Many law students know the rough outlines of the distinction between natural
law and legal positivism. Both are theories about the nature of law–about what is distinctive about law as a concept. There are many difficulties and nuances here, but as a rough and ready statement, one could say that legal positivism holds that in order for something to be “law,” we must look to its provenance or pedigree in this social world, and only in this social world. It follows that for legal positivists, there is an unbridgeable conceptual gap between what the law is and what the law ought to be–between something’s being law and something’s being a just or moral law. The natural law conception of law is quite different. It holds that “law” includes as its fundamental or “core” example just law–morally correct law. This does not mean that the natural lawyer refuses to believe that there can be unjust laws. Surely there can be. What the natural lawyer believes is that a law’s justice, or its morality, is an integral part of what makes law truly, or fully, or in its core case, law.
It is interesting to see Pascal weighing very much in on the side of legal positivism. He is coming, of course, not from the perspective of what one typically associates with contemporary legal positivism (a late nineteenth/twentieth century phenomenon) but from the Jansenist perspective of the fallenness of postlapsarian humanity. His view is that though natural justice exists (i.e., Pascal is not a relativist), humanity simply cannot know what it is in its depraved state. Whatever laws exist are law simply because bodies vested with proper authority have issued them. Note also that this view of law and justice greatly reduces the issue of compliance against conscience with what one deems an unjust law. What do you expect in this world, with these fallen creatures, after all, but unjust law? Here is Pascal:
On what shall man found the order of the world which he would govern? Shall it be on the caprice of each individual? What confusion! Shall it be on justice? Man is ignorant of it.
Certainly had he known it, he would not have established this maxim, the most general of all that obtain among men, that each should follow the custom of his own country. The glory of true equity would have brought all nations under subjection, and legislators would not have taken as their model the fancies and caprice of Persians and Germans instead of this unchanging justice. We would have seen it set up in all the States on earth and in all times; whereas we see neither justice nor injustice which does not change its nature with change in climate. Three degrees of latitude reverse all jurisprudence; a meridian decides the truth. Fundamental laws change after a few years of possession; right has its epochs; the entry of Saturn into the Lion marks to us the origin of such and such a crime. A strange justice that is bounded by a river! Truth on this side of the Pyrenees, error on the other side.
Men admit that justice does not consist in these customs, but that it resides in natural laws, common to every country. They would certainly maintain it obstinately, if reckless chance which has distributed human laws had encountered even one which was universal; but the farce is that the caprice of men has so many vagaries that there is no such law.
Theft, incest, infanticide, parricide, have all had a place among virtuous actions. Can anything be more ridiculous that a man should have the right to kill me because he lives on the other side of the water, and because his ruler has a quarrel with mine, though I have none with him?
Doubtless there are natural laws; but good reason once corrupted has corrupted all. Nihil amplius nostrum est; quod nostrum dicimus, artis est. Ex senatus–consultis et plebiscitis crimina exercentur. Ut olim vitiis, sic nunc legibus laboramus. [My translation: Nothing more than this is ours; what is ours is what we say, our art. Crimes are mandated to us by the senate, the consuls, and the people. Once we suffered from our vices, now we suffer from our laws.]
The result of this confusion is that one affirms the essence of justice to be the authority of the legislator; another, the interest of the sovereign; another, present custom, and this is the most sure. Nothing, according to reason alone, is just in itself; all changes with time. Custom creates the whole of equity, for the simple reason that it is accepted. It is the mystical foundation of its authority; whoever carries it back to first principles destroys it. Nothing is so faulty as those laws which correct faults. He who obeys them because they are just, obeys a justice which is imaginary, and not the essence of law; it is quite self-contained, it is law and nothing more….
From Fragment 294 of Pensées.
