THE “LEX NATURALIS” BY ANOTHER MEANS?

Remarks on a Thesis of Cristóbal Orrego

The New Digest is pleased to present this guest post by Arturo Salazar Santander. Prof. Salazar Santander is Professor of Roman Law (Universidad Finis Terrae, Chile) and Doctor Iuris Candidatus (Pontificia Universidad Católica de Valparaíso, Chile).

In this article, I will use the Latin denominations of Lex (Ley) and Ius (Derecho), because of their more precise meaning in relation with the concept of law and to avoid the confusion between Lex Naturalis and Ius Naturale.

Then, let’s start. Some years ago, the Chilean professor of Juridical Philosophy and Natural Law, Cristóbal Orrego, published a paper in Spanish first and then in English¹ which states the following thesis: In contemporary analytical jurisprudence, many important theses of the old Natural Law concept have been recovered for juridical thinking (Orrego, 2005, p.75).

The main theses recovered would be:

1) the definition of the Lex as an “act of the reason”.

2) the immediate legal force of the Lex Naturalis principles.

3) the concurrence of the Lex Naturalis and the Lex Positiva in the juridical deliberation and the adjudication.

4) the non-binding force of unjust lex.

In this essay, I will focus on points 1 and 3. Points 2 and 4 will not be discussed but in the conclusion, they will be addressed at some extent.

1. Lex as an act of the reason

Orrego asserts the classical Thomist doctrine of the Lex as an act of the ratio imperans which is addressed to the reason of the subjects and constitutes in their deliberation “a rational guidance to the action” (Orrego, 2005, p.76). This contrasts with the tradition of legal positivism and analytical theory of law, from Bentham and Austin, which thinks that the Lex is an act of the will of the superior, imposed in the inferior with the menace of a sanction.

This is the “classical” framework of modern legal science, and not only from Bentham and Austin, but even from Francisco Suárez S.J., at least, who changes the Thomist tradition of Law and imposed the voluntaristic approach to the Law in his famous De Legibus atque Deo Legislatore (1612).

But Orrego says, that this positivistic-voluntaristic concept was criticized and rejected not only by “outdated” natural law theorists, but by…H.L.Hart himself! Hart, in the position of Orrego, sustains that law is not a set of rules backed by sanctions, as Kelsenian positivism teaches, but “reasons for the action”. Indeed, he quotes “The Concept of Law”, (Hart, The Concept of Law, Oxford, 1961, p.38-39, 85, 111-114, 253, 261) to sustain that claim, but Orrego doesn’t descend into details. Here we can analyze some of the quotes brought by Orrego and then make our conclusion based upon classical Ius Naturale. In order not to extend the essay beyond reasonable, we will focus on two passages.

The first one (Hart, 1961, p.38) is related to the criticism that Harts directs against the reduction of the legal rules to a single form, which consists in rules protected by sanctions, which distorts the different social functions of different types of legal rules. Then, Hart, specifically speaking about criminal law as the most extreme form for this “imperativistic” theory (or “classical” positivism), says that “the characteristic technique of the criminal law is to designate by rules certain types of behavior as standards for the guidance either of the members of the society as a whole or of special classes within it: they are expected without the aid or intervention of officials to understand the rules and to see that the rules apply to them and to conform to them. Only when the law is broken, and this primary function of the law fails, are officials concerned to identify the fact of breach and impose the threatened sanctions” (Hart, 1961, p.38). He even later that “the members of the society are left to discover the rules and conform their behavior to them; in this sense they apply the rules themselves to themselves, though they are provided with a motive for conformity in the sanction added to the rule” (Hart, 1961, p.38). Indeed, the sanctions are “indispensable but they are ancillary”. And in the next page he even says “the principal functions of the law as a means of social control are not to be seen in private litigation or prosecutions, which represent vital but still ancillary provisions for the failures of the system. It is to be seen in the diverse ways in which the law is used to control, to guide and to plan life out of court” (Hart, 1961, p.39).

Hart doesn’t say “reasons for action” here, but instead he speaks of “standards for the guidance” which is the same. This is the Hartian “internal point of view”, reasons for the action contained in the legal order. This seems a powerful argument on behalf of the law as a order of reason, following Aquinas without =Hart realizing it himself — even a dismissal of the positivistic and moreover, voluntaristic theory of Lex from Suárez to Kelsen. Orrego further quotes Hart saying that “the rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it” (Hart, 1961, p.85). In other words, the matters which the Lex pursues, are not just blind mandates of the sovereign, but things which are important and valuable for the social life flourishing, which is to say, an order of reason and “reasons for the action”.

Until here we don’t have really arguments which could dismiss the claim of “Lex naturalis by another means”. But are we really in front of a subtle eternal return of Lex Naturalis? I doubt it. Let’s listen to Hart again, in the same chapter, when he talks about the law as union of primary and secondary rules, and explains what is an obligation. Hart doesn’t escape from the normativistic concept of law and this is the whole problem: “it will be recalled that the theory of law as coercive orders, notwithstanding its errors, started from the perfectly correct appreciation of the fact that where there is law, there human conduct is made in some sense non-optional or obligatory. In choosing this starting-point the theory was well inspired, and in building up a new account of law in terms of the interplay of primary and secondary rules we too shall start from the same idea” (Hart, 1961, pp.79-80).

Here we have reached the point of this essay. Most of the modern movements of “return to Natural Law” are flawed because the serious difficulty of modern legal science to escape from normativistic views of Law. Indeed, the same word “law” creates confusion, because in English it’s the same to say Lex and Ius. Hart maybe can conceive the legal order as reasons for the action or even as a rational order, following without recognizing the Thomistic tradition. He does a good service in dismissing the Austinian-Kelsenian views of legal sanctions and “hard” positivism. But the “Lex Naturalis by another means” is illusory. Hart himself in the last quote says that he starts from the modern and normativistic concept of Law. The entire legal order is just the guidance of human conduct, by a set of rules. The law consists not just of “primary rules”, but also “secondary rules”, which are just human constructions and indeed, conducts, although formulated in a more sophisticated way.

Indeed, we must ask here, why do we talk about Lex Naturalis and not Ius Naturale? This is an extremely important point, and the entire problem is here. But we will leave it for later. We need to address point 3 of the topics brought by Orrego.

2. Lex naturalis, Lex positiva, and juridical reasoning

Orrego explains the final objective of classical positivism, “to ensure the order and security through obedience to common norms for all, clearly stablished, above the different religious and moral beliefs” (Orrego, 2005, p.81). This supposed a fundamental connection between “the description of the law by the juridical science and the duty of following it by the citizens and functionaries, specially by the judges” (Orrego, 2005, p.81). In classical positivism, the “descriptive” theory of law cannot be confused with morality “independent of positive law”, this would be a “confusion between positive and natural law” and even could call into question the supremacy of the positive law as a common norm above the disagreements in the natural law (Orrego, 2005, p.82). But the author claims that this is exactly what contemporary positivism has done.

From Hart’s dictum “this is law; but it is too iniquitous to be applied or obeyed” (Hart, 1961, p.203), to following authors as Raz, there has been an increasingly disunion between law and morality (or positive law and natural law, as Orrego says). The result, a dislocation between the descriptive theory of law and the normative theory of adjudication. Indeed, Joseph Raz considers that law is only those reasons for the action whose existence and contents can be stablished through “social facts” solely, without the recourse of moral argumentation (Orrego, 2005, p.84). But the point here, is that judges not only appeal to “law” strictly taken, but to moral considerations, beyond the law (Raz, Joseph, The Concept of a Legal System. An Introduction to the Theory of Legal Systems, 1980, pp.214-215).

Dworkin is not quoted in the article but we can add some remarks briefly, strengthening the point. His famous distinction between rules and principles has been very influential and helped to dismantle the hard positivism, especially in constitutional thinking. Rules are based on a logic of all or nothing, whereas principles don’t establish a direct connection between the facts and juridical conclusion; they typically Require a comparison of conflicting principles. The principles need to be balanced in relative value in the determined circumstances. The rules would be zero-sum and not balanced, one prevails and the other one not. (Dworkin, Ronald, Taking Rights Seriously, Cambridge, Harvard University Press, 1977, pp. 24-27). These principles are in great measure of a moral nature, so the hard separation between law and moral is undermined. We can’t enter here into more detailed issues in relation to this topic because we need to answer the question we formulated.

But, are we here in front of the return of juridical classical reasoning, the iurisprudentia with another name?

3. Rediscovering “Ius Naturale” and the Iurisprudentia as a method

Until here we have talked about Lex Naturalis, and not Ius Naturale. This is a point which until I know, very few academics have remarked, even in the Thomistic tradition, the confusion between Lex Naturalis and Ius Naturale. One of the few scholars who explains this is the Spanish professor, Alfredo Cruz Prados, in his recent book “Sobre la realidad del Derecho. Filosofía jurídica” (About the reality of the Law. Legal philosophy), EUNSA, 2021. Cruz Prados explicitly says that even in the natural lawyers who react against positivism, almost all those reactions have been in the ground of modern normativistic legal science, so most of the “returns” to Natural Law have been to its rationalistic and modern versions (Cruz Prados, 2021, p.207). The idea behind it sustains a normative and rational legal order beyond the Polis, universal, immutable, which is possible to separate from Lex positiva, and also its basis, a kind of “law in the skies”. It has become indeed a moral order (Cruz Prados, 2021, p.207). This explains that most of natural lawyers center their attention into the Lex Naturalis and even in the human nature. Always, it refers to rules of conduct, legal norms that regulate human behavior.

But in Classical jurisprudence, the Ius, was a res, a thing, a very concrete thing, that exists between different subjects, and this thing is iusta, because it’s adjusted and proportionated between one of them, the res specific to each one. This thing can be material or immaterial, in the whole spectrum of possibilities. Not a facultas, neither lex as the primary meaning of Ius, but res, and by analogy, and only as they would refer to a res, they can be meaning of the Ius (Cruz Prados, 2021, p.35). The entitlement, the titulus, is the reason of the attribution of something as own, ius suum, and it’s the position that such subject has respect the other one, in the social relation, in the Polis (Cruz Prados, 2021, p.45).

Paraphrasing Heidegger, who talked about the “Forgetting of the Being” (Seinsvergessenheit), of Iusvergessenheit, we might call this the “Forgetting of the Ius”. The Roman and Medieval Jurisprudence, and the Mos Hispanicus, the Hispanic Jurisprudence of XVI century and early Baroque period, still worked in this methodological framework. But it was forgotten, even attacked, by the modern rationalistic and previously, humanist and voluntarist jurisprudence.

In the European and Latin American context, only Michel Villey, and following him, Alejandro Guzmán Brito in Chile, Juan Vallet de Goytisolo, Alfredo Cruz Prados and Francisco Carpintero in Spain, have understood that the classical Ius Naturale is not the Lex Naturale. This would need not just an essay, but entire books to explain properly, but I can give here some account of the question. If we review the Summa Theologiae of St.Thomas Aquinas, we can note that there is a huge difference between the place of the Lex Naturalis and the Ius Naturale. The first one is in the Treatise of the Law (Lex), S.Th, I-II, q.91 and following, where Aquinas asks if there is in the man a Lex Naturalis. This is very different from asking about the Iustitia, in the Treatise of the Justice, S.Th., II-II, q.57 and following, where Aquinas asks if the Ius is properly divided into Natural and Positive Ius. The first question is about the relations of different kinds of theological-moral laws, such as Lex Aeterna. The second, is about the source or cause that something is Ius, or the just respect someone, if it’s always the convention or lex, or there are some things which can be Ius “ex natura rerum”, and not in reason of an agreement, convention or norm, human or divine (Cruz Prados, 2021, p.210). Indeed, Cruz Prados even states that the human nature is not a title of Ius Naturale, not the human abstract nature, but the natura rerum, the concrete relationships of beings and things, inside the Polis, the number of social relationships with its concrete real world (Cruz Prados, 2021, p.223).

So when Hart, Dworkin or Alexy relativize the strict legal positivism of Kelsen, they don’t escape from normativist postulates, they just attenuate them but still reduce the Ius to the Lex. And the Ius Naturale also is impoverished when it’s understood as a moral “normative” order. At least in this point of Hart or Dworkin, we are not witnessing a return of classical Jurisprudence, but only the “eternal return” of XVII century Rationalistic Natural law.

Bernardino Bravo Lira, from the point of legal history of the Hispanic world, has stated this process as the modern transformation of the Ius into the Iussum, from what is iustum to the legal mandate, the iussum. The old search of the Iuris Prudentia, the search of the Ius, which is contained in the Natura Rerum, is abandoned and replaced by the strict rationalistic legality (Bravo Lira, Bernardino, 2021, “Arbitrio judicial y legalismo. El juez frente al Derecho”, en “El juez entre el Derecho y la ley en el mundo hispánico”, 2006, LexisNexis, pp.372-373). The search of the aequitas was the main task of legal reasoning in pre-modern era, this was the ipsa res iusta of Aquinas, in the concrete case, the Ius, and this can have a Natural source or a Positive one. The problem of Ius naturale is to determinate which source has the Ius of the Polis, the nature of the things or something which has been agreed upon.

This is not the method of the Romanistic Jurisprudence, the Iurisprudentia, which was called by Michel Villey, following Aristotle, the via dialectica, the dialectical method of juridical controversies, and contraposition of opinions under the authority of the judge. Such was the foundation of Roman-Canonic procedural law but also of the law of the jurists in the medieval age. I think, in answer to the second question, that the ponderation method of Dworkin and maybe even Alexy, have more close parallels to the revival of Natural Ius than the first question. This method supposes a reasoning which is called topical, in words of Theodor Viehweg, the theory of the Aristotelian topos, as source of legal reasoning. This could be the most important practical consequence of a true return to Natural Ius (Cruz Prados, 2021, p.376-397).

4. Conclusion: What about the Moral and Law and the Bonum Commune?

I have not addressed the points 2 and 4 because in the traditional Aristotelian-Roman concept of Iurisprudentia, the issue of morality is not the main problem. Even in Aquinas morality is neither normativistic neither legalistic, but a moral of the Bonum and virtues (Cruz Prados, 2021, p. 144). But in some way, this goes further than the law, which has in this model, more autonomy from morality than is usually recognized by normativistic natural lawyers. Natural Ius is a thing of method, not of prescriptive morals, they are relevant as a general political framework(iustitia legalis) which makes connections between law and morality.

But this introductory essay would be incomplete if I don’t say anything about Bonum Commune. Bonum Commune is the keynote of any classical concept of law, the foundation is the Polis and the social life that has things “attributed”. The way of achieving the common good is the law, with the distribution of advantages and disadvantages, and they reflect the participation of the subject in this common good. In the forgetting of the Ius, common good has also been forgotten, but it’s a sign of hope that common good constitutionalism is taking up the task again, for the development of a consistent legal theory of the common good.

1. Orrego Sánchez, Cristóbal, “La ley natural bajo otros nombres. De nominibus non est dispuntandum, Anuario de Filosofía Jurídica y Social, Buenos Aires, 2005, pp. 75-90; “Natural Law Under Other Names: De nominibus non est disputandum,” The Americal Journal of Jurisprudence, Vol.52, Issue 1, 2007, pp. 77-92.