Law and Hope

Jessie Allen, School of Law, University of Pittsburgh

Introduction.  Section the Second.  Of the NATURE of LAWS in General.

In this section, Blackstone gives his famous definition of law:  “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”  Like in the first section, it’s not clear here whether Blackstone thinks he is describing “positive law” — i.e., laws as some government’s commands, right or wrong, good or bad — or “natural law” — i.e., laws as timeless principles of morality.   Basically, if the rules being prescribed are just whatever that “supreme power in a state” happens to think is right or wrong, then we’re looking at positive law. But if the supreme power somehow knows how to command what is eternally, objectively right and wrong, or if somehow the very act of commanding makes government rules objectively right and wrong, that’s natural law.

The positive law v. natural law dichotomy is a conceptual staple of contemporary legal education.  Blackstone is usually lined up on the natural lawyers’ side,  as a defender of the timeless justice of the English (and, by implication, the American) legal system.  The most famous legal positivist of all time, Jeremy Bentham, a contemporary of  Blackstone, reviled the Commentaries on this ground.  On the other hand, some people stress Blackstone’s description of law as “prescribed by some superior” and see the natural law discussion is a knee-jerk genuflection to 18th century dogma.  Stanley Katz, who wrote the introduction to the edition of the Commentaries I am reading, says Blackstone’s legal theory gives natural law concepts “about the same importance that Newton accorded to God in the operation of the physical universe.”

To me Blackstone seems genuinely ambivalent. There’s too much talk about “immutable laws of good and evil”  to be discounted.  You can see why people cite him as an important influence on America’s founders. All three of the Declaration of Independence’s ‘self-evident’ entitlements appear here as “natural rights” established by God and nature:  life, liberty and the “paternal precept ‘that man should pursue his own happiness.’”  But there are also times when he completely undercuts the the notion that law has any necessary connection to morality.   At one point Blackstone approves the notion that “human laws are binding upon men’s consciences.”  But then he proceeds to argue that principle right out of existence.  He explains that laws that instantiate timeless moral rules don’t actually bind our conscience — it’s the timeless moral rules themselves that do that.  But, he says, we’re not conscience-bound to follow laws that don’t instantiate timeless moral duties, either, because, well, they’re only laws, not timeless moral duties.  After which, it is less than clear how any laws bind anyone’s conscience.  In fact, in an aside, Blackstone actually anticipates Oliver Wendell Holmes’s ultra-positivist view of legal prohibition as a choice:  “either abstain from this, or submit to such a penalty.”

Reading Blackstone on the heels of the recent mind-blowing American presidential election makes me think that the perennial tension between natural and positive law reflects or shadows another persistent ambivalence in American culture and politics: the role of religious faith in general.  The incredible course and outcome of Barack Obama’s presidential campaign sure set that one up front and center. There was the story of Obama’s turn from his secular, relativist mother’s outlook to Christianity, and the drama of his identification with, and ultimate disavowal of, his religious mentor.  And there’s the speaking style inflected with Christian oratory, and the appointment of a team of advisors whose diverse religious beliefs and backgrounds are just that — backgrounds — for their shared dedication to  professionalism and their glowing educational achievements in the secular church of the Ivy Leagues.

As I was flying home the day after the election — was that really just three weeks ago? —  I was looking at one of those beautiful red and blue pictures of Obama’s face emblazoned with the campaign’s simple slogan:  HOPE.   And it occurred to me that “hope” was an oddly secular, ephemeral concept for a candidate who wanted to emphasize his belief in enduring American values and Christian faith.  Why not, after all, FAITH?  Beside that solid and enduring concept, “hope” seems almost flimsy.  But then, doesn’t hope’s suggestion of a changeable, dynamic, and more risky future finally draw upon the values that Obama and many others have wanted to identify as foundationally American?  People who hope are less content, less satisfied, more restless than the faithful.   Faith is for the serene, for folks who mostly accept things as they are — even if it is a faith that change will come, growing out of what already is.

Hope is for the ones who are dissatisfied with the world as they find it.  Hope may unite people, but fundamentally it involves alienation.  To really hope for something entails a loss of security and the comfort of belonging where we find ourselves.  If you have faith that things will change, in some way you have faith in the way things are — because you believe they can change.  Hope in some way, however benign, repudiates the present world and dares to demand something altogether different, based not on belief but on desire.  And isn’t that, after all, what Blackstone’s mixed up natural law/positive law argument is wrestling with — a struggle between belief and desire?