Via George Anastaplo’s “In Re Antonin Scalia”, wherein we see Scalia as a legal positivist and no natural lawyer, more a “modern” than a Catholic conservative. But first, the great Mortimer Adler on Plato:
[In Plato’s Republic, we] find the sophist, Thrasymachus, arguing against Socrates, saying that “justice is nothing but the interest of the stronger” and Socrates trying to refute Thrasymachus by defining justice without any regard to the edicts or laws of those with the might to enforce them.
According to Thrasymachus, those with the power to ordain and enforce the laws of the land call those who obey their laws just subjects, and those who disobey them unjust. The words “just” and “unjust” have no other meaning, certainly no meaning whereby a despotic tyrant or a tyrannical majority, ruling in self-interest, not for the good of the ruled, can be called unjust.
With the statement that justice is nothing but the interest of the stronger, we have the origin of the doctrine that might is right, for those with the might to govern are the only ones who can determine what is right and wrong.
Mr. Adler goes on to trace the opposition between Socrates and Thrasymachus down to our day in this fashion:
The position taken by Thrasymachus is taken later by the Roman jurisconsult Ulpian for whom “whatever pleases the prince has the force of the law,” and still later by Thomas Hobbes in his Leviathan where he declares that, in any community, what is just and unjust is wholly determined by the positive or man-made laws enacted by those with the power to ordain and enforce them. In the nineteenth century, the positivist view is advanced by Jeremy Bentham in his Principles of Morals and Legislation, and by John Austin in his Province of Jurisprudence Determined, and in the twentieth century it is advanced by professors in American law schools who call themselves legal realists.
On the other side, the naturalist view initiated by Socrates in his dispute with Thrasymachus finds amplification in Aristotle’s distinction between natural and legal justice; in Cicero’s discussion of [the] natural; in Augustine’s statement that “an unjust law is a law in name only” (representing might without right, power without authority); in Aquinas’s philosophy of law wherein principles of justice are antecedent to, independent of, and applicable to positive or man-made laws; and in the doctrine of modern philosophers, such as John Locke and Immanuel Kant, for whom natural rights preexist positive, man-made laws and become the basis for assessing their justice and injustice.
Mr. Adler, in his usual systematic fashion, spells out “the consequences that follow from embracing the positivist or the naturalist side of the issue”:
If the positivist view of the relation between law and justice is correct, it follows:
1. that might is right:
2. that there can be no such thing as the tyranny of the majority;
3. that there are no criteria for judging laws or constitutions as unjust and in need of rectification or amendment;
4. that justice is local and transient, not universal and immutable, but different in different places and at different times;
5. that positive laws have force only, and no authority, eliciting obedience only through the fear of the punishment that accompanies getting caught in disobeying them; and
6. that there is no distinction between mala prohibita and mala in se, namely, between
a. acts that are wrong simply because they are legally prohibited (such as breaches of traffic ordinances) and
b. acts that are wrong in themselves, whether or not they are prohibited by positive law (such as murdering human beings or enslaving them).
Mr. Adler then spells out, in opposition to each of these points, “the naturalist view of the relation between law and politics,” beginning with the observation that “might is not right” and that “majorities can be tyrannical and unjust.”
George Anastaplo is Professor of Law, Loyola University of Chicago; Lecturer in the Liberal Arts, The University of Chicago; and Professor Emeritus of Political Science and of Philosophy, Dominican University.