The Architecture of Law: Rebuilding Law in the Classical Tradition
By Brian McCall University of Notre Dame Press, 560pp, £55/$70
Oliver Wendell Holmes’s famous dictum, “the common law is not a brooding omnipresence in the sky”, today serves as an epitaph for the natural law tradition. In its place, legal positivism became the dominant theory of jurisprudence. Its dominance goes across ideological bounds. Compare Antonin Scalia on the Right with Joseph Raz on the Left – both very different in their ideological orientations, but nonetheless equally ardent legal positivists. Legal positivism is so dominant that its critics have felt forced to adopt its underlying premises and assumptions as the starting point of any critique.
I say they have felt forced but, in fact, positivism’s assumptions are so ingrained that even its critics cannot conceive of alternative starting points. Thus, positivism today frames the debate – its assumptions are the assumptions of both its adherents and critics.
Enter Professor Brian McCall. In The Architecture of the Law, McCall defends classical natural law jurisprudence against legal positivism and the new natural law jurisprudence. Classical natural law jurisprudence refers to the long, somewhat varied jurisprudential tradition grounded in classical and medieval thought. From Cicero to Gratian to Aquinas, this was the bedrock that the Western legal tradition grounded itself on. Aquinas’s definition of law is representative: law is “an ordinance of reason promulgated by the competent authority for the sake of the common good”.
Classic legal positivism arose primarily with the 19th-century English philosophers John Austin and Jeremy Bentham. Law is seen as pure command backed by threat and force. Modern positivism, a 20th-century development of classic positivism, rejects the pure-command view, but it too severs the connection between law and morality and the common good.
McCall bluntly rejects these schools root and branch. There is no ralliement here, no concessions to popular taste or academic trend. McCall unapologetically works in the Thomistic natural law tradition.
Unlike prominent new natural lawyers, who either omit God from their scheme altogether or hide Him behind a pseudo-algebraic façade, McCall unabashedly bases law on classical philosophical and theological precepts.
While committed opponents of traditional natural law may not be convinced, McCall’s presentation is nonetheless extremely lucid, clear and thought-provoking for those who have become uncomfortable with the supposedly self-evident principles of modern jurisprudence – principles which deny any real connection between law and morality and nature.
One of McCall’s merits is that he draws upon a great tradition of Thomism and Catholic jurisprudence, eg the medieval jurists, Charles de Koninck, Henri Grenier and Alasdair MacIntyre. His sources form a rich, varied tradition that was never actually refuted, but merely pooh-poohed and ignored.
The following may illustrate some of its value. Holmes’s quotation above was meant to show roughly that the common law (and the somewhat crude natural law jurisprudence underlying it) did not in fact dictate particular legal results in many (perhaps most) cases.
There is, for instance, no a priori reason to drive on the left rather than the right. Hence, appeals to some “brooding omnipresence in the sky” were really appeals to the disguised, real drivers of legal outcomes. McCall shows masterfully that natural law should not be conceived of as an exhaustive code in the sky, but rather as a set of general moral principles, from which particular laws are determined through human agency and choice. Thus, the natural law principle might be roughly “citizens should be kept safe and avoid harm”. A priori, it is true: there is no reason to drive on one particular side. But to secure the common good, the legislature must concretise the general principle of reason through an act of will (ie an ordinance). Then driving on the left (or right) becomes binding on the citizens.
There isn’t space to fully explore McCall’s trenchant observations here, but it is one of very many tours-de-force in this book. Beyond his forthright, blunt insistence on unfashionable tenets of classical thought, for the Catholic reader there are only a few drawbacks to this book. McCall’s first chapter has a somewhat sloppy (though ultimately sound, read charitably) exposition of the common good.
Finally, his written style, though clear, is often clunky, and relies perhaps too heavily on metaphors. Overall, however, The Architecture of Law is a brilliant exposition of the classical view of natural law.