Jurisprudence as a Subaltern Science

From the Ius & Iustitium archive

This month the New Digest and Ius et Iustitium merged under the same editorial banner. In the months ahead, we look forward to revisiting some of our favourite essays from the Ius et Iustitium back catalogue. Up first is this essay from Rafael de Arizaga, who is now one of our managing editors. Rafael is the intellectual nom de guerre of a lawyer in private practice with a keen interest in classical legal scholarship and Catholic political theology.

This essay, first published in September 2020, offers a clear mission statement for classical jurists today, including the importance of reviving the “idea that Jurisprudence is a subaltern science, that is, a science epistemologically ordered to other, higher sciences…on the classical conception, the law is structurally arrayed at the service of metaphysically and theologically rich conceptions of the common good.”

Part of revitalizing the classical legal tradition, as Ius & Iustitium proposes to do, is recovering the classical conception of the science of law, traditionally named Jurisprudence, which was defined by the Roman jurist Ulpian as “divinarum atque humanarum rerum notitia, iusti atque iniusti scientia” (“the awareness of divine and human affairs, the science of what is just and what is unjust”) (Digest I, I, 10, § 2). The part of the classical view that we want to focus on here is the idea that Jurisprudence is a subaltern science, that is, a science epistemologically ordered to other, higher sciences.

This subalternation explains how, on the classical conception, the law is structurally arrayed at the service of metaphysically and theologically rich conceptions of the common good. We may dispense with the vulgar notion that political or judicial mandarins must “put” an otherwise neutral tool called “law” at the service of some external end of their choosing, which may or may not happen to coincide with our own preferences. The truth is that the law, properly understood, is formally ordered to an objective end, the common good, by virtue of its own rational nature. Thus, in order to be epistemologically consistent, classical Jurisprudence understands itself to be intrinsically ordered to the higher sciences that study that objective end.

I.

According to the philosophia perennis, the sciences are hierarchically ordered in a manner that reflects the order of the universe. Thus, for example, Physics is ordered to Metaphysics, Ethics and Economics to Politics, practical science to speculative science, and all human science to Theology, which in turn is ordered to the science of the Blessed in Heaven, and, ultimately, to the science of God. Each particular science is thus connected by bonds of epistemological subalternation to its superiors within the whole. The result is a view of knowledge as a unity in plurality, where each discipline contributes in its own way and within its own order to the unified vision of truth, of the ontological unity of creation.

How a discipline is hierarchically ordered to another depends on the nature of each particular subalternated science and its relation to its subalternating science. The Thomistic philosopher Henri Grenier explains that there are two general kinds of subalternation, the first improper, the second proper:

One science can depend upon another science in virtue of its end only, as happens in some practical sciences. Thus equestrian knowledge is subject to military knowledge, and military knowledge to political science. But there is not a true subalternation of sciences in this case. True subalternation of sciences is defined: the dependence of an inferior science on a superior science in the manifestation of truth. Hence there is true subalternation of sciences when an inferior science receives the principles from which it proceeds from a superior science.

(Thomistic Philosophy § 193)

Our concern here is to explain how this applies to Jurisprudence. Fortunately, this science has always openly confessed itself to be subaltern to others by naming its central methodological principles the fontes iuris — the “sources” of law. A source of law, to follow the apt metaphor, is the locus from which, like a wellspring, the content of the law flows authoritatively. Jurisprudence is largely the science of what these sources are, how they are to be approached, and the relations between them (hierarchical, complementary, subsidiary, etc.)

The classical tradition recognized three general categories of sources of law: (1) the positive ordinances of God’s will contained in the Scriptures, (2) nature, and (3) the ordinances of the human will. A jurist must study and understand these sources as they inform his own work, but they are given to him from outside his science — they are, as a Roman jurist might put it, not at his disposal. His object is not to examine the nature of the sources themselves, but only what they have to say in answer to the question he puts: What is the right? What is the just determination? His science, therefore, is subaltern, and openly so, to the sciences that study those sources in their own right.

From the above, we can conclude that Jurisprudence is subaltern to Philosophy, to Politics, and to Theology.

II.

Jurisprudence is, first, subaltern to Philosophy, which studies the constitution and workings of nature, especially human nature. The relation between these two sciences has been studied for centuries under the term “natural law.” St. Thomas gives a masterful illustration of the subalternation between them when he painstakingly demonstrates the existence and content of the first precepts of the natural law (ST I-II, 1. 94, a. 2 co.). These precepts, which are first principles of practical reason, derive from the natural inclinations of man, which arise from his natural constitution and are the object of the Philosophy of Nature and of Metaphysics. Moreover, St. Thomas holds that the order between the precepts follows proportionately the order that exists between those inclinations in human nature itself.

Following Grenier’s schema, this is a proper subalternation, for Philosophy here provides the principles from which Jurisprudence proceeds in its consideration, distillation and, ultimately, application of the natural law. This does not mean, however, that Jurisprudence has become a branch of Philosophy, for its proper object as a practical science — the determination of justice in each case — remains autonomous from the speculative philosophical disciplines. As St. Thomas notes, in the realm of practical matters like law, “although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects.” Thus, the proper conclusions that may be derived from those general principles may not apply equally in all cases.

St. Thomas gives the following example of one such proper conclusion: “that goods entrusted to another should be restored to their owner,” which he derives from general principles that can be demonstrated from the order of nature. He notes that “this [rule] is true for the majority of cases: but it may happen in a particular case that it would be injurious, and therefore unreasonable, to restore goods held in trust; for instance, if they are claimed for the purpose of fighting against one’s country.” The existence of that contingency, and the difference it makes to a determination of what is just, is a matter that no longer depends on the findings of Philosophy, but falls within the scope of juridical science proper. Thus, the subalternation of Jurisprudence to Philosophy concerns only the validity of the general principles of practical reason on which all law depends and which are derived from the speculative study of nature, not their particular application in a decision about what is just. But this subalternation gives Jurisprudence a firm grounding. By anchoring his principles on true Philosophy, the jurist may carry out his work in the knowledge that he is acting on the basis of the true order of things.

Second, Jurisprudence is subaltern to Politics and Theology in both senses outlined by Grenier — a double subalternation. Recall that improper subalternation occurs when one science depends on the other “in virtue of its end only,” while in proper subalternation, “an inferior science receives the principles from which it proceeds from a superior science.” Grenier explains how double subalternation can exist by referring to the case of Monastics and Economics with respect to Politics: “Monastics and Economics are not subalternate to Politics in virtue of their end only, but also in the manifestation of truth, in as much as the common good, which is the proper end of Politics, is sometimes assumed as a principle to clarify and prove the conclusions of Monastics and Economics.” (Thomistic Philosophy § 193). The same occurs with Jurisprudence.

Politics and Theology, as architectonic sciences, each dictate an end to which the action of law must be ordered: the political common good (salus rei publica) and the supernatural common good (salus animarum), respectively. An improper subalternation exists, then, in that these ends act as external regulative principles that direct the law to serve the good of man, just as the science of the shipwright is regulated by the end contemplated by the science of the sailor. At a minimum, the law must not be an obstacle to the attainment of these ends (to the extent that it is, it will be subject to abrogation), and in normal conditions the law should assist that attainment in so far as it is within its proper operation to do so. (We will not enter here into the different ways in which the political and the supernatural common goods may impose upon the order of law, including the fact that one arises from nature itself and the other from incorporation into the Church through Baptism. We are only concerned here with the subalternation itself, not with the conditions if its existence.)

There is also a proper subalternation of Jurisprudence to Politics and Theology. They both supply principles that operate internally in the science of law to, as Grenier puts it, “clarify and prove” its conclusions. Politics supplies principles to Jurisprudence through acts of power or legislation. It should be clarified here that despite the confusion that exists in this matter in the English language, which uses the words “law” and “legal” to refer both to the juridical and the legislative, the two are not the same. The acts proper to the jurist and to the legislator belong to different orders. Whereas the end of Jurisprudence is the act of judgment that asserts or says the right (ius dicere), and belongs to the virtue of justice (ST II-II, q. 60, a. 1), “the principal act of a king [i.e., a legislator] … is to make laws,” and this belongs to the virtue of prudence, of which it is proper “to govern and to command” (ST II-II, q. 50, a. 1, ad 3 & co.). Indeed, St. Thomas distinguishes between the “execution” of justice, which belongs to subjects, and its “direction to the common good,” which belongs to the ruler (ST II-II, q. 50, a. 1 ad. 1) and is enacted through legislation (Id., ad. 3). It goes without saying that on the classical view, these laws must be “ordained to the common good” as to an end in order to be true laws (ST I-II, q. 90, a. 2).

Thus, legislation (“statute,” in Anglo-American jargon) is one of the principal fontes iuris (this relation is more perspicuously expressed in other languages: “la ley es fuente del derecho,” or “la loi est une source du droit”). An act of legislation, a statute, thus supplies principles to the jurist that “clarify and prove” his conclusion, by providing rules and standards that authoritatively direct his own findings. Crucially, however, they do not determine it. The text of the statute is but one among other elements, factors, sources, and principles that allow him to reach a decision about what is the right in a particular case. Although the common good normally requires the jurist to give the enacted statute much weight in his deliberation, it is not accurate to describe his work as limited merely to applying its text. This epistemological autonomy of Jurisprudence from Politics and legislation may be explained using the distinction Grenier draws between the science of morality and the prudence (in our case, the jurisprudence) that directs the moral judgment:

Prudence applies moral rules to human acts, considered in the concrete. And since human acts, considered as free acts, are contingent and variable, prudence must be a habit distinct from the habit which sets forth moral rules in the universal, i.e., from the science of moral. For the application of moral rules to matter so contingent as a free act provides a special difficulty to which there must correspond a special and distinct habit.

(Thomistic Philosophy § 180, 2º)

Finally, Theology supplies juridical principles that operate in a similarly internal way because it teaches the content of the positive divine law, which can also be understood as an act of legislation. As St. Thomas explains, the Gospel promulgates a law (i.e., an act of legislation) properly speaking, containing prohibitions and permissions, because while “the kingdom of God is internal righteousness, peace, and spiritual joy, all external acts that are incompatible with righteousness, peace, and spiritual joy, are in opposition to the kingdom of God; and consequently should be forbidden in the Gospel of the kingdom” (ST I-II, q. 108, a. 1 ad 1). Theology teaches the true meaning of God’s utterances and decrees in Scripture and Tradition, and, where proper and applicable (such as in canon law, but not only there), Jurisprudence resorts to such truths as to a source in its determination of what is just and unjust in any given instance. They are directly applicable juridical principles borrowed from another science.

III.

The above illuminates the meaning of Ulpian’s definition of Jurisprudence, which we began with: divinarum atque humanarum rerum notitia, iusti atque iniusti scientia. The definition has two parts: a notitia, an “awareness” or “acquaintance” with all things human and divine, and a scientia, a “science” or “knowledge” of what is just and unjust. While notitia suggests mere familiarity with something, scientia — as Grenier has it — is “a logical artifact which consists in an orderly classification of concepts which constitute the definitions, divisions, and argumentations of some scientific matter” (Thomistic Philosophy, § 176).

A jurist must not only be versed in his particular science, with its own proper methods, modes, categories, and definitions; he must also be conversant in the other sciences that direct and feed his own. These are the sciences of all things human and divine: Philosophy, Politics, and Theology.

Juridical education in the Middle Ages reflected this understanding of the order of human knowledge by requiring students to prove mastery of Philosophy and the liberal arts — usually, by completing a course of study at a Faculty of Arts — before they could attend a Faculty of Law (a requirement also traditionally imposed on aspiring theologians and physicians). Thus, before they ever opened the Corpus Iuris, students had (it was assumed) already absorbed the entire Aristotelian corpus, including, crucially, a rigorous study of Logic, Physics, Metaphysics, Ethics, and Politics.

By contrast, modern legal training and scholarship mostly prescinds from the question of the order of the sciences or the position of Jurisprudence within it. In its place (if the issue even arises at all), one can discern either a generically modern or a generically post-modern or Marxist instinct. According to the modern view, based on something like the old fact-value distinction and a Cartesian emphasis on the relevance of “method,” mathematics and natural science are deemed the only genuine “sciences,” while the rest of human knowledge, including law, is viewed as less serious the more distant it is methodologically from them. The post-modern or Marxist sense suggests that “science” and “knowledge” are fatally determined by external material conditions and thus lack an intrinsic order of any kind.

Thus, law is normally no longer taught as the object of a true science but rather of a technique. To be sure, the concept of the “sources of law” remains relevant (referring chiefly to legislation and judicial precedent), but the study of sources has been reduced from the divinarum atque humanarum rerum notitia to a mere verification that the applicable legal authority is “valid” and “in force” according to some external and self-justifying procedural criterion. In other words, positivism. At the core of this technical education is something called “legal reasoning,” a series of logical and rhetorical tools and habits that teach the student to grasp the relative merits of a legal argument and allow him to craft a defense of any possible position under color of law. The technique claims to acknowledge no epistemological superior beyond bare consistency and is thus purportedly neutral with respect to the sources of law and the factual patterns to which they may be applied. The aspiring lawyer must, it is asserted, learn to “give an argument” for any position.

One could understand the theories of originalism and textualism as attempts to limit the scope of what can be argued under color of law by tethering it exclusively to the texts of legislative enactments. As U.S. Supreme Court Justice Neil Gorsuch has put it, “only the written word is the law.” However, the Supreme Court judgment from which that quote is taken already shows that originalism and textualism are not capable of providing any stable or even discernible limit to what can be called “law,” because the text can be read to hold virtually any meaning. The merely technical view of the science of Jurisprudence has not been overcome.

Only a conception of Jurisprudence as anchored in true, objective knowledge about the world and about God, about human nature and the common goods to which it is called, a Jurisprudence that has “awareness of divine and human things” can consistently and honestly orient the work of the law to true human flourishing. It is not a matter of “using” or “employing” the law as a tool for our view of the common good, or even for the true common good, just as others might use or employ it as a tool against it or in service of some other perceived good. It is a matter of abandoning the view of the law as a “tool” altogether (or, at least, to relegate it to secundum quid predications), by reclaiming the view of Jurisprudence as structurally ordered to the principles of the common good. On this view, anyone who practices or studies law unmoored from the common good is simply not doing it right as a matter of scientific rigor. This is the understanding of juridical thought left to us by the classical and Christian tradition. It illuminates what its keepers meant when they held that the real end of a jurist’s officium, his professional desideratum, is to know, scientifically, how “to give to every one what is his due” (Digest I, I, 10).