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 WHY THE RULE OF LAW MATTERS:
A NATURAL LAW PERSPECTIVE

JAMES GORDLEY

I. INTRODUCTION

There was a rude awakening in the 20th century when jurists realized that
they could not draw conclusions from authoritative sources by formal
reasoning. In France, jurists had thought that they could do so from the
provisions in their Civil Code. Frangois G6ny claimed that it could not be
done by logic alone.' In Germany, jurists thought that they could reach
conclusions by examining the logical content of concepts such as contract
and property. Philip Heck claimed that they were putting matters backward.
Legal concepts are not immutable. They are formulated for a purpose: to
deal with the conflict of interests of people in society.2 Although critics
such as G6ny and Heck discredited the positivism and formalism of other
jurists, they were less successful in finding an alternative. G6ny said that
the alternative was "free scientific inquiry" (libre recherche scientifique),
but the more it seemed to be free, in the sense that it depended on the
opinions of the jurist, the less it seemed to be scientific, in the sense that it
depended on reasoning. Heck thought that the jurists should investigate the
balance that the law had struck among competing interests and strike the
same balance in similar cases. Again, the procedure seemed arbitrary. In
any new situation in which the law was unclear, the "weight" assigned any
interest seemed to depend on who did the weighing.
In the United States, the awakening came with the Legal Realist
movement. Case law seemed especially vulnerable to criticism. It seemed
harder to see how one could proceed logically to conclusions from
particular cases than from code provisions or legal concepts. Karl
Llewellyn described the problem by imagining two cases: in one, the facts
are a, b, and c, and the outcome is x; in the other, the facts are a, b, and d,
and the outcome is y. "How, now," Llewellyn asked, "are you to know with

1. Frangois G6ny, Methode d'interpretationet sources en droit privd, 2d ed. (Paris:

Pichon and Durand-Auzias, 1919).
2. Philipp von Heck, Begriffsbildung und Interessenjurisprudenz(Tilbingen: Mohr,
1932).

1
2 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

any certainty whether the changed result is due in the second instance to the
absence of fact c or to the presence of the new fact d?" Certainly, a court
could not get from the first result to the second by formal reasoning.'
According to Llewellyn, the solution was not to replace case law with
statutory law even though one might think that "statutory rules with their
fixed words take us wholly outside the .. .problem." One must decide what
the words of statutes mean. "Made without any particular case in mind--or
in some instances, with a singular case too much in mind-and without the
caution drilled by experience into judges, the language is faced now with a
succession of particular cases." One cannot decide, by formal logic,
whether cases with "new ambiguous concrete facts . . . fit into the statutory
boxes."
Roberto Unger, a founder of the Critical Legal Studies movement, raised
this problem continually in his lectures at Harvard Law School in the
1970's. When people believed in natural law, he said, they could imagine
that legal concepts such as contract or property had a meaning that was not
arbitrary or conventional, and so one could draw conclusions from them by
formal reasoning. Modems believe that whatever meaning legal concepts
have is given them by convention. Consequently, there is no way by formal
reasoning to extract more meaning from a concept than it has already been
given by convention. Any decision as to whether the concept covers a new
case which has not already been ascribed to the concept by convention must
be arbitrary.s
If that is so, how is the rule of law possible? Many legal realists and
members of the Critical Legal Studies movement of the 1970's and 80's
concluded that it is not.
Llewellyn himself objected to posing the issue in terms of these
alternatives. He told the Annual Meeting of the Conference of Chief
Justices in 1959:
There are . . . altogether too many people-Gentlemen Chief Justices of
the various Supreme Courts of these United States-to whom the basic
question about you seems to be whether you and your brethren are ...
mere voices with a mission only of accurate transmission, or whether, in
the sharpest contrast, you and your brethren are in the nature of better-
class politicians deciding cases the way you see fit while you just
manipulate the authorities to keep it all looking decent.

3. Karl N. Llewellyn, The Bramble Bush: Some Lectures on Law and its Study (New
York: Columbia University Press, 1930), 52.
4. Ibid. 79.
5. Roberto Mangabeira Unger, Knowledge and Politics (New York: Free Press, 1975),
80-81.
2012 JAMES GORDLEY 3

You resent that kind of misposing of the issue. I join you in

resenting it.6
Llewellyn thought that judges decide cases in neither of these ways.
They do so according to their own judgment but it is a judgment guided by
"situation sense." He spoke of it as "opened, reasoned, extension,
restriction or reshaping of the relevant rules . . . done in terms of the sense
and reason of some significantly seen type of life-situation." That, at least,
was how he summarized in a sentence "what has cost me a 500-page
book."7 According to Llewellyn, the rule of law presupposes that there is a
kind of reasoning that is not formal, that depends upon human judgment,
but is not arbitrary.
Nevertheless, if there is such a form of reasoning, the question still
arises: is the rule of law possible? Llewellyn said:
The doctrine I am preaching is, of course, not that a clear rule which leads
to a right result needs anything more than a mere clear statement in a
single paragraph. The doctrine is instead that under the Grand and Only
True Manner of deciding: (a) any rule that is not leading to a right result
calls for rethinking and perhaps redoing; and, also and equally, (b) any
result which is not comfortably fitted into a rule good for the whole
significant situation type calls certainly for a cross-check and probably for
more worry and still more work.
If, as Llewellyn suggested, a judge can tell whether a rule is or is not
leading to the right result, then, it would seem, the judge can reach that
result without the rule. He may be better off without it. This is another
problem that Unger raised repeatedly in his lectures at Harvard. Suppose it
is true that a judge cannot apply a rule by formal reasoning and that he must
do so by following his own judgment concerning the purposes of the rule
and how to achieve them. If the rule of law means that a case is to be
decided according to a rule rather than according to one's own judgment,
how is the rule of law possible?
In this article we will see that the problem was "misposed," in
Llewellyn's words, when jurists came to think of law as a body of precepts
that can be applied by formal reasoning to resolve any case that might arise.

6. Karl N. Llewellyn, "On the Current Recapture of the Grand Tradition," in Karl N.
Llewellyn, Jurisprudence:Realism in Theory and Practice(Chicago: University of Chicago
Press, 1962), 215 (originally published University of Chicago Law School Record 9
(1960)).
7. Llewellyn, "On the Current Recapture of the Grand Tradition," 210-20, referring to
Karl Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little, Brown,
1960).
8. Llewellyn, "On the Current Recapture of the Grand Tradition," 221.
9. Unger, Knowledge andPolitics, 88-91
4 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

Although the 19th century jurists wrote about positive law, they inherited
this idea of how law is interpreted from 17th and 18th century jurists who
wrote about natural law. They had taken it in turn from the 17th century
theologian Francisco Sudrez. He broke with a quite different approach
which had been taken by Thomas Aquinas. In Aquinas's view, following
the natural law was inseparably linked to human judgment about the
purpose to be achieved and the best means to achieve it under the
circumstances one confronted. In that respect, Aquinas's view of what it
means to follow natural law resembled Llewellyn's view of what it means
to follow precedent or statutes. 0
Consequently, Aquinas's view, like that of Llewellyn, raises Unger's
question. How does the rule of law differ from the rule of human beings
following their own judgment? As we will see, Aquinas answered that
question when he considered human government. The answer that he gave
illuminates a problem that Aquinas did not consider but which Llewellyn
had chiefly in mind. How is the rule of law to be explained when law is
judge-made?

II. THE SOURCE OF THE PROBLEM

The source of the problem, according to Llewellyn, is the idea that

authoritative texts such as statutes and precedents can be applied by formal
logic alone. Then the only alternative seems to be that a judge decides a
case as he sees fit.
This idea, Llewellyn said, was accepted almost without question in the
United States in the late 19th and early 20th century. The same idea gained
currency in Europe earlier in the 19th century among jurists who were
reacting against the rationalist natural law theories of 18th century writers
such as Christian Wolff. The 19th century jurists believed that their
conclusions should be based only on the positive law as found in
authoritative texts. Because these conclusions could be drawn by formal
logic, they possessed the same authority as the texts themselves. A judge
who added anything of his own would be usurping authority. He would be
making law.

10. Indeed, the resemblance is close enough that the author was asked to give a
symposium for judges on the parallel between the concept of situation sense in Llewellyn
and prudence or phronesis in Aquinas and Aristotle. "Llewellyn and Aristotle on the Force
of Reason: The Nature of the Judicial Function" sponsored by the Law and Economics
Center of the School of Law, George Mason University, at Captiva, Florida, December 3,
2006.
2012 JAMES GORDLEY 5

Franz Wieacker noted that the 19th century jurists owed their formal and
conceptual approach to natural law theorists such as Wolff whom they
claimed to have rejected." Rationalists such as Wolff believed that one
could begin with propositions about human nature that were as certain as
those of geometry. Conclusions that followed from these propositions
possessed the same certainty as these propositions. Wolff said,
[Having] applied my mind to the study of mathematics for no other reason
than to understand the great certainty to be found in geometry . .. in that
spirit I turned to the explication of law. ... I found the source of every
law is in human nature. . . . [T]he entire extent of natural law, which
covers all the human actions that there might be . . . can only be put in the
light by following in the track of Euclid, that is, explaining each term by
an exact definition, and making a sufficient determination of the meaning
of each proposition, and arranging the definitions so that those that come
before allow one to fully understand those that follow.12
As noted earlier, according to Roberto Unger, when people believed in
natural law, they could imagine that conclusions could be drawn from legal
concepts by formal reasoning, an option that is not open to modem people
who believe that the meaning of concepts such as contract or property is
arbitrary and conventional. Unger was conceiving of natural law as Wolff
did, as founded on concepts from which conclusions could be drawn by
formal logic. Indeed, when he discussed the place of "intelligible
essences" in "Aquinas's theory of natural law," he referred the reader to
Aristotle "for the authoritative statement of the doctrine of intelligible
essences," and to Wolff for "the development of the Aristotelian view.""

11. Franz Wieacker, Privatrechtsgeschichte der Neuzeit unter besonderer

Bericksichtigungder deutschen Entwicklung (G6ttingen: Vandenhoeck and Ruprecht, 1967),
373-74. See Christoph-Eric Mecke, Begriff und System des Rechts bei Georg Friedrich
Puchta (G6ttingen: Vandenhoeck and Ruprecht , 2009), 594. Bohnert noted that despite all
the debate over the work of Savingy and his followers, one point of agreement has been its
resemblance to that of the rationalists. Joachim Bohnert, Ober die Rechtslehre Georg
FriedrichPuchtas 1798-1846) (Karlsruhe: C.F. Muller, 1975), 125.
12. Christian Wolff, Institutiones juris naturae et gentium, in Christian Wolff,
Gesammelte Werke, ed. Marcel Thomann, vol. 26 (Olms: Hildescheim, 1972), Prefatio. As
Claes Peterson has said, what Wolff means "is clearly not that logic is an analytic
disentangling of legal argument. Instead, logic is the way to a synthetic understanding of the
legal system. With the help of logic, a logically coherent system of norms can be constructed
and even the norms can be derived from it." Claes Peterson, "Zur Anwendung der Logik in
der Naturrechtslehre von Christian Wolff," in Entwicklung der Methodenlehre in
Rechtswissenschaft un Philosophie vom 16. bis zum 18. Jahrhundert, ed. Jan Schrader
(Stuttgart: F. Steiner,1998), 177.
13. Unger, Knowledge and Politics, 32 and 32nl, citing Christian Wolff, Philosophia
Prima sive Ontologia, § 143, ed. J. Ecole, Gesammelte Werke, eds J. Ecole and H. Arndt
6 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

As John Finnis and others have noted, this rationalist approach can be
traced, not to Aquinas, but to the 17th century theologian Francisco
Sudrez.14 "Sudrez maintained that in discerning the content of natural law,
reason's decisive act consists in discerning precepts of the form 'p is
unfitting to human, i.e. rational nature and thus has the quality of moral
wrongfulness' or 'p befits human, i.e. rational nature and thus has the
quality of moral rectitude, and if p is the only such act possible in a given
context, the additional quality of moral necessity or dueness."'"I As Sudrez
said, "the law of nature is always the same, and made up of the same
precepts, because they are either principles or conclusions necessarily
elicited from them....
Unlike Wolff,17 who was writing after the Cartesian revolution, Sudrez
did not say that the study of law should be modeled on geometry. Like
Wolff, however, he claimed that the conclusions of natural law are
"necessarily elicited" from principles invariably attached to human nature.
Therefore, "the law of nature is always the same."
Thomas Aquinas also believed that the natural law followed from
principles invariably attached to human nature. Nevertheless, he did not
believe that conclusions about natural law are necessarily elicited from
these principles. Nor did he believe that, as to its conclusions, the law of
nature is always the same.
Some scholars have thought the reason for the difference is that Aquinas,
unlike Sudrez, thought of the ultimate principles of natural law
teleologically, in terms of human fulfillment. 1" According to Aquinas, the
ultimate principles are those one must follow to live a distinctively human
life, a life which realizes, so far as possible, one's potential as a human
being. Living such a life is the ultimate end toward which all good actions
are a means, either because they are instrumental to living such a life or
because they are a component of it. Sudrez, however, also thought that
"these precepts tend to the same end, truly, the due conservation and natural

(Hildesheim: Olms, 1962), vol. 3: 120-21. Unger also seems to have regarded those who
believed in natural law as subscribing to something like Wolff s metaphysics. See note 50,
infra.
14. E.g., Germain Grisez, Christian Moral Principles (Quincy, IL: Franciscan Press,
1997), 104.
15. John Finnis, NaturalLaw and NaturalRights (Oxford: Clarendon Press, 1980), 45.
16. Tractatusde legibus et de legislatoredeo (Coimbra, 1612), lib. 2, cap. 8, no. 9.
17. Christian Wolff, Institutionesjurisnaturaeet gentium, Prefatio.
18. Grisez, ChristianMoral Principles, 106; Pauline C. Westerman, The Disintegration
of Natural Law Theory: Aquinas to Finnis (Brill: Leiden, 1998), 101. See Finnis, Natural
Law and NaturalRights, 45, but see ibid. 337-38.
2012 JAMES GORDLEY 7

perfection or happiness of human nature; therefore they all belong to the

natural law.19 Like Aquinas, he defined perfection in terms of the
fulfillment or completion of one's being, and he defined goodness in terms
of perfection.20 For that matter, so did Wolff.2 1
The difference is that, for Aquinas, although the ultimate principles of
natural law are always the same, conclusions as to how these principles
apply in a given situation depend upon the judgment of a person in that
situation. As to its conclusions, the precepts of the natural law may differ
according to the circumstances he is confronting. Although "the natural law
as to general principles is the same for all," nevertheless, "as to the
"conclusions . . . of those general principles, it is the same for all [only] in a
majority of cases. ... 22 His illustration was a case put by St. Augustine,
who had taken it from Cicero, and which had been incorporated in Gratian's
Decretum, an authoritative collection of texts on Canon law.23 The owner
of a sword left it with someone who promised to give it back when the
owner asked for it. Should he keep that promise if the owner has become
insane or wishes to do harm with the sword? Like Augustine and Cicero,
Aquinas said that the sword should not be returned. According to Aquinas,
the case showed that the conclusions that followed from the ultimate
principles of natural law could vary with the circumstances.
According to Suirez, the precepts of natural law never vary even as to
their conclusions concerning the right course of action in particular
circumstances. In the case of the sword, the precepts do not vary since a
complete statement of them of would prescribe what should be done under
each set of circumstances that can arise. "[G]ranted that in this case [the
sword] is not to be returned, the reason is not that the natural precept has
changed, for the principle was not posited for this case but for others. . . ."2
"[Rlight reason does not absolutely declare that a deposit is to be returned
but only in understood conditions (intellectis conditionibus)in which justice

19. Tractatus de legibus et de legislatore deo, lib. 2, cap. 7, no. 7, as Finnis recognized,
NaturalLaw and NaturalRight, 337-38.
20. Disputationes metaphysicae in Opera omnia 25 (Viv~s ed., 1861), disp. 10, sec. 1,
no. 11. Unlike Aquinas, he does not think one can define good in terms of perfection alone;
one must add the idea (ratio) of appropriateness or concord (convenientia) with the nature
perfected. Ibid. no. 12.
21. Christian Wolff, Jus naturae method scientific pertracta,published as Jus naturae in
Christian Wolff, Gesammelte Werke, 17-24, I, §§ 608-09.
22. Summa theologiae 1-2, q. 94, a. 4.
23. C. 22 q. 2 c. 14.
24. Tractatus de legibus et de legislatoredeo, lib. 2, cap. 13, no. 6.
8 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

and charity so require."2 5 "And therefore it is no objection that the matter is

variable. . . . For [natural law] prescribes one thing as to the matter in one
situation, and another for that in another, and so in itself it remains always
unchanged, although according to our way of speaking and when it is
spoken of extrinsically, it seems as though it varies."26
For Sudrez, the natural law could not vary as to its conclusions because
these conclusions are already contained in the ultimate principles. They are
"conclusions necessarily elicited from them. . . ."2 Thus, once a precept of
natural law is properly interpreted, it takes all of the relevant circumstances
into account.2 8 "[M]any natural precepts are in much need of interpretation"
as not all of them are "equally easy to understand." They "depend . . . on
the circumstances and opportunities of their performance, and, as to this,
there is a great variety among them. Some are simpler than others and (so to
speak) require fewer conditions for their goodness or evil to arise."29 While
"interpretation is necessary for men, angels do not need interpretation but
directly regard what a precept is and in what way and with what conditions
it applies . . . ."3
For Aquinas, conclusions about how one should act were not obtained by
examining the content of a precept of natural law to determine what action it
prescribes in the circumstances one is confronting. Sometimes, one can see
that an action is wrong without considering the particular circumstances in
which the action is to be performed. But when does have to consider the
circumstances that may matter, it may be impossible to take direct account
of all of them. There is no limit to the circumstances that might matter.
One does not need to consider the circumstances to decide not to commit
adultery, theft, or murder. "Adultery, theft, and murder," according to

25. Ibid. no. 7. Despite the difference between these texts, Farrell seems to think that
Aquinas looked at the precepts of natural law in the same way, that "a full statement of the
precept" would include the way it would be applied under different circumstances. Walter
Farrell, The Natural Moral Law According to St. Thomas and Suarez (Ditchling, UK: St.
Dominic's Press, 1930), 116.
26. Tractatus de legibus et de legislatoredeo lib. 2, cap. 13, no. 9.
27. Ibid. lib. 2, cap. 8, no. 9.
28. Thus Robert Schnepf has noted that interpretation, for Sudrez, makes the precepts of
natural law "concrete" so that one knows how they apply in "individual cases." But
interpretation is needed only to enable us to fully understand the precepts of the natural law.
"A sufficiently competent person would not need interpretation to know the natural law."
Robert Schnepf, "Francisco Sudrez 0iber die Verinderbarkeit von Gesetzen durch
Interpretation," in Die Ordnung der Praxis: neue Studien zur spanischen Spdtscholastik, ed.
Frank Grunert and Kurt Seelmann (Tilbingen: Niemeyer, 2001), 104.
29. Tractatus de legibus et de legislatoredeo lib. 2, cap. 16, no. 6.
30. Ibid. no. 6.
2012 JAMES GORDLEY 9

Aristotle, are actions that "have names that already imply badness." The
wrongfulness of adultery does not depend on the circumstances, on
"committing adultery with the right woman, at the right time and in the right
way, but simply to do any of them is to do wrong." 3' According to
Aquinas, to understand the meaning of adultery, theft, and murder is to
understand that these actions are wrong under any circumstances.32 A
action is defined by the end for which it is performed." In that respect, an
action is like a man-made thing such as a house, which is defined by the end
for which it is made. For example, swimming is a way of moving through
the water; a house is made to provide shelter. When a person acts rightly,
the end for which he acts is always a means to his ultimate end as a human
being. Nevertheless, some actions, such as swimming, are defined without
regard to this ultimate end. Aquinas's examples are "walking in the field"
or "picking up a straw." Others are defined by their relationship with this
ultimate end. To define marriage or property, one must describe how they
are related to this ultimate end, and how that relationship requires one to
treat his wife differently than other women or to treat his property
differently than another's. Conversely, actions such as adultery and theft
are defined by their incompatibility with this relationship in the same way
that disease is defined by its incompatibility with health, capitulation by its
incompatibility with victory, and a traffic accident by its incompatibility
with traffic safety.34 If that is so, then adultery and theft are wrong
regardless of the circumstances."

31. Nicomachean Ethics 2.6.1107a8-27.

32. Thus, when Aquinas said it is permissible to take another's property in time of urgent
need, he did not say that theft was justified under the circumstances. He said that the action
is not "properly speaking theft or robbery" because the owner does not have an absolute right
but one which is limited by the purpose for which private property is instituted. Summa
theologiae 2-2, q. 66, a. 7.
33. Ibid., 1-2, q. 18, a. 5.
34. Ibid., q. 18, aa. 5-8.
35. John Finnis has rightly criticized those who say that because Aquinas thought that the
rightness and wrongness of some actions depends upon the circumstances, he must have
thought this was true of actions such as adultery, theft and murder. That conclusion is a non
sequitur, and, as Finnis has shown, it is squarely contradicted by Aquinas. Finnis also
criticized those who regard Aquinas's position as tautological because, in effect, Aquinas is
defining adultery as a type of wrongful sexual intercourse, theft as a wrongful deprivation of
another's property, and murder as a wrongful killing. John Finnis, Aquinas: Moral, Political
and Legal Theory (Oxford: Oxford University Press, 1998), 163-70. Again, I believe Finnis
is correct, although the reason I would give is one suggested above. Disease, capitulation,
and traffic accidents really are incompatible with health, victory and traffic safety. That is so
even though one cannot explain the meaning of these terms without explaining that they are
incompatible with these ends.
10 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

The rightness or wrongness of other actions does depend upon the

circumstances. There is no limit to the circumstances that might matter.
According to Aquinas, "actions are in singular matters."3 6 "An infinite
number of singulars cannot be comprehended by human reason.""
Consequently, when a person decides how to act, he is applying a universal
principle to circumstances which he must take into account as best he can.
He cannot, as Sudrez thought, extract the right answer from the principle
itself by identifying the conditions invariably attached to it.
To apply the principle in the circumstances he is confronting, he uses
practical reason, a term which encompasses a variety of abilities that can be
captured today by the phrase "good judgment." He needs "prudence,"
which is the capacity to judge rightly about an action to be taken, and which
comprises several kindred virtues that enable him to limit the circumstances
he considers. Since he cannot consider every circumstance, he must
consider "what is true in the majority of cases." He does so through
"memory" and "experience" which are parts of prudence." Since he
depends on experience he should seek advice from more experienced
people; indeed, he "stands in great need of being taught by others,
especially old people. . . ."39 In heeding their advice, he employs the related
virtue of eubolia, which is the seeking of counsel. Through the virtue of
sinesis, he consults "common rules" which have been devised for similar
situations. Nevertheless, he needs another virtue, gnome, to make
exceptions to the common rules and to "judge . . . according to higher
principles." Gnome is necessary because "it happens sometimes that
something has to be done which is not covered by the common rules of
actions, for instance, in the case of the enemy of one's country, when it
would be wrong to give him back his deposit [the sword]."'
Because a person cannot take account of all the circumstances that may
matter, he may be mistaken. Aquinas said "our counsels are uncertain,"
quoting Wisdom 9:14.4 Sudrez seems to have thought our counsels can be
certain, at least as long as our interpretation of the natural law is correct.
As the "natural law . . . is posited by right reason . . . [it] cannot deviate
from the truth, for if it does deviate, it is not right reason. ."42 When a

36. Summa theologiae 2-2, q. 47, a. 3.

37. Ibid., a. 3, ad 2.
38. Ibid., q. 49, a. 1.
39. Ibid., a. 3.
40. Ibid., q. 51, a. 4.
41. Ibid., q. 47, a. 3, ad. 2. The contrast is noted by Westerman, Disintegration of
NaturalLaw Theory, 105-7.
42. Tractatus de legibus et de legislatoredeo, lib. 2, cap. 16, no. 9.
2012 JAMES GORDLEY 11I

precept is known, applying it is a straightforward matter. The precept

"states the general rule prescribed for what is to be done; conscience, truly,
states the practical dictate as to the particular, wherefore it is an application
of the law to a particular work."' "There cannot be an erroneous law for
then, by that alone, it could not be law."" Conscience can err, but the
reason Suirez gives is not the difficulty of applying a general rule to
particulars. It is the difficulty of knowing what the rule truly is.
"[C]onscience not only applies a law as it truly is but a law as it is deemed
(existimatam) to be, and in this way there can be an erroneous
conscience. . . .'
As I have described elsewhere,46 this disagreement between Aquinas and
Sudrez as to whether the natural law changes with the circumstances reflects
a difference in their metaphysics, a difference that concerns the way in
which precepts of natural law exist. For Aquinas, they exist in the minds of
people. When a person is attempting to follow a precept, it exists "in act."
When he has the ability to do so but is not currently exercising that ability, a
precept exists as a "habit," like his ability to speak Latin or French. The
most general and ultimate precepts concerning what it means to live a
fulfilled human life exist in every human being. The precept that one
should return the sword exists in the mind of a person who is considering
how to act in one set of circumstances. The precept that one should not
return the sword exists in the mind of a person who is considering how to
act in when a person is considering how to act in another set. Precepts of
natural law that prescribe how its principles apply in circumstances that no
one is considering do not exist.
They do exist in the metaphysics of Sudrez. According to him "being ...
has a double meaning, by which it signifies either being as prescinding from
actual existence or being as actual existence."" In the latter sense, one can
say that there are elephants but there are no dragons. In the former sense,
one can say that there are both elephants and dragons since one is
"prescinding" from what animals actually exist. It is the same with natural
law. "Most properly," its precepts exist in the latter sense in "an actual
judgment of the mind." Nevertheless, they also exist in the former sense.
"[I]t is one thing to speak of the existence of precepts . . . and another to
speak of their actual obligation or exercise. Therefore, although one can

43. Ibid., cap. 5 no. 14.

44. Ibid.
45. Ibid.
46. "Sudrez and Natural Law," in The Philosophy ofFranciscoSucirez, ed. Benjamin Hill
and Henrick Langelund (Oxford: Oxford University Press, 2012), 209.
47. Francisco Suirez, Disputationesmetaphysicae, disp. 2, sec. 4, no 9.
12 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

postulate a state in which one precept is in use and another is not,

nevertheless, the law of nature is always the same, and made up of the same
precepts. . . ." Thus, prescinding from their "actual obligation or exercise,"
there can be precepts of natural law that prescribe how a person should act
under circumstances which no one is considering and which, perhaps, have
never arisen.
Etienne Gilson was deeply critical of this notion that things with no
actual existence can exist at all. "There are no such things," he said, "as
fully determined essences prior to their existential actualization. . . . The
Mattheus Passion was not an essence hovering in a limbo of possible
essences where Johann Sebastian Bach caught it, so to speak, on the
wing."4 8 In any event, according to Gilson, Suarez's metaphysics inspired
that of the 18th century rationalists. In his words, "Suarez begat Wolff." 9
Indeed, according to Gilson, "Suarezianism . .. consumed Thomism." By
the 18th century, the difference between the metaphysics of Suarez and
Aquinas had been "completely and absolutely forgotten.""o
Consequently, it is not surprising that, as we have seen, Wolff and Suarez
had a similar view of how the conclusions of natural law were related to its
ultimate principles. They both believed that the conclusions are logically
implicit in these principles. This method, as Wieacker noted, was taken
over by 19th century jurists who defined abstract concepts of private law
such as contract or property and tried to derive conclusions from them. The
19th century jurists would have been shocked at the idea that, by using this
method, they were implicitly subscribing to a rationalist metaphysics. Yet,

48. Etienne Gilson, Being and Some Philosophers(Toronto: Pontifical Inst. of Medieval
Studies, 1952), 211.
49. Ibid., 112.
50. Ibid., 118. It is still frequently overlooked. Unger seems to have thought that those
who believed in natural law had the sort of metaphysics to which Gilson objected, or at least,
he seems to have regarded the difference as irrelevant for his purposes. According to Unger,
in the theory of "objective value" which modem people reject, "[e]nds ... would be things
that exist in the world like triangles, if not like tables." Unger, Knowledge and Politics, 77.
In that theory, apparently, triangles would exist even if there were no triangular objects or
minds to conceive of triangles. Elsewhere he said, "In this tradition, essence is defined by
contrast to accidents, on the one hand, and to existence, on the other hand. . . . The two
definitions are connected because existence is an accident." Ibid., 32n1. Although Unger
cites Aristotle (Categories ii), the claim that existence is an accident is an interpretation of
Aristotle put forward by Avicenna for whom, in Gilson's words, "essences always remain, in
themselves, pure possibles and no wonder, since the very essence of essence is possibility."
Gilson, Being and Some Philosophers (Toronto: Pontifical Institute of Mediaeval Studies,
1949), 82. Consequently, Gilson regarded Avicenna's metaphysics as a precursor of that of
Sudrez and Wolff.
2012 JAMES GORDLEY 13

like Suirez and Wolff, they were treating these concepts as though they
were, in Gilson's words, hovering in a limbo of possible essences waiting
for jurists to bring them down to earth. Rudolph von Jhering satirized them
by imagining a "heaven of concepts" removed from earthly experience
which was the only place their ideas could exist." Oliver Wendell Holmes
used a similar image when he complained ofjurists who regarded the law as
a "brooding omnipresence in the sky."5 2 Although Suirez and Wolff did not
say that the natural law existed in the sky, they did not confine its existence
to beings that actually exist on the earth. Consequently, they had a method
like the one which Jhering and Holmes, and, later, Heck and Llewellyn were
to criticize: one in which the resolution of concrete cases was logically
implicit in legal precepts.
For Aquinas, as we have seen, conclusions about the natural law were not
necessary consequences of its ultimate principles. A person follows the
natural law by using practical reason. Indeed, "[1]aw is a dictate of practical
reason."53 Consequently for Aquinas, so far as natural law is concerned,
one cannot distinguish between deciding what action is right according to
law and deciding according to one's best judgment. Aquinas distinguished
the rule of law from the rule of men only when he considered the
governance of society. We can now see why this distinction made sense to
him.

III. LAW AND HUMAN JUDGMENT: POSITIVE LAW

A. NaturalLaw and Human Law

For Aquinas, as for Aristotle, the proper aim of government is the

common good of its citizens, a state in which they live the best life that
is possible for them. According to Aristotle, "[t]he form of government
is best in which every man, whoever he is, can act best and live
happily."5 4 According to Aquinas, those in authority need prudence to
promote the "common good" of the citizens. Prudence directed toward the
common good is "political prudence."

51. Rudolph von Jhering, "Im juristischen Begriffshimmel Ein Phantasiebild," in Scherz
und Ernst in der Jurisprudenz: eine Weinachtsgabefir das juristische Publikum, 3rd ed.
(Leipzig: Breitkopf and HIrtel, 1885), 245.
52. Southern Pacific Co. v. Jensen, 244 U.S. 222 (1916).
53. Summa theologiae 1-2, q. 91, a. 3.
54. Aristotle Politics 7.1. 1324a23-25.
55. Summa theologiae2-2, q. 47, aa. I 1-12.
14 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

One way in which those in authority govern is by making laws. Laws

are based on the natural law in two ways. They may be determinations of
certain general precepts like those a builder makes when he prescribes the
dimensions of a house. One cannot build a house that has no definite
dimensions. Similarly, it is a general precept that an evil-doer should be
punished, but someone must decide what that punishment should be.56 The
other way in which human law may be based on natural law is "as a
conclusion is derived from premises." In making a law in this way,
human authority is acting as a person does in following the natural law. He
begins with general precepts and draws a conclusion, through the exercise
of prudence, as to how one should act under the circumstances he is
considering. These laws are made according to natural law by the
"judgments of expert and prudent men ... based upon its principles."" In
such matters, Aristotle said, "we ought to pay as much attention to the
undemonstrated sayings and opinions of persons who surpass us in
experience, age and prudence, as to their demonstrations."
A human law of this sort, like other conclusions based on the general
precept of natural law, will not give the appropriate result in every
circumstance. As we have seen, Aquinas said that when the circumstances
call for a different action, the natural law changes. In such a case, a human
law should not be followed. Since "the lawgiver cannot take account of
every single case, he formulates the law according to what happens most
frequently, directing his attention to the common good. Consequently, if a
case arises in which the observance of a law would be hurtful to the general
welfare, it should not be observed. For example, suppose that in a besieged
city it is an established law that the gates of the city are to be kept closed,
and that this is good for the city as a general rule. Nevertheless, if it
happened that enemy is in pursuit of some of the citizens who are
defending the city, it would be a great loss to the city if the gates were not
opened for them. Consequently, in that case, the gates ought to be opened,
contrary to the letter of the law, in order to promote the common benefit
that the lawgiver had in view."o
Consequently, one proceeds in the same way whether one is making a
law based on the natural law as a conclusion on a premise or applying the
natural law to one's own situation. In following the law, in either case, one

56. Ibid., 1-2, q. 95, a. 2.

57. Ibid.
58. Ibid., ad 4.
59. Ibid., a. 4 and a. 4 ad 4.
60. Ibid., 2-2, q. 96, a. 6.
2012 JAMES GORDLEY 15

must take account of the circumstances. In following a law made by

human authority, one must act contrary to its express provisions if
circumstances arise which were not contemplated by the law makers and in
which following the law would not lead to the benefit that they had in
view. Thus the question arises, what is the point of having a law which is
based on the natural law as a conclusion upon a premise? A person
applying the natural law could reach the conclusion itself and consider
directly how it should apply to his own circumstances." The question is
like that put by Unger.

B. The Rule ofLaw

Aristotle did distinguish the rule of law from the rule of men.62 Aquinas
said that it was sometimes better for those in authority to rule by laws than
without them." We can now understand his explanation."
He put a hypothetical objection to government by law and then answered
it. The objection was that a judge will do better making case by case
decisions if he is not guided by law. He is a sort of animate justice which
is better than the justice found in laws.65 When Aquinas spoke of a judge,
he was not referring to the tasks performed by judges in his own day. Then
as now, they interpreted and applied the law found in authoritative legal
sources. He was performing a thought experiment. Suppose there were no
laws at all. Suppose each judge decided each case as he saw fit without the
guidance of any law. As we have seen, Aquinas thought that some laws
were related to natural law because they determined particular matters
which the natural law left unspecified such as the punishment for a
particular crime. The reason then for enacting a law which every judge
must follow is straightforward. There is no right answer at which a judge
could arrive, and the answer should be the same regardless of who is
judging. But the reason for enacting a law is not obvious when the law is
related to natural law as conclusion to premise. As we have seen, the

61. Thus Gilson said of Aquinas's view, "When human law is promulgated, it
embarrasses the vicious or rebellious man, but the just man conforms to it with so perfect a
spontaneity that it is as though, so far as he is concerned, civil law does not exist." Etienne
Gilson, The Christian Philosophy of St. Thomas Aquinas, trans, L.K. Shook ( New York:
Random House, 1956), 267.
62. E.g., Aristotle Rhetoric 1.1.
63. Summa theologiae 1-2, q. 95, a. 1.
64. We will consider how rule by law differs from rule by men. On Aquinas's views of
the rule of law as a constraint on government, see Finnis, Aquinas, 258-66.
65. Summa theologiae 1-1, q. 95, a. 1, obj. 2.
16 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

authority enacting the law would arrive at a conclusion in the same way as
any person who was trying to follow the natural law. If a judge saw that
under the circumstances, the enacted law would not lead to the right
conclusion, he would follow the natural law instead. Why encumber him
with an enacted law?
Aquinas answered that, nevertheless, government by law is better for
three reasons:
First, because it is easier to find a few wise men competent to frame
right laws, than to find the many who would be necessary to judge
correctly in each single case. Second, because those who make laws
consider long beforehand what laws to make, but judgment in each
single case has to be pronounced as soon as it arises, and it is easier for
man to see what is right by taking many instances into consideration
than by considering one solitary event. Third, because lawgivers judge
in the abstract and about future events, while those who sit in judgment
judge of things present, towards which they are affected by love, hatred,
or some kind of cupidity, by which their judgment is perverted.66
All three of these reasons have to do with human weakness. The first is
that we could not find enough wise judges to decide all the specific cases
that arise. The number of wise decision makers that we could put in
authority is small compared with the number of decisions they would
have to make. The cause, in part, is that we live in a fallen world.
Some people cannot decide prudently because their "reason is perverted
by an evil habit or an evil disposition of nature.6 But even in a perfect
world-in paradise if mankind never sinned-Aquinas said that some
people would still surpass others "in knowledge and virtue." They should
govern even in paradise. 8 Presumably, they should govern by law if
they were still in short supply compared with the number of cases to be
resolved.
Second, to get the right answer in a specific case, one needs a long
period of reflection particularly on other cases since "it is easier for man
to see what is right, by taking many instances into consideration, than by
considering one solitary event." The wisdom of the law can therefore
surpass that of a wise man left to himself. Indeed, the wisdom of the law
grows with human experience. According to Aquinas, "those who first
endeavored to discover something useful for the human community could
not take everything into consideration themselves, and so they set up

66. Ibid., ad 2.
67. Ibid., q. 94, a. 4.
68. Ibid., 1, q. 96, a. 4.
2012 JAMES GORDLEY 17

some institutions which were deficient . . . and . . . were changed by later

lawgivers.'
Lastly, Aquinas claimed that a decision is less likely to be biased by
"love, hatred, or some kind of cupidity" when it is made in accordance
with laws that are framed abstractly to deal with future events. If a
popular figure commits a crime or a member of an unpopular group is
accused of having done so, which would be more fair: to follow a pre-
existing law that provides that even popular people are to be punished for
their crimes, and that even unpopular ones cannot be punished without
trial? Or to have someone decide what to do on the spot without
reference to a law?
We have now reached a conclusion which some might reach
intuitively. We adopt the rule of law because we fear the rule of men.
The reason is not simply that men are subject to "love, hate and cupidity."
We would fear a government without law even if we were certain to be
governed by the virtuous.

C. The Role ofJudges

It is true, then, that when a law is based on natural law as a conclusion

on a premise, in principle, the judge could have arrived at this conclusion
himself. The reason he is required to follow the enacted law is the belief
that the law is more likely to be the result of superior judgmental ability
based on more extensive experience exercised by those who are less
prone to bias. The judge should not follow the law when he sees that it
will not achieve the purpose for which it was enacted because some
circumstance has arisen that was not contemplated by those who enacted
it. Absent such a circumstance, he must follow the law.
In common law jurisdictions, and, despite what is often said, in civil
law jurisdictions as well, judges also have another role. They not only
follow law but make it. But, given Aquinas's explanation of the rule of
law, this role should not be puzzling. Judge made law exemplifies the
traits that make the rule of law desirable, and these traits explain the
structure of our courts and the work of our judges and practitioners.
As noted, one problem with the rule of men is that there are more
cases to resolve than wise men to resolve them. That is a good reason for
the hierarchical organization of the court system. The judiciary does not
consist, as in Aquinas's thought experiment, of people equally
empowered to decide the cases that come before them. The harder cases

69. Ibid., 1-2, q. 97, a. 1.

18 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 57

go up on appeal. Lower court judges are by no means dumb, but one

hopes that the judgmental ability, or, as Aquinas would have said, the
prudence to resolve the hard cases is found in greater measure in the
higher courts. To the extent that is so, our hierarchy of courts addresses
the first problem Aquinas raised: the shortage of people with the
prudence necessary to decide a hard case.
Then there is the work that our lawyers and judges do. If Aquinas is
right, the wisdom of law can exceed even that of a very prudent person.
" [I]t is easier . . . to see what is right, by taking many instances into
consideration, than by considering one .. ." If that is so, prudent results
are not reached purely or even primarily by reflecting on the implication of
general principles. One can see more easily what is right by looking at
specific cases and then seeking to grasp the principle on which their
outcome should depend. We are fortunate, then, to have a system in
which lawyers research decided cases, draw analogies, filter out irrelevant
similarities and differences, and argue the importance of those that remain.
We are fortunate to have a system in which judges consider the many
cases culled for them by lawyers who themselves have examined many
more. Judges can then frame a rule exercising, in Llewellyn's words, a
"caution drilled by experience." In this way, the experience, and
sometimes the experience of centuries, can be brought to bear on the
decision of a single case. Moreover, a rule framed tentatively to explain
some cases can be tested and refined in the light of those that arise later.
We thus avoid the second disadvantage of the rule of even the most
prudent of men and women. We have a system for taking account of a
multitude of cases, and for refining rules over time as experience
suggests.
Third, when hard cases are decided by higher courts in line with prior
cases and with the rules tentatively framed to explain them, the decision
of an individual case is distanced to a great extent from the passions of
love, hate, and cupidity that can bias the result. We cannot remove their
influence completely, but we can do so better than if each case were
decided by an official with no prior cases and no law to guide him.

IV. CONCLUSION

A colleague of mine was impressed with the strength of the arguments of

the Critical Legal Studies movement and consequently puzzled by the
ability of the legal system to get on with its business anyway. He said that
perhaps it is like Mickey Mouse walking off a cliff in a Disney cartoon. He
doesn't fall until he looks down and realizes that there is nothing to support
2012 JAMES GORDLEY 19

him. If that were so, however, then the legal system should have begun to
collapse when the Critical Legal Studies movement raised questions about
its underpinnings which went unanswered, or, indeed, when the the Legal
Realists raised similar questions half a century earlier. That the rule of law
persists unsupported by modern theory suggests that there is a problem with
modem theory. The solution may be found in an older one.