea rejects this position while attempting to claim the mantle of natural law for crass positivism. That American elites were able to persuade a majority in the state ratifying conventions to ratify their work doesn’t affect this point.[18]
In sum, Alicea’s position is false and cannot be held by a natural lawyer. His argument is an elaborate attempt to clothe the wolf of positivism in sheep’s clothing. His reliance on the transmission theory of authority fails because the theory itself is erroneous and that theory does not even support positivism. Again, I re-iterate my prior conclusion: Alicea’s arguments are built on a pile of sand.
- See Joel Alicea, Natural Law and Popular Sovereignty: A Response to My Anonymous Critic, National Review (Aug. 30, 2023), https://www.nationalreview.com/2023/08/natural-law-and-popular-sovereignty-a-response-to-my-anonymous-critic/ ↑
- See Yves Simon, Philosophy of Democratic Government 144-176 (1951). ↑
- See Leo XIII Diuturnum illud § 23 (“For an unwillingness to attribute the right of ruling to God, as its Author, is not less than a willingness to blot out the greatest splendor of political power and to destroy its force. And they who say that this power depends on the will of the people err in opinion first of all; then they place authority on too weak and unstable a foundation. For the popular passions, incited and goaded on by these opinions, will break out more insolently; and, with great harm to the common weal, descend headlong by an easy and smooth road to revolts and to open sedition.”); Pius X, Notre charge apostolique (condemning the Sillon’s theory which “holds that authority – which [the Sillon] first places in the people – descends from God, but in such a way: ‘as to return from below upwards, whilst in the organization of the Church power descends from above downwards.’”); accord Aquinas, Commentary on Romans, Ch. 13 Lectio 1 § 1022 (“The answer is that royal power or the power associated with any other dignity can be considered from three aspects. First, in regard to the power itself, which is from God ‘through whom kings reign’ (Prov 8:15).”). ↑
- Leo XIII, Libertas praestantissimum § 10. ↑
- Pius IX, Syllabus errorum, § 59. ↑
- Aquinas, ST II-II, Q. 57 a 1 sed contra (quoting Isidore Etym. v, 2). ↑
- Id. at a. 2 ad. 2. ↑
- Aquinas, Commentary on the Politics Bk. 3, Lectio V § 385. ↑
- See e.g., ST I-II, Q. 90, a. 3 (“Now a social life cannot exist among a number of people unless under the presidency of one to look after the common good; for many, as such, seek many things, whereas one attends only to one. Wherefore the Philosopher says, in the beginning of the Politics, that wherever many things are directed to one, we shall always find one at the head directing them.”); Aquinas, Commentary on the Politics Bk. 3, Lectio V § 385 (““[T]he imposition of order in a city resides entirely with the person who rules over the city; and such an imposition of order is the commonwealth [politia] itself[.]”); Aquinas, Commentary on the Politics Bk. 1 Lectio 1 § 35 (“But individual men are related to the whole city as are the parts of man to man. For, just as a hand or a foot cannot exist without a man, so too one man cannot live self-sufficiently by himself when separated from the city.”); cf. Aristotle, De Anima 413a. (“So just as pupil [matter] and sight [form] are the eye, so, in our case, soul [form] and body [matter] are the animal. It is quite clear then that the soul is not separable from the body, or that some parts of it are not, if it is its nature to have parts.”); Aquinas, Commentary on the Metaphysics Bk. 7 Lectio 10 § 1488 (“In fact they [the parts of the body] are prior in the way in which the simple is prior to the complex, inasmuch as the composite animal is constituted of them. However, they are not prior in the sense in which prior means something that can exist without something else; for the parts of the body cannot exist apart from the animal. Thus a finger is not a finger under all conditions, because one that is severed or dead is called such only equivocally, for example, the finger of a statue or that in a painting.”). ↑
- See Joel Alicea, Natural Law and Popular Sovereignty. ↑
- Alicea also ignores significant thinkers among the baroque scholastics who rejected the transmission theory like Francisco de Vitoria, as well as earlier medieval thinkers who clearly rejected popular sovereignty like Giles of Rome, who ghost wrote Boniface VIII’s dogmatic bull Unam sanctam. As for Suarez, it is disputed as to whether he actually holds a transmission theory as opposed to the position that the people are the material cause of the political community. What is meant by references to the people as the subject of civil authority in scholastic discussions is that they are “a principle which is capable of receiving a form.” Henri Grenier, On the Subject of Civil Authority, and On Resistance of Tyranny, The Josias, https://thejosias.com/2015/05/24/on-the-subject-of-civil-authority-and-on-resistance-of-tyranny/. ↑
- See Leo XIII Diuturnum illud § 5 (“Indeed, very many men of more recent times, walking in the footsteps of those who in a former age assumed to themselves the name of philosophers,(2) say that all power comes from the people; so that those who exercise it in the State do so not as their own, but as delegated to them by the people, and that, by this rule, it can be revoked by the will of the very people by whom it was delegated. But from these, Catholics dissent, who affirm that the right to rule is from God, as from a natural and necessary principle.”). ↑
- This was part of the reason I chose the epigraphs from Plato’s laws for the original piece. Plato’s invocation of Minos signals his cognizance that the origins of political communities were often rooted in violence. Plato, Aristotle, and Aquinas, however, never adopt the liberal position that a regime’s current claim to obedience is based on that regime’s past origins. The question of resistance of an usurper at the time of usurpation is beyond the scope of this debate, but suffice it to say that a usurper may be legitimately resisted as long as there is a prospect of success. ↑
- See ST I-II Q. 96 a. 4 resp. ↑
- Cf. Aquinas, Commentary on Romans Ch. 13 Lectio 1 § 1034 (“Furthermore, even wicked rulers are God’s ministers for inflicting punishments according to God’s plan; although this is not their intention[.]”); ST I-II Q. 96 a. 4 resp. (“Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived[.]”). ↑
- ST I-II Q. 90 a. 4 resp. ↑
- Of course, even on purely positivist grounds Alicea’s references to understandings of judicial role, separation of powers, etc. are rooted in a myopic reading of American history and an a-priori conception of the Constitution. See Jonathan Gienapp, The Myth of the Constitutional Given: Enumeration and National Power at the Founding, 69 Am. Univ. L.R. Forum 183, 188 (“Here, it becomes clear that beneath their claims of unassuming devotion to the Constitution’s text, originalists often are in fact strikingly partial to a decidedly Jeffersonian Republican, if not avowedly Anti-Federalist, conception of the Constitution, one that was markedly at odds with the kind of Constitution that leading nationally-minded Federalists such as James Wilson, John Jay, and Alexander Hamilton assumed had been ratified. This inclination is enormously consequential, for this Founding-era disagreement was not an interpretive division, as originalists might insist, but an ontological one over the Constitution’s essential attributes. There is no way to side step this Founding-era debate just by “looking at the Constitution,” as doing so invariably elevates one kind of Constitution above its competitors. Under the guise of neutrality, defenders of enumerationism erase the Federalist Constitution from history.”). ↑
- Even if the transmission theory of authority was true and explains what happened in 1789, Alicea’s position would still be wrong for the reasons laid out above. ↑
