Ius et Iustitium is happy to present this guest post by Brian McCall. Mr. McCall holds the Orpha and Maurice Merrill Chair in Law at the University of Oklahoma.
It seems as if the only thing about which most Americans can agree is that America has become more deeply divided than any time since the mid-nineteenth century. The people of America are so divided that it raises the question, Is the Republic still a commonwealth? Cicero, in his great work of political and legal philosophy, De Republica, defined a commonwealth as: “an assemblage of some size associated with one another through agreement on law (ius) and community of interest.”[1] This definition contains three elements: (1) a group of people that is of a certain minimum size, (2) a common interest, and (3) an agreement on the nature of law and justice. The Latin word used for this final element is ius. This word possesses a rich penumbra of meanings beyond that of the simple English word “law.”[2] The range of meanings of ius includes “law, justice, right, rights, procedures of justice, just behavior, court, regulations, power, authority.”[3] The term also has the “connotation of ‘justice’—that is, the broader principles of equity or morality which a legal system is supposed to embody.”[4] This rich word is distinguished from the Latin word lex, also rendered in English as “law,” which has a more specific meaning than ius. It refers merely to written rules adopted by a constitutionally approved legislative authority. Thus, when Cicero requires a consensus on ius (consensus iuris) before discussing the best form of civil laws, he is referring to a much deeper consensus than a mere agreement on the specific laws of a polity. He insists upon a consensus about the very nature of law and justice. In De Legibus, his discourse on the best form of laws for a commonwealth, the reader must wait until Book II before Cicero begins listing these laws. Cicero requires from his philosophically pluralist discussion partners[5] at least a tentative agreement on fundamental philosophical principles that underlie law, before describing specific civil laws.[6]
Applying these three elements to the United States of America, there clearly is an assemblage of people of a sufficient size, with over 300 million people. It is not clear that Americans share a common interest in terms of practical or economic matters. For example, it would seem that some sectors of the country share an interest in energy production or a revitalized manufacturing base; whereas, others seem to be more interested in international finance. Part of the populace seems to be interested in prioritizing America’s economic interests first (economic nationalism), whereas others are more deeply committed to the interests of a global transnational economic system.
Putting aside the question of whether Americans share common interests, there seems to be a complete breakdown of any consensus iuris or agreement on the fundamental principles of law and justice. The nation is so deeply divided over whether justice requires either (1) the protection by the law of the life of unborn children from a procured abortion or (2) the fundamental right of the mother to procure an abortion (which right must be supported with tax-payer funds). Some Americans believe that justice prohibits the law from compelling a person to act contrary to their conscience or religious beliefs (by, for example, providing contraception or abortion) and others feel equally as strongly that justice demands that these actions be done by all Americans regardless of their conscience. Half of the people claim that sex is an immutable characteristic and that the law in justice can only recognize as a marriage the contract between two people born with opposite sexes. The other half claim that justice demands that all citizens, in virtually all capacities, acknowledge a person’s chosen gender even if it does not correspond to their biological sex and recognize as marriage relationships between persons of the same sex, even if one’s religion instructs this is impossible.
Such divergent views (and more examples could be given) are not merely disagreements over matters of detail or choices of free determination by the legal authority. They are not over the political prudence of mandating driving on the left side of the road as opposed to the right side of the road. These and other similarly deep disagreements lie at the very heart of the nature and requirements of justice and the possibilities and limits upon acts of law in light of them. St. Thomas defines justice as the constant and perpetual will to render to others what is their due.[7] Thus, to render justice, one must know what is “due” to others. To know what is due we look not to law but to justice because as St. Thomas tells us law (ius) is the object of Justice.[8] Justice (or the just thing itself)[9] identifies what should be law (ius). Yet, there is no consensus in the United States that justice is the formal and final cause of law.[10] Rather, the prevailing view is that law determines what is just and what is due. Rather than law needing to be conformed to justice, justice is transformed into whatever the law decides.
As a result of the lack of consensus that law is determined by justice (not the reverse), the will of the sovereign is subject to no limiting principle other than the ability to win an election or a majority of the legislature or a majority of Supreme Court Justices. Law is purely the product of the will of these princes in the sense that Quod principi placuit, legis habet vigorem.[11] As a result, changes of presidential administration are an opportunity to erase everything from the prior administration with whatever now pleases.[12] Law is not an ordinance of reason,[13] but rather the product of a gladiatorial conflict between opposing political parties that is imposed by the victor by virtue of the victory. The opposition’s rule and measure must be changed not because it is contrary to reason or because it is contrary to the common good but simply because it is the opposition’s rule and measure. Even if the new laws that please the new prince were oriented to the common good, St. Thomas warns that in prudence rulers should be reluctant to make sweeping changes to the law simply because a better law may be formulated.[14] The casting aside of the limits of reason, the common good and prudence, produces ever more frequent moments to wipe the slate clean and start anew (2008, 2016, 2020, etc.). Although the use of executive orders has been growing for decades, “[i]n his first two weeks in office, President Biden has signed nearly as many executive orders as Franklin Roosevelt signed in his entire first month. And President Roosevelt holds the record.”[15] Although there is nothing inherently wrong with the development of law through executive orders, they represent a method whereby the reversal of the will of the prince can be achieved even more rapidly than can be done by a court ruling or legislative enactment. They therefore represent in a sense the epitome of the complete triumph of the will of the president in the making of the law.
Now, one might argue that we do have a consensus on the limits on the will of the prince. It is the Constitution. Yet the Constitution itself is subject to amendment either directly, through a supermajority vote, or indirectly, through Supreme Court decisions. If the Constitution were amended to reintroduce slavery, there is no consensus that such an amendment would be “illegal”. For some decades, Supreme Court Justices such as Antonin Scalia, who advocated “originalism,” looked to history and original intent to be a limiting principle upon the will of the nine princes to make what pleased them the force of law. Yet, that theory has failed in the face of cases such as Obergefeld v. Hodges. It also fails to address the codification of the opposite of a Supreme Court decision as evidenced by Biden’s pledge to codify the rule in Roe v. Wade in the law even if it were overturned by the Supreme Court.[16]
Rather than recognizing a human-drafted constitution, Cicero looks to the eternal law for the consensus on law that is necessary. In his De Legibus, Cicero makes clear that before he can discuss the best laws, the “nature of law” must be explained, but it cannot be done by drawing from the “praetor’s edict” or the “Twelve Tables” but from the “deepest core of philosophy.”[17] Although his understanding of the eternal law is less precise than Aquinas’s, Cicero grasps the concept that law has its origin somewhere beyond mere legislation: “Law was not thought up by human minds; that it is not some piece of legislation by popular assemblies; but it is something eternal which rules the entire universe through the wisdom of its commands and prohibitions. Therefore . . . [the] first and final law is the mind of the god who compels or forbids all things by reason.”[18] Cicero’s understanding is that law comprises both the law produced by the civil institutions (the Senate and the Praetor) and the “first and final law,” that is, “the mind of the god” who rules all things “by reason.” As the first (formal cause) and final (final cause) law, eternal law is the limiting principle on all human laws, including constitutions.
This duality, higher and lower, is maintained by Isidore of Seville when he claims that all laws are the product either of divine will or human political or conventional law.[19] He also makes clear that the divine law limits the human law by citing the example that human law may forbid one to cross the property of another but divine law permits it.[20] Thus, even if the human law neglected to include an exception from its prohibition for necessity, the divine law would provide it. Gratian maintains the same claim when asserts that the “human race is ruled by two things: natural law [naturali iure] and long-standing human customs [moribus].”[21]
Perhaps behind the originalism of Scalia and others was an implicit premise that at the origin of the Constitution there was a consensus on the very nature of law and justice as limited by the eternal law. This original acceptance of eternal law by the assemblage of the people limited the will of the legislature, executive, judiciary, and even the assembly of the people. Perhaps what may be salvageable from originalism is the claim not that the original subjective intent of the drafters of the Constitution limits its meaning, but rather, that the original consensus on the nature of law and justice that was necessary for the people of the United States to become a commonwealth. Yet, even this version of originalism would seem ineffective at this moment in history, if that original consensus has since been broken and not reconstituted.
With such deep disagreements on the very nature of justice and law and their relationship to each other, it seems that Cicero, were he alive today, would not recognize the United States as a commonwealth but merely as an assemblage of peoples perpetually engaged in a civil war with each other (although not one waged presently through arms) to seize the levers of power to control the will of the prince. For so long as this state of affairs exists, we can expect no stability, no development of the law, but merely a Topsy-Turvey contest for power until such time, if any, that a Ciceronian consensus is restored.
- Marcus Tullius Cicero, On the Commonwealth, On the Commonwealth and On the Laws, bk.1, para. 39a, 18 (James E.G. Zetzel ed., Cambridge Univ. Press 1999). ↑
- See Kenneth Pennington, “Lex Naturalis and Ius Naturale,” 68 The Jurist 569 (2008). ↑
- Cicero, On the Commonwealth and On the Laws, xl. ↑
- Ibid. ↑
- see Cicero, De Legibus, in On the Commonwealth and On the Laws, 112n25. ↑
- See ibid., 110. ↑
- Summa Theologica, II-II, Q. 58, A. 1. ↑
- Ibid., II-II, Q. 57, A. 1. ↑
- Ibid. ↑
- See Brian M. McCall, The Architecture of Law: Rebuilding Law in the Classical Tradition, (Notre Dame Press 2018), Chapter 9. ↑
- Justinian, Digest, in Corpus Iuris Civilis, ed. Joannis L. G. Beck (Leipzig: Carolum Cnoblock, 1829), 1.4.1 (hereafter Digest), http://www.archive.org/stream/corpusiuriscivi00beckgoog#page /n2/mode/2up. (“Whatever pleases the prince has the force of law.”). ↑
- See Glenn Thrush, “The Lure of Executive Orders: Easy to Implement, but Just as Easy to Cancel,” The New York Times (January 22, 2021), https://www.nytimes.com/2021/01/22/us/politics/biden-executive-orders-trump.html. ↑
- See St. Thomas Aquinas, Summa Theologica, I-II, Q. 90, A. 1. ↑
- Ibid., I-II, Q. 97, A. 2. ↑
- Tamara Keith, “With 28 Executive Orders Signed, President Biden Is Off To A Record Start,” NPR (February 3, 2021), https://www.npr.org/2021/02/03/963380189/with-28-executive-orders-signed-president-biden-is-off-to-a-record-start. ↑
- See Kate Smith, “Biden pledged to make Roe v. Wade “the law of the land.” Abortion-rights supporters want more.” CBS News (October 8, 2020), https://www.cbsnews.com/news/biden-roe-v-wade-law-land-supreme-court-supporters/. ↑
- Cicero, De Legibus, 110-11. ↑
- Ibid., 132. ↑
- Isadore of Seville, Etymologies, trans. and ed. Stephen A. Barney, W. J . Lewis, J .A. Beach, Oliver Berghof, V.ii, (Cambridge University Press 2006), 119. ↑
- Ibid. ↑
- Gratian Decretum, D. 1, http://www.columbia.edu/cu/lweb/digital/collections/cul/texts/ldpd_6029936_001/pages/ldpd_6029936_001_00000059.html. ↑