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Logocracy - Chapter 2: The Laws of Nature and Natural Law
The need for a new, objective basis for law in line with moral values
The law itself often gives rise to unlawful behavior. Therefore, the effects of a legalistic conception of life, or the domination of lawyers in social life, must always destroy real life.
In this chapter, Lobaczewski outlines the legal philosophy at the root of logocracy. He describes the varying bases for law, its justification and development, and the problems inherent in certain approaches to law, including that of an overly legalistic society (like the USA).
He proposes a new, or refined, basis of law, more universal in nature and based in what we actually know about human nature. But this runs up against a problem, which itself suggests a solution. A proper understanding of human nature in all its variety would imply a law that treats virtually everyone on the level of the individual, which is impractical for any legal system. The solution is that this philosophy of law should not be institutionalized, but rather internalized—a way of thinking rather than a way of litigating.
Legal thinking and structure should be stratified, with the most general principles at the top, and with granular legal regulations at the bottom. This will take the form of 1) laws of nature, 2) natural law, 3) positive law, and 4) specific regulations. This philosophical justification and framework would form the first part of a logocratic constitution, the second part of which would lay out specific rights and obligations based on part one.
Such law, accepting to a practicable extent the psychological differences that exist between human beings, would prove to be a moderating factor with respect to some overstrict traditions, but it could not be too liberal. The law of the human species, which lives eternally in a social collective, must oblige respect for the person of the other, for the social order, and must contain certain active obligations.
While this approach will require a new approach to law, including a new style of legal education, Lobaczewski does not think it should be revolutionary. It should take into account existing laws and moral principles, which have the value of generations of experience behind them. But the general principles and their influence on law should be an ongoing project, perhaps taking a generation to put into adequate shape.
The eternal dilemma of the philosophy of law—whether law should result from custom or whether law should create custom—seems increasingly irrelevant in the light of the contemporary development of knowledge and reflection, as well as the experience of some countries. The contemporary evolution of law aims at basing it on premises that are more durable and more universal than the customs and moral tradition of a given country or civilization can provide. We are, however, still quite far from achieving such a goal.
The laws of Christian nations have adopted the principle of the supremacy of moral values over the rule of law. The laws of pathological totalitarianisms radically rejected this principle, placing the rule of law above these values. The mere invocation of moral values was punished. However, even in some democratic countries, in practice we have a situation where the law shapes morality and has become the basic measure of human relationships. This causes a moral devolution of society; life becomes burdensome and full of stress.
For the law represents certain necessary requirements, designed primarily for those people who are not guided by deeper moral values and who do not feel an obligation to act for the good of others. Modern law also assumes that people are sufficiently similar to one another to be subject to the same rules. This is unrealistic in light of centuries of experience and modern psychology. The law itself often gives rise to unlawful behavior. Therefore, the effects of a legalistic conception of life, or the domination of lawyers in social life, must always destroy real life. This state of affairs threatens the development of ideas aimed at a violent change of such social relations. Alongside such law there is a second—unwritten but real—law, which already has the characteristics of a higher law.
There are prudent people who call for the restoration of the aforementioned principle of the priority of moral values over rules of law, and this is an essentially correct but somewhat atavistic path. When, on the one hand, we have experienced the reverse of such a state of affairs and, at the same time, the progress of scientific knowledge opens up the possibility of an ever better grasp of universal values, a return to the old criteria of law would already be anachronistic. Therefore, having bounced back from the bottom, we should reach for new life. It is necessary to make use of the achievements of knowledge, even if only of recent times, in order to create a philosophy of law less dependent on ancient models, but based on contemporary knowledge of the laws of nature and the values resulting from them. Only such a law could fulfill the contemporary requirement of universality of its foundations.
If, however, we attempted to create a new law that would impose far-reaching requirements on human beings, along with various active obligations, and that would take into account the mental diversity of people, then we would have to write a separate code for almost every person. It would then be necessary to appoint a substantial body of citizens to examine and judge the conduct of others. Therefore, such a law can only exist in the sphere of man’s moral convictions, and the theory of law must be thought out in such a way that the possibility of creating such a mature individual law does not encounter difficulties from written law and public institutions.
The law can never be perfect, and neither will the law of the new and better social system we intend to design. But such law should be more just than the old one, because it should be based on a richer understanding of the laws of nature and of human personality, and on a more mature philosophy of it. This in turn requires a formulation of what, to the best of our knowledge, we can recognize as the laws of nature and as the natural law derived from them.
For nature has its eternal laws, represented for us above all in living nature and in our human personalities. The more we come to know these laws through experience and scientific inquiry, the more clearly we realize that they lie at the foundation of moral custom and law. They are also the common denominator of various civilizations and legal traditions, which arise from a similar human nature everywhere. An ever progressing and more subtle knowledge of the properties of this nature already allows us to justify in natural and psychological terms the sense of certain beliefs that we previously knew as moral, moral, or religious precepts. Similar procedures are now often part of psychotherapy.
The advances in biological, medical, and psychological knowledge of recent years, especially in the field of psychopathology and the corresponding methods of investigation, have also opened the way to inquiries into the nature and genesis of evil. For in those processes which give rise to human harm, various psychopathological factors are generally present. This will therefore be presented in necessary shorthand in Chapter IV, and the theoretical deepening of the issue is a matter of time and work. Such advances in knowledge will make it possible in the future to use new means of counteracting the genesis of evil and eliminating its effects on a social scale. It also extends our ability to learn about the laws of nature and to formulate judgments about what should be considered natural law.
People who have rejected moral traditions as being mainly justified by the messages of their abandoned religious convictions seem, up to a certain point, to feel liberated and to be content with the minimum requirements imposed by modern law. However, they then also become adept at circumventing the provisions of that law. Meanwhile, it turns out that the laws of nature have not ceased to exist and act, and the consequences of such attitudes turn out to be painful not only for others, but also for themselves. Learning about the laws of nature, especially those which govern the processes of the origin of evil, leads, as a rule, to the confirmation of the rightness of the eternal moral messages, and thus of the authority of those who proclaim them.
These eternally existing laws of nature have been culturally updated in different countries and times, giving rise to customs, moral beliefs, and legal doctrines. The human mind then too easily detaches these secondary creations from their more difficult-to-recognize natural substratum. This leads to ignoring what is primary and essential. Already with the present state of knowledge of the laws of nature, it seems more appropriate to reverse this state of affairs by valuing less these varieties of cultural actualizations and by trying to find a foothold in phenomena occurring universally and permanently, in the laws of nature, which are becoming better known. This task will become increasingly feasible as knowledge of these laws becomes deeper and more subtle. In this connection, the gap that still separates natural and spiritual cognition and renders our moral cognition largely irrational will gradually close.
Discovering and formulating principles of natural law, skillfully deduced from the knowledge of the laws of nature, becomes a matter of time and work. This path has already been practically opened, on condition, however, that we make use of all available data presented objectively, without overemphasizing some and undervaluing others. In view of the present deficits in our knowledge, we cannot also disregard the values handed down to us by the moral tradition which bears at least the experience of many generations.
We shall call this transcultural basis of morality and law natural law. It should gradually become the common denominator of the various legal traditions and moral convictions, which today are usually based on different traditions and philosophical or religious doctrines. Such law, accepting to a practicable extent the psychological differences that exist between human beings, would prove to be a moderating factor with respect to some overstrict traditions, but it could not be too liberal. The law of the human species, which lives eternally in a social collective, must oblige respect for the person of the other, for the social order, and must contain certain active obligations.
It should also be noted that the idea of natural law derived from the laws of nature is somewhat present in the philosophical and religious beliefs of many nations. Confucius arrived at it, it is developed in Buddhism, and we encounter it in other Eastern religions.
In Christianity, the development of the concept of natural law has its ancient roots in the works of St. Thomas Aquinas, where it reached maturity. Assuming that the laws of nature derive from the Creator, he derived the main premises of such law, and he did so in a noble logical argument. However, he was working six centuries before the development of psychological cognition in our culture. He himself did not have the above-mentioned talent for understanding psychological realities, which is a prerequisite for the best achievements of social thought. Therefore, in order to move from philosophical presuppositions to solutions in the areas of moral practice and the organization of the Church, Thomas accepted common sense as a second necessary basis for reasoning. He did not, therefore, save his work from the now well-known errors of the common psychological worldview, and he also assimilated many of the archetypes current in his time.
So we assume that since the laws of nature exist and operate, natural law follows from them. We only lack a sufficiently comprehensive description of them. But we know these laws sufficiently, and we will know them better and better. We already have the possibility of appealing to natural law as a criterion, both in general solutions and in individual cases, and this will appear many times in our further considerations. We can rely on it to build a social system that is better than any known in history or that exists today. In the present state of knowledge of the laws of nature, however, we must reckon with the possibility of differences of opinion in these matters or of making mistakes. Therefore, we should accept the experience of the history of our nation and other nations with the benefit of hindsight, but interpret it in the light of contemporary objective cognition.
Natural law will in time become an increasingly strong theoretical basis for modern solutions in the sphere of specialized law and social institutions. It should become a criterion shaping the systems of various nations and civilizations, uniting the societies of the world, something that could not be ensured by the models of European legislation. Nations or social movements that oppose this current trend of history will come into conflict with other nations, which unfortunately threatens the modern world.
Thus, a certain gradation of law emerges in the following order: laws of nature—natural law—positive law—specific regulation. The law of the lower category should not come into collision with the higher and more general law. In spite of such a refined base of criteria, however, positive law must in part retain its regulative character. It establishes rules of conduct by means of a necessary classification of phenomena, always to some extent conventional or artificial, and therefore it cannot be a perfect solution. As a result, every law proves defective or harmful in new or extreme situations created by life, and which the legislators were not able to foresee. A new and better law should reduce such defects to a minimum. For if the legal classification proves insufficiently clear, there will be recourse to a higher class of law. The new law will not, therefore, be able to pay tribute to the Roman principle of “Dura lex set lex” (“the law is harsh, but it is the law”). If the law were to lead to conduct that was injurious, then common sense or a scientific understanding of the issue in the light of natural law will be appealed to. The principle “Lex non possit nocere” (“may the law do no harm”) can be adopted. Modern “common law” contains similar elements. Therefore, positive law based on the above assumptions, as subordinate to the laws of nature and natural law, will have to some extent a weaker regulative power than is attributed to modern legal systems. At the same time, it will derive new power from the knowledge of laws of a higher category.
The basic provision of this gradation in the structure of law should become the constitution of the country with the proposed better system. It will contain a short preamble, referring to the Creator of the laws of nature, emphasizing the main principles of such law and locating this work in historical time. The first part, declarative, will formulate the philosophical and moral principles of the new law and system, deriving them from the laws of nature, and will give a concise description of what is to be regarded as natural law. The second part of the constitution will be, in form and content, an act of real law that establishes the rights and duties of citizens, and the principles of state organization. The revision of the first part, usually to better capture these fundamental truths, will be a lengthy scholarly process. However, the relevant assumptions enumerated in Part One will allow for relatively easy improvements to Part Two. Such amendments will always be able to be developed, and then interpreted, in the light of Part One representing a higher class of law. In the conception of such a better system presented in the following chapters, the institution of a permanently acting constitution is introduced, which will make the constitution a living law, capable of evolving in historical time.
The transition from present law to more modern thinking, what might later be called a “revolution” in the field of law, cannot take place by revolutionary methods. General rules could be developed soon after the public approves the new system. But the traditional rules of law would have to remain in use for quite a long time, although they would be modified by the general philosophy. Indeed, a complete overhaul of the law would require the efforts of at least one generation of people adequately prepared scientifically.
The beginning of such a transformation should be a fundamental reform of legal studies. They should provide a philosophical, biological, medical, and psychological basis for an objective understanding of man and society. The future legislator should see real people and social issues, not “subjects and objects of law” as required by the old education.
In countries where, until recently, the power and organization of mentally aberrant persons prevailed, the study of law has degenerated to a greater extent than the natural sciences. In any case, therefore, they must be rebuilt from scratch, and unfortunately with a deficit of adequate scientific personnel. In such conditions, however, the initiation of a new style of legal education would not be a much more difficult task than the reconstruction of the old one, which is already outdated. One can also point out that, in a certain academic isolation, similar ideas and aspirations are not alien to some scholars in our region of Europe.
Note: This work is a project of QFG/FOTCM and is planned to be published in book form soon.