1This essay revolves around some of the main concepts in Cristina Redondo’s book Positivismo jurídico “interno”. My observations will especially focus on Redondo’s use and the practical relevance of the term “natural law”. It will not just be about observing (and eventually objecting) to the use of the term. Otherwise, my own observations and objections would be subject to a fair, nominalist criticism: De nominibus non est disputandum.1 In other words: What does it matter if what she calls “natural law” I and others call differently? The difference in names only matters when different names entail conceptual mistakes. When this happens there is not just a terminologycal difference, there is also a conceptual difference, one involving different realities.
- 2 Redondo 2018: 9. I like Redondo’s choice and use of the term “interpretativist”. From an aesthetica (...)
- 3 Redondo 2018: 9.
- 4 Finnis 1980/2011: 73-75.
- 5 Aquinas, Summa Theologiae, I-II, q 90 aa 1-4.
- 6 Redondo 2018: 13 y 21.
- 7 See, for example, Legarre 2006: 1068.
2In the Preface, the author announces that her brand of positivism (which she names “normativistic” or “internal” positivism) will strive “to combat an anti-positivistic approach, be it a natural law approach or an interpretativist one”.2 Redondo’s positivism will also contest “a purely empiristic [positivistic] view, such as the one suscribed by sceptical positivism”.3 Even though the preceding statement is not relevant for my purposes, given the natural law perspective of these remarks, it is worth noting that that statement would probably place Redondo on the same shore of the divide that separates positivism from true natural law theory, for the latter is also critical of all forms of scepticism.4 Indeed the particular brand of positivism Redondo defends holds the knowledge of legal duties as possible, against sceptical positivism. This constitutes common ground between her theory and natural law theory because her thesis relies on the possibility of knowing and following rules, and so does the legal philosophy of Thomas Aquinas, the quintessential leader of natural law theory.5 Incidentally, Redondo calls “cognitivism” this possibility of knowing and following rules.6 More than one contemporary natural law thinker would not object to Redondo’s use of this neologism.7
- 8 In the symposium on internal legal positivism held in September 2019, at which this paper was origi (...)
3As a preliminary remark, it should be clarified that Redondo’s work is foreign to the natural law tradition and she never claims otherwise.8 It would therefore be asking too much —it would be unfair to ask, to use an adjective dear to the natural law tradition– that Redondo include ample references to the topic that, given my specialty, constitutes the main focus of this short essay. Having said that, and given that she is a learned, honest, and intelligent author, one observes that her work markedly differs from others within the analytical genre where it belongs, and which for the most part seem to ignore natural law altogether.
- 9 The word rightly used by Redondo in Spanish is “iusnaturalismo”.
- 10 George 1992: v.
- 11 Redondo, like several natural law thinkers, calls “cognitivism” the ability of knowing norms, indep (...)
- 12 The adjetive “moral”, in “natural, moral law”, seeks to distinguish natural law from so-called natu (...)
- 13 The English term “natural law” covers, in most contexts, both the Spanish terms “ley natural” and “ (...)
4The first reference to natural law and natural law theory opens Chapter One of the book in the context of her discussion of “duty-expressing propositions. Redondo never defines “natural law theory”.9 However, given that she simply uses the term, it seems safe to asume that she means to use it in the conventional, generally accepted way, according to which natural law theory10 is the philosophical doctrine or school that affirms: (i) there is an objective moral normativity accesible to all, preexisting any conventional or positive order;11 (ii) such moral normativity —usually called, within this school, “natural law” or “natural, moral law”12 serves as a measure and tool for the ethical evaluation of all conventional or positive order;13 and (iii) as such, that measure and tool allows for the moral disqualification of any conventional or positive ordinance contrary to it (to natural law, that is), which does not imply per se passing judgment on the exact consequences of such disqualification in the legal domain.
5With a working definition of natural law theory at hand, we may return to Redondo’s work. When dealing with “duty-expressing propositions” she begins by recognizing that:
The idea that statements such as ‘In Italy it is mandatory to drive on the right-hand side’ or ‘Euthanasia is permitted in the Netherlands’ express propositions that refer to legal duties has been strongly resisted (Redondo 2018: 4).
6First, she claims, that idea has been strongly resisted by realistic or non-normativistic positivism —a brand of positivism different from her; as we know she embraces “normativistic or internal positivism”.14 She calls the several arguments that resist the idea “reductionistic and non-descriptivist” (Redondo 2018: 15). Her first example of this realistic or non-normativistic reductionism is Riccardo Guastini’s position on the validity and existence of legal norms, a position grounded on the logical form of statements. According to Redondo, Guastini provides three arguments against interpreting “deontical” statements as normative propositions (Redondo 2018: 16). These arguments are not relevant for my purposes here, even if I do not doubt their relevance for Redondo’s own line of reasoning. What does matter for my purposes is what Redondo affirms when dealing with the second of those three arguments, because this is when natural law theory comes into play. She then clarifies that, within Guastini’s second argument, for the “reduction” to take place, the existence of a normative statement (such as “’euthanasia is allowed’ is valid if and only if euthanasia is allowed”) must be understood empirically. She adds:
For example, thinking about this same issue in natural law terms, the alluded equivalence would lead us to a very different conclusion. For in that light the existence of a norm would be analyzed in terms of the existence of the moral duty or permission granted by that norm. In other words, the norm “stealing is forbidden” is valid (i.e., it exists) if and only if it is true that morally you shall not steal. This equivalence leads us to affirm that a norm is valid only when the normative proposition referred to a moral fact (the duty or the permission to do or to ommit something) is true (Redondo 2018: 19, emphasis added).
7If this paragraph on natural law did not feature in Redondo’s book, then that absence would not change anything to her main argument, which moves along unrelated boundaries. But given that the paragraph is there, I will strive to analyze it in the light of the already provided definition of natural law, to check if Redondo adequately characterizes the “natural law terms”.
- 15 Hervada 1981: 131-133.
- 16 Finnis comments on the Aristotelian origins of the water metaphor as applied to “analogy”. Finnis 1 (...)
- 17 Finnis 1980/2011: chapter XII, titled “Unjust Laws”.
- 18 Finnis 1980/2011: 11, with reference to “watered-down version” and to “undeveloped, primitive, corr (...)
8Natural law theory does not pose that to be legally valid a norm also ought to be morally valid. According to natural law theory there are two types of law: just law (which is the central case of law)15 and unjust law (which represents a deviant or watered-down version of law:16 a secondary or derivate cognate of the term).17 Both just and unjust law are law, but to a different degree, in a way similar —saving the evident differences— to the sense in which a glass of Coca-Cola and a glass of watered-down Coca-Cola are both Coca-Cola, but to different degrees. Almost that much can be said of legal validity, so much so that Finnis uses the adjective “watered-down” to refer to the secondary or derived instance of law (unjust law).18 For this reason it could be that, in almost the same way as someone might confuse watered-down Coca-Cola with pure Coca-Cola, so might someone have as a legally valid a norm that is morally invalid (even when from the moral point of view that legal validity may be subject to negative (moral) scrutiny). If I may insist one more time with the metaphor, in almost the same way in which watered-down Coca-Cola has something (or even a lot) of pure Coca-Cola, so unjust law has some (more or less, depending on the type of injustice at stake) of the elements of just law. These elements of justice subsisting in unjust law are precisely what justifies our calling it “unjust law”, in a way almost like the way in which that persistent Coca-Cola flavour in watered-down coca-cola justifies our calling it Coca-Cola.
- 19 Aquinas, Summa Theologiae, I-II, q 95, a2, c.
- 20 Aquinas, Summa Theologiae, I-II, q 95, a2, c.
- 21 Finnis 2012: 111-117; Legarre 2012: 103-110.
9Regarding just law—the one that “derives” from natural, moral law: it may be traced to it—, natural law theory affirms that moral principles appear in just law with two different intensities. According to classical natural law theory, some positive norms (and some aspects of some positive norms) constitute “derivations from natural law by way of conclusion”.19 This may be described—albeit imperfectly— the way Redondo does when she alludes to legal norms that can be “reduced” to moral norms. So, for example, the legal norm in her example (“stealing is forbidden”) could be reduced to the moral norm “stealing is forbidden” —an existing moral norm according to natural law theory. I said that this may be thus described “imperfectly” because strictly speaking the legal norm on theft is going to be (and should be) more complex than the moral norm on theft. On the one hand, the legal norm in question shall determine numerous, contingent aspects requiring a regulation compatible with several morally acceptable solutions. On the other hand, that legal norm shall provide a sanction of some sort that will be absent in the equivalent moral norm. These determinations (both of those numerous, contingent aspects and of the sanctions) are called by classical natural law theory “derivation by way of determination”20 and they could never be “reduced” to moral norms.21 On the contrary, while the legal norm establishing the “determinations”, when just, may be traced to a general and indeterminate moral norm, through those determinations it offers a new reason for action. So, for example, if the moral norm in question —part of “natural, moral law”, according to natural law theory— requires the moral justification of some instances of theft, a just legal norm shall determine how much bread famined persons (such as Jean Valjean) may legally take by force to satisfy their needs. The answer to this precise question is not “written in the stars” (of natural, moral law); neither is the sanction that the protagonist of Les Miserables ought to receive if with the excuse of hunger he steals, not a morcel of bread but an entire bakery. The answer, rather, is written in… the letter of positive law.
10Back to Redondo’s example (and quoting her in part), for natural law theory “the norm ‘stealing is forbidden’ is valid (i.e., it exists) if and only if it is true that legally you shall not steal”.22 And if it is true (as it is for natural law theory) that “stealing is morally forbidden”, it does not follow from this moral truth—i.e., from the existence of this moral norm— that stealing is legally forbidden. According to natural law theory, for the latter to be true there ought to exist the equivalent, promulgated legal norm; or, in more Hartian terms, a social source ought to recognize the moral norm on theft and afford it legal normativity.
- 23 Finnis 1980/ 2011: chapter XII.
11For natural law theory, the extreme proof of the difference between moral validity and legal validity is provided by that theory’s treatment of unjust laws. If, for example, almsgiving were legally forbidden, the positive norm so providing would be legally valid (assuming it is legally valid) independently of wheter it is morally true that one ought not to give money to the needy. The legal prohibition of almsgiving might be an unjust prohibition, but that injustice (i.e., that immorality) will not per se make the positive norm legally invalid or non-existent.23 By way of summary, if within the natural law tradition one talks about “unjust law” it is because it is… “law”!
12The second context in which Redondo uses the term “natural law theory” is similar to the previous one, so my remarks here shall repeat the preceding ones and develop on them. Redondo holds:
The normativistic positivist distinguishes between empirical facts and norms to emphasize that the law understands a legal order as a set of these latter and not of the former. The non-reducibility of legal norms, either to social facts, on the one hand, or to moral norms, on the other, is what allows normativistic positivism to criticize, on the one hand, legal realism and, on the other, natural law theories (Redondo 2018: 46, emphasis added).
- 24 Aquinas, Summa Theologiae, I-II, q 95, a2, c.
- 25 Legarre 2013: 137-144.
13Nevertheless, from what I have explained above, it follows that natural law theory does not affirm that legal norms may be reduced to moral norms. Even though for natural law theory just law derives from natural, moral law —in the sense that just law may be traced to natural, moral principles— that theory also admits the possibility that a certain legal norm could, as a result of its injustice, not derive from a moral norm. Furthermore, strictly speaking, according to natural law theory only a bunch of those just legal norms could be “reduced” to moral norms. One could say that the legal norms derived from natural law by way of “conclusion”24 could be “reduced” to moral norms. But most just legal norms derive from natural law by way of “determination”,25 where although the legal norm respects natural, moral law, that legal norm is far from “reduced” to moral principles. On the contrary, such legal norms take a general, moral principle and concretize it into one of several, morally valid ways or determinations, all of which are compatible with natural, moral law.
14Behind the argument in the preceding paragraph lies the natural law idea of the distinction between morality and law, as two related but different normative orders.26 If, instead, one could “reduce” law to morality, law would be either pointless or it would have the minimal function of providing sanctions. But from natural law theory’s perspective morality —natural, moral law— is insufficient for social life and it therefore itself requires the existence of positive law, much further than sanctions (but including them). If I understand Redondo’s position, there is ultimately agreement between her and natural law theory on this point. And if she does not share this view, I suggest that maybe it is because she calls “natural law theory” something that indeed does not exist or, at least, it is not the classical version of natural law —the one explained by Thomas Aquinas and renewed by Finnis and others.
15The third context in which Redondo uses the term “natural law theory” reinforces the optimistic conclusion I have just reached, and perhaps it allows us to go one step further towards a posible compatibility between her position and the doctrine of natural law. This new context arises in footnote 140. In the text to which note 140 is attached, Redondo holds that the book Normative Systems, by Alchourrón and Bulygin
does not pretend to articulate a specific “theory of law”, but rather presents a “theory of normative systems” offering a variety of tools that could be used by very different kinds of legal theories; obviously, provided they accept the idea that law can usefully be reconstructed as a system of norms (Redondo 2018: 138-139).
16In the footnote itself, Redondo clarifies that like José Juan Moreso, she thinks that:
17
The notion of normative system developed in Normative Systems is a powerful conceptual construction applicable to any normative problem ... regardless of our position on the nature of law and, therefore, compatible with natural law theories and legal positivism (Redondo 2018: 139, note 140, with a quote from Moreso; ellipsis in original).
18In so far as natural law theory is concerned, I too share, at least potentially, the idea of this compatibility because, on the one hand, the doctrine of natural law is compatible with considering normative systems (where they exist) as an instance of the concept of law (Rosler: 2019). On the other hand, the doctrine of natural law is not called to ajudge the logical, and other problems that arise within normative systems (where they exist). But to affirm the potential compatibility between natural law theory and the solutions advanced in the famous book by Carlos Alchourrón and Eugenio Bulygin does not entail passing judgment on the usefulness or correctness of those solutions, a topic on which I declare myself ignorantly agnostic; although, perhaps thanks to Redondo’s book, if normative logics would be a god and Normative Systems the bible, I would in no way proclaim myself an atheist, just in case.
- 27 Aquinas, Summa Theologiae, I-II, q 95, a2, c.
- 28 This “intramoral” derivation is different from the two modes of derivation of positive from natural (...)
19Without prejudice to my declared agnosticism, and regardless of my blissful ignorance, I preliminarily observe that some ideas in Normative Systems maybe be conducive to understading how is it possible that a legal system could contain not only the norms explicitly established in it, but also others that are the logical consequence of them. I note in this sense an analogy between the task undertaken by Alchourrón and Buygin in their “bible” and the enterprise of Thomas Aquinas in his “summa”, regarding the derivation of norms within morality, concluding specific moral norms from other more general ones. For example,27 without leaving the moral order, Aquinas derived from the principle “you ought to do go good and avoid evil”, a more concrete moral principle: “you ought not to harm others”. And from this principle, he derived an even more concrete one: “you shall not kill”.28 While Aquinas applied this method of derivation to morality, with respect for Aristotelian logic, the Argentine analytical masters did likewise (saving the differences), applying that method to normative systems: another coincidence that deserves to be underscored. One that, it would seem, is also a coincidence between Redondo and natural law theory.
—Acknowledgments.— This paper was originally presented at a session organized by the Argentine Association of Philosophy of Law and coordinated by Professor Paula Gaido. The author is thankful for wonderful feedback from Professor Gaido herself, two referees for Revus, and by Luciano Marchetti and Malena Muñoz.