Professional Documents
Culture Documents
Ajj 7 169
Ajj 7 169
169
only a long tradition of meditation and explanation, but also the advice of a living
Church; not only sense of the Christian community in which one lives, but also
the resources of personal meditation and insight. It may be noted that Christ,
as God, is omniscient about all facts relevant to the situation; and hence those
who would imitate him must be as diligent as possible in learning about all
aspects of the events in which they find themselves: the scientific not least.
Wherever they close their eyes, stilling the desire for full understanding, there
The principle, the norm, the center, and the goal of Christian Moral
Theology is Christ. The law of the Christian is Christ Himself in Person.
He alone is our Lord, our Savior. In Him we have life and therefore
also the law of our life. Christian life may not be viewed solely from the
standpoint of formal enactment of law and not even primarily from the
standpoint of the imperative of the divine will. We must always view it
from the point of the divine bounty. . . In Christ, the Father has given
us everything, (p. vii)
A third branch of secondary rules deals with the tribunals to determine the viola-
tibns of~pnmary rules and with the application of sanctions for their breach.
The author comments on this model: "If we stand back and consider the
structure which has resulted from the combination of primary rules of obligation
and the secondary rules of recognition, change, and adjudication, it is plain that
we have here not only the heart of a legal system, but a most powerful tool for
the analysis of much that has puzzled both the jurist and the political theorist."
6. See Holmes, The Path of the Law, in COLLECTED LEGAL PAPERS 173 (1920), and com-
pare LLEWELLYN, T H E BRAMBLE BUSH 9 (2nd ed., 1951).
7. Hart has not yet met head-on Fuller's contentions that no statutes are interpreted word
by word and that even the simplest statutory phrase for the "clearest cases" requires a
decision as to the purpose of the statute. See Fuller, Positivism and Fidelity to Law — A
Reply to Professor Hart, 71 HARVARD LAW REVIEW 630, 661-667 (1958).
8. The last chapter of the book is an especially effective critique of the Austinian notion
of sovereignty in international law. While this notion has caused much harm in international
affairs (see F.S.C. NORTHROP, PHILOSOPHICAL ANTHROPOLOGY AND PRACTICAL POLITICS
179-180 [I960]), it is increasingly under attack by general theorists, e.g., CHARLES D E VIS-
SCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW 93 (trans. Corbett, 1957),
and specialists, e.g., B. A. WORTLEY, EXPROPRIATION IN PUBLIC INTERNATIONAL LAW 13.
172 NATURAL LAW FORUM
Roman, early American — have enforced slavery by laws which would be con-
sidered unjust. 12 If analysis of the law of such societies is to be made, it appears
pointless to deny the character "law" to the unjust statutes imposing or regulat-
ing servitude.
Even here, however, contemplating a "purely descriptive" model, there must
be some doubt as to whether there would not be a gain in analytic insight if just
and unjust laws were distinguished. The way laws function socially is for Hart
12. Such classic philosophical defenses of slavery that some men are naturally slaves
(ARISTOTLE, POLITICS 1:2) or that some men will benefit from the guidance of a wise
master (THOMAS AQUINAS, SUMMA THEOLOGICA II-II, Q. 57, art. 3, ad 2) do not seem to
have much relation to the laws instituting and maintaining slavery in any given society.
13. For example, Thomas Aquinas still treats of "unjust laws" in his "Treatise on Law"
while saying a man is "not bound to obey [such] law, provided he avoid giving scandal or
inflicting a more grievous hurt." SUMMA THEOLOGICA I-II, Q. 96, art. 4, ad 3. He also
speaks of a tyrannical law as "not a law, absolutely speaking, but rather a perversion of
law." "It has the nature of a law" because it is "an ordinance made by a superior to his
subjects." Ibid., Q. 92, art. 1, ad 4.
174 NATURAL LAW FORUM
14. See Fuller, op. cit. supra note 7, at 656-659. Compare T H E JUSTICE CASE, III TRIALS
OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS (1951), especially
testimony of Defense Witness Professor Jahrreiss, p. 257, 277, 282. Note in particular such
examples of belief in the magic power of a statute to convert wrong into right as the case
of Curt Rothenberger, president of the district court of appeals at Hamburg, 1935-1942, who
opposed denying Jews the right to proceed in forma pauperis while "a direct legal basis is
missing," and at the same time urgently recommended issuance of a legal directive to
achieve this denial. {Ibid., pp. 1111-1113)
JOHN T. NOONAN, JR. 175
15. Games not only have the same moral minima as Hart's model of law. They may also
be analyzed in terms of his primary and secondary rules. Take football for example:
1. Rule of recognition: The official rule book contains all the rules of the game.
2. Rule of adjudication: The officials are empowered to determine all infractions
of rules, to decide all disputes, and to impose penalties.
3. Primary rules: Certain members of the team in possession of the ball may carry
it forward and will score points if the ball is carried over the opposing team's
goal line. Under certain circumstances the ball may be thrown forward instead
of carried, etc. The team with the ball may not hold the other team with
their hands, etc.
4. Rules of change: By taking the ball under certain circumstances or by prevent-
ing the team with the ball carrying it forward ten yards in four downs, the
defending team may gain possession of the ball and the right to score.
The English tradition of analogy between games and law, much favored by Hart, is at
least as old as Hobbes: "It is in the Laws of a Common-wealth, as in the Laws of Gam-
ing; whatsoever the Gamesters all agree on, is Injustice to none of them." LEVIATHAN
252 (Cambridge Classics ed., 1904) A more modern parallel is Wittgenstein's insight
into language as a game. See Helen Hervey, The Problem of the Model Language-Game in
Wittgenstein's Later Philosophy, 36 PHILOSOPHY 333 (1961).
IREDELL JENKINS 177
ence between games and law. The other great difference, of course, is that there
is no choice as to participation in the world of law. The conscripted participants
in this world affect the purposes of the rules, just as the rules interact on them
and change their purposes and personalities in a way no game ordinarily does.
The participants' values are inextricably enmeshed not only with the operation
of the rules, but with what the rules shall be. The static and abstract model of
rules whose end is to perpetuate themselves does not exist in any actual social