Not all “laws” are laws

To those of you who think that all law is mere convention, consider engaging Tim Sandefur’s well-presented defense of the Substantive Due Process doctrine over at Cato Unbound.  Here’s Tim’s response to Larry Rosenthal (my First Amendment professor at Chapman Law):

A self-contradiction is nothing; it is null; it is no more a law than it is a pigeon or a sneeze, and a court is therefore justified in disregarding it, even if passed with full procedural formalities. Yet nothing in the Constitution expressly forbids self-contradictory statutes. This prohibition is implicit–embedded in the logic of law itself. As the framers were aware, Francis Bacon made the same point when explaining that a legislature cannot create an unrepealable law (perpetua lex est nullam legem). Nothing in the Constitution expressly forbids unrepealable statutes. Yet such things are prohibited by what Bacon called their “impertinency,” or by what Hamilton called “the nature and reason of the thing.” There are limits on legislative authority imposed by the logic of law itself. That’s why even Blackstone, who believed that government possessed “supreme, irresistible, absolute authority” still admitted it could not do something that is “naturally impossible.” To make an arbitrary, ipse dixit, unauthorized use of force into a “law” is naturally impossible.

If one concedes this much, then one must admit that mere promulgation is not sufficient to make something a “law.” Instead, the legal status of a promulgated rule must be determined at least in part by its content. That is, by its substance: we must ask what a law is, and determine whether something containing the substantive provisions in question meets that definition. That just is substantive due process of law.

A constitution does not tell us what a right is, what a law is, or how to reason.  A constitution will be utterly meaningless to a people who either cannot or will not admit these basic notions as inhering in its very idea. 

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. California Civil Code section 3548 reads, in full: “The law has been obeyed.” Do you think this is a law? It’s clearly not universally true and it was enacted by the Legislature will all procedural formalities observed.

    I’d say more, but superfluity does not vitiate.

    • It is a presumption, and perhaps in a different class than a law. As am example, I cited this section in the Los Al case when the city offered a draft ordinance as evidence of the council’s intent and understanding behind the lowest responsible bidder ordinance. We pointed out the open meeting statue prevented the council from considering it or indeed ever setting it absent a duly noticed meeting, and noted the presumption that the law had been obeyed–i.e., that as far as the law was concerned, the council never saw the draft document, even if they in fact had.

      • I guess I’m simply a positivist when confronted by an argument like Prof. Sandefur’s, then. If even a maximum of jurisprudence can be used to legal effect, then even something of apparent falsity, and decidedly non-obvious effect, but which is procedurally valid positive law is law. Whatever comes after that is adjectives — adjectives that are at least vulnerable to being governed by malleable convention.

        That’s not to say that you (and Prof. Sandefur) aren’t on to something by pointing to the potential of a self-contradicting law to be an intellectual problem. Anyone whose actions are implicated by this law simultaneously complys with and disobeys the law, a tension which demands resolution if enforcement of that law is to be anything but arbitrary. I’m far more comfortable to label a self-contradictory law as “of no apparent effect” or “nonsensical and arbitrary” or some other kind of adjective indiative of the law’s imperfections rather than “not a law at all.”

        The big objection here is, “Was slavery at one time lawful?” Of course it was, even though it was always immoral, causing significant tension. Those who opposed slavery did so in contradiction to the law, seeking to change the law from within the system at best (e.g., Thaddeus Stevens) and violating the state’s monopoly on force (e.g., John Brown) at worst. But until abolition, slavery was the law.

        The expressed command of the sovereign, backed ultimately by the sovereign’s use of force and violence, and as actually and practically implemented in practice, is law. How the sovereign acquires the ability to monopolize the use of force and violence is a question of political legitimacy, not a question of law. How the sovereign promulgates its commands is a question of procedure. How the law is actually implemented is a question of analysis and history. That a law is arbitrary or nonsensical or unjust, or that we might morally praise the unlawful (as we might with Senator Stevens or even John Brown) while morally condemning the lawful, does not render this enforced command any less “law.”

        • Burt,

          I think Mr. Sandefur addresses this argument. He acknowledges that the word “law” presents linguistic limitations, much like one might call a void contract “one kind of contract.” But linguistic limitations aside, conceptually, a piece of paper that does not satisfy the elements of a contract is not a “void contract” — it is not a contract at all. Just so, an act that violates the Constitution is, as Hamilton says in Federalist 33, “will [not] become the supreme law of the land.”

          • Burt, one more question if I may. What is an act of the legislature passed by all due procedures but that blatantly contradicts the constitution such that it’s not even a close call? Even for a positivist, wouldn’t it be said that compliance with the constitution is one of the prerequisites, part of due process, in becoming a law?

          • No. It would be an unconstitutional law, until stricken by a court, at which point it would cease to exist. The flag-burning ordinance of Texas v. Johnson is the example that springs immediately to mind. It wasn’t even a close call that the law was unconstitutional. But Mr. Johnson was still arrested for violating it. We can agree that this was unjust and ought not to have happened, I’m sure. From my perspective, he broke the law but later invoked a higher tier of the law to invalidate the statute he violated, which was a defense to the criminal charge agaisnt him. He was not acting lawlessly because he was protected by the First Amendment all along. I think that from your perspective, the authorities who arrested and prosecuted him were the ones acting lawlessly, despite the apparent procedural correctness of the way they went about it.

  2. Whoa, I didn’t say that all law is mere convention. I said that morality and especially rights are conventions. Law is a positive statement by an authority about what it will (not) tolerate. Obedience to the law of that authority might reside in a significant degree of convention, or it might reside in pure subjugation. But the law itself is a positive statement, not a convention. I’d be willing to say that legal rights that stem from law are logical results of those positive statements, but then I’d also want to say that merely because a law purports to create a right, the right needs to actually be enacted to some significant degree in the society in question to actually be a right. If the law creating the right is not generally followed by the authorities of the state and the state tolerates this as does the populace by not rebelling against this disregard for its own law by the authority, then then I think it’s pretty well-argued that the legal right hasn’t actually come into being despite the law whose mere words call it into existence. And this is a matter of convention (what actions by some are or are not accepted by others). So I think I still end up where I was on rights, even legal rights. But I didn’t make any such claims about law itself – certainly not to the extent of denying any logical-metaphysical arguments that thinkers about law (per se) have made or might make about its properties.

    I do not say that law is a mere convention, no.

    • Tim – just now saw your response in that thread. Sorry not to have gotten back to you. Let me ponder those questions. For now, let me just say I wasn’t trying to advance a universal-acid idea of conventionality of things: I was just conveying my sense that both rights and morality look to me a lot like conventions among humans that we’ve dressed up in nice clothes and tried to call inherent fats of Nature, or human nature. I don’t think I see where my argument is vulnerable to a reductio, that is I’m not clear why it would be self-contradictory for me to say, No, those things just don’t look like conventions to me. But I will think about whether I’m wrong about that.

      As to logical necessities and their correspondents, logical impossibilities, my provisional view is that those are artifacts of consciousness: that the idea of logic isn’t a real thing, but rather that the universe is its matter in motion, and that the perception of distinction between logic and illogic, and the fact that the universe always seems to us to act logically, is just an incident of a mind trying to reason out the universe, not of the universe itself. But that is a deep philosophical question of long standing that I don’t claim to have any special insight into.

      Which is, I suppose, also the case in terms of the “reality” of morality and rights, but there I guess I do claim to have something of an insight, but all it is is just a vivid personal intuition that rights and morality both happen to strongly resemble conventions to me. It’s just kind of a FWIW thing as far as whether it should convince you, but for me it’s just that clear to look at it, so much so that I feel I just have to bite the bullet and make that my position. Much like I did when, despite fully accepting that we evolved from apes, I had continued out of to hold on to an unexamined sense that there existed some fundamental ontological distinction between What Is Human and What Is Animal, and suddenly I was sitting in a completely unrelated college classroom one day, and said to myself, ‘Well, no, we just *are* animals, like the apes, but we’re animals who are like this and they’re animals who are like that.’ Like that.

      • Cheers, Tim! In any case, thanks for giving thought to what I wrote. That flatters me.

        • Not at all. You have honest and considered positions, and I don’t want to spoil our ongoing conversation with muddled thinking on my part. There is a close relationship between reasoning and natural law and natural rights, but I shouldn’t skip over the connections.

          To be continued!

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