Natural Law, Positive Law, Slavery, and Nuremberg: Toward a Pragmatic Legal Criticism
Issue #69, June 2004
Because African slavery differed in significant ways from previous forms of Western slavery (particularly in its severity and in its caste structure), and because African slavery differed from accepted forms of indentured servitude that were practiced early in the North American colonies, an extended effort had to be made by the Southern states to define/create a new master/slave relationship. Simply, for slavery to have legal significance in the law the slave identity of Africans forcefully brought to North America had to be rhetorically constructed.
This essay highlights (a) one perspective for understanding that construction; (b) philosophical difficulties that the legal system had in reifying slavery; and (c) concludes by offering a pragmatic view of legal criticism — via a critique of the Nuremberg trials that followed the Second World War — that makes it easier for critics to engage morally with legal reasoning that leads to social injustice.
Richard Weaver and the Politics of Definition
One of Richard Weaver's most influential contributions to criticism is his argument in The Ethics of Rhetoric that the manner by which an individual argues is often a better indicator of that person's values than his or her specific arguments. For example, Weaver argued that Abraham Lincoln was more conservative than the way he has been portrayed because of the argument types he utilized. In developing this idea, Weaver postulated a typography of argument forms (genus and definition, similitude, cause and effect, and authority), each of which correlates with political and ethical norms and are hierarchically situated, with definition being the "highest" or most ethical form:
The argument from definition . . . includes all arguments from the nature of the thing. Whether the genus is an already recognized convention, or whether it is defined at the moment by the orator, or whether it is left to be inferred from the aggregate of its species, the argument has a single postulate. The postulate is that there exist classes which are determinate and therefore predicable. In the ancient proposition of the schoolroom, "Socrates is mortal," the class of mortal beings is invoked as a predicable. Whatever is a member of the class will accordingly have the class attributes.
Weaver, widely considered a major progenitor of modern conservatism in the United States, one who assumed that political conservatives can best perceive the correct structure of the world and create policies to respect that structure, considered the argument from definition to be an expression of political conservatism. In contrast, Weaver associates the argument from cause and effect with socialism and weak reasoning, because this argument form ignores the essential qualities of a thing and focuses instead on contingent fluctuations unmoored from essential (or "real") properties to which human society must conform. In a well-known passage from Ideas Have Consequences (1984), Weaver wrote:
The most portentous general event of our time is the steady obliteration of those distinctions which create society. Rational society is the mirror of the logos, and this means that it has a formal structure which enables apprehension. The preservation of society is therefore directly linked with the recovery of true knowledge. For the success of our restoration it cannot be too often said that society and mass are contradictory terms and that those who seek to do things in the name of mass are the destroyers in our midst. If society is something which can be understood, it must have structure; if it has structure, it must have hierarchy; against this metaphysical truth the declamations of the Jacobins break in vain.
The political importance of definition is grounded in Weaver's ontological view of truth; definition involves the power of the keen mind in comprehending the correct hierarchy in which any object can be described. The person using such argument makes, in Weaver's words, the "highest order of appeal," which is a thing's "unchanging essences or qualities." In other words, definition draws its strength through an understanding of universal order, which, according to Weaver, "is a paradigm of essences, of which the phenomenology of the world is a sort of continuing approximation." Thus, for Weaver, the argument from definition is ethical because, of all the argument forms, only the definitional form can capture the "permanent," the "universal," and the "essential," clearly demarcating that which is constant against that which is fleeting and ephemeral. For Weaver, such argument type involves a "philosophy of being" and ascribes to being the foundation of truth.
Although many of Weaver's arguments have appeal among modern conservatives, more liberal theorists have taken issue with the "comprehensiveness" of a definitional argument assumed by Weaver. For example, Brian McGee argues that such comprehensiveness is nothing more than rhetorical selection, the general as transformed into immutable categories: "The act of definition isolates what might at the moment seem to be particularly important ideas or attributes of a concept, but those important ideas or attributes could be called into question in the future, when a different set of attributes seems more central to describing the term at hand." Definitional arguments only appear to be truthful, as the appeal of the argument is grounded in the human propensity to assign a truth value to the defined terms encountered. This propensity is reinforced by an educational system that encourages students to "understand definitions as objectively true and right." Traditional education, as in the banking model, proceeds from the premise that authorities sanction knowledge (i.e., they offer definitions by which the world becomes known). Implicitly, such authority urges listeners to accept a certain factual reality "that must be taken as given and cannot be disputed." Rote education and much professional training (including legal training) proceed along this line.
With tactics such as definition, cultural persuaders create knowledge and effectuate control over that which they describe. For Weaver, such control is the result of an understanding that codifies and cements social relationships. Since many white people believed that African people represented the uncontrollable passions of the primitive human, relations between them had to be carefully circumscribed and made explicit. Such positioning allowed comparison between the two races to establish categorical distinctions between them, for which a truth value then could be assigned:
Definition must see the thing in relation to other things, as that relation is expressible through substance, magnitude, kind, cause, effect, and other particularities. It is merely different expression to say that this is a view which transcends: perspective, detachment, and capacity to transcend are all requisites of him who would define . . .
— Ethics of Rhetoric
Utilizing such tactics, the "transcendence" of the white race could be read into the text (legal, social, or otherwise) defining the two races as separate and hierarchically situated. To the extent that white people felt "brought down" or threatened by the African's presence in society (or "blood," as in the case of anti-miscegenation laws), the so-called "primitive" state of the African needed discipline and control, as supplied by the institution of slavery. The more slaves in a community, the more volatile the situation for whites, and, thus, the greater the need for systemic control.
This system of control can be understood as involving what Eugene Genovese identified in Roll, Jordan, Roll (1974) as the "hegemonic function of the law." In Southern slave society "the law, even narrowly defined as a system of institutionalized jurisprudence, constituted a principle vehicle for the hegemony of the ruling class." The law in the context of slavery was not a passive or reflective force in society; rather, the law constituted an active "partially autonomous force." According to Genovese, the effect of this hegemony was "to assure people that their particular consciences can be subordinated — indeed, morally must be subordinated — to the collective judgment of society." In other words, the judiciary — through its declared legal opinions — played a critical role in constructing the slave persona of Africans in the United States and of effectuating systemic white control over them.
Debate Between Natural Law and Positive Law
The judiciary, however, faced a significant problem as they sought to reify the hegemony of the white race. That problem was the concept of natural law. Although the concept of natural law has ancient origins in Western culture, the modern expression of natural law became politically and culturally poignant as a result of the European Enlightenment. In practical terms, natural law was an important animating ideology for both the US and French revolutions. When the leaders of these revolutions grounded their agitation in the moral mantle of natural law, they energized an idea that has, in the words of Kathleen Jamieson, "haunted man since the inception of civilization." This point is particularly true in North America, where the ideology of the US revolution clashed fundamentally with the constitutionally codified practice of slavery.
As Jamieson notes in her essay "Natural Law as Warrant," the appeal of natural law is part of a human psychological need "to believe in a just and ordered universe." As with religious appeals, people who suffer often respond to the experience of suffering or injustice by making an appeal to some idealistic force above the contingent world to mediate on their behalf. Such an appeal is an effort by humans to re-describe their powerlessness. Because human beings are at the mercy of the natural world, they have invented a God figure to make sense and remedy their pain and suffering. Against human jurisprudence, which has historically been corruptible and self-serving of elitism, the appeal to natural law petitions for relief in an "ever-just, unchangeable law above the law." Since natural law is argued to be unchangeable, the person who evokes such law, according to Robert Frank, "appeals to self-evident principles that can be known by all humans." For instance, Thomas Jefferson justified breaking colonial ties to England in The Declaration of Independence by appealing to the "Laws of Nature" and to "Nature's God." These entities, argued Jefferson, "entitled" the colonies to independence. Such independence was further warranted because God granted people "unalienable Rights" to pursue life, liberty, and happiness. As Jefferson asserted, such propositions are "self-evident." The role of the state is to protect and to advance these rights.
Implicit in Jefferson's argument is the assumption that there exists a necessary connection between law and morality. Law, which derives from divine order or natural rights, is moral by virtue of its a priori status as part of the inherent order of things. Law, in this sense, is similar to the law of gravity — it is a force whose truth is its influence. Other types of laws, such as human laws, are lesser laws. These laws can also be moral, but their moral grounding depends upon the higher order of divine or natural law. In Jefferson's narrative, state laws are only moral to the extent that they "secure these Rights" of life, liberty, and happiness. To the extent that government fails to protect the ability of individuals to seek these goods, the government betrays the "social contract" (in Rousseau's words), and becomes a non-legal entity. Under such circumstances, people assume the right "to alter or to abolish it, and to institute new Government." The colonists presented the King of England with this reasoning, along with a list of grievances documenting England's transgressions of natural law, to justify their moral right to break from the authority of Britain. Such rhetoric, although an inspiring rallying cry for the Revolution, presented practical problems for the Southern judiciary following the Revolution who wanted to deny black people the right to evoke natural law in an argument for emancipation. The Southern judiciary countered the argument of natural law by evoking the argument that, within a democracy, positive law trumped natural law.
Basic to this issue is the question of whether there is a necessary connection between law and morality. Natural law theorists postulate a necessary connection between law and morality for law to "really" be law. "Morality" is defined as some universally true ethical position, akin to Kant's moral imperative or to a religious ethic. Natural law theorists seek to identify specific legal limitations and principles governing a legal system — such as the protection of private property against government appropriation — and to elevate this protection to the status of eternal truth. Governments that violate this law offend the natural order of proper society and will suffer the consequences. In short, for laws to be deemed sound, they must be traced to some higher principle that is unchanging. God, nature, or "reason" may ground such a principle. Antithetical to this reasoning are arguments from circumstance. For natural law theorists, the important task for government is to design ontologically correct laws and to apply those laws in such a way as to render a "correct" judgment. For example, implicit in the argument that "slavery is wrong" is the assumption that no contingencies warrant a violation of some sacred freedom inherent in being a human being.
The legal positivists, on the other hand, maintain that there is no necessary connection between law and morality. As John Austin states in The Province of Jurisprudence Determined (1955), "The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; either it be or be not conformable to an assumed standard, is a different inquiry." Legal positivists claim that any law is law, including the law of slavery. Such law may be repulsive, but to deny its legality would be to ignore the fact that someone such as John Brown could be adjudicated a criminal and executed for violating the law. Although contemporary society can honor John Brown as a hero and respect him for his crime, the fact remains to positivists that the government was not "mistaken" in condemning him. Simply, the law is no less law merely because people find it morally reprehensible. With such reasoning, legal positivists urge society to challenge unjust laws, even to break them, as they remind society that no law per se demands a duty of compliance other than the "duty" that can be materially coerced by fear or force.
Rather than having some grounding in a notion of "unchanging human goods," laws are considered to be the result of social conventions such as "commands," "social rules," or other norms that are not necessarily moral norms. Jeremy Bentham and Austin both argued that the law is the command of power by a sovereign and that the idea of law is content-neutral. Austin, for example, rejected English jurist William Blackstone's assertion that no human law that conflicts with God's law is obligatory or binding. Austin argued that human laws do not lose their authority when they conflict with divine law (often interpreted as natural law). Such laws, in fact, exist and are continually enforced by the courts:
Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that the human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity.
— The Province of Jurisprudence Determined
Between these two theories of law, legal positivism is the more persuasive legal theory for many people. As critical theorists frequently argue, there is no "God's eye view" from which society can ascertain any moral truths, such as those necessary to ground an ahistorical view of morality. Simply, there is nothing to see "correctly"; there are only shifting webs of contingency. This position does not make critical theorists moral skeptics, at least insofar as that term connotes a negative or irrational quality. As discussed below, questions of morality are extremely important in thinking about law, but they are important in ways that are different than in an essentialist search for moral certainty, understanding, or philosophical clarity. Notions of certainty, understanding, and clarity are important ends for scientific research, but they are less useful or attainable in the pragmatic legal criticism advocated here. Similar to Vaclav Havel's sense of politics in The Art of the Possible (1997), my sense of legal criticism derives "from a strong and utterly personal sense of responsibility for the world, a politics deriving from the awareness that none of us — as an individual — can save the world as a whole, but that each of us must behave as through it were in his power to do so."
Legal positivism, however, is an incomplete system of legal philosophy. Although the issue of the separation of law and morality may be important for an academic discussion of the "nature" of law, the practice of legal criticism does not depend on theoretical orthodoxy. Pragmatic approaches to legal criticism are viable. A social critic of law can acknowledge that human morality is contingent and unconnected to legal norms, and, at the same time, recognize that humans impose moral norms. These moral norms can serve as a ground for which the morality of a law can be judged. Under this view, slavery is wrong, but not because slavery is an "unnatural" human social position or because slavery displeases God. Rather, slavery is wrong because slavery is hurtful, degrading, selfish, and repugnant, leading to militarism, heightened internal security, and to the impoverishment of the non-slave labor community. Slavery, in a pragmatic sense, is counter-productive to a world in which peace, prosperity, mutuality, social stability, and interdependence between all people should be considered normative values. The same can be written about Nazism, the subject that follows.
Pragmatic Legal Criticism: An Example
The punishment of Nazi war criminals following the Second World War provided a high-profile instance in which legal theorists were able to study the separation of law thesis. Natural law was central to the legal theory of the prosecution. The prosecution had to rely on natural law theory because most of the actions of the defendants were recognized as being legal under the judicial system of the Third Reich. In fact, the Nazi defendants actively evoked logical positivism in defense of their actions. This defense was rejected, and natural law theorists proclaimed a victory over logical positivism. Such reliance on natural law to condemn the defendants was arguably misguided. Although the Nazi leadership clearly deserved punishment, there is significant reason to doubt the motives and innocence of the governments sitting in judgment of the defendants. When contemplating the issue of justice, we should remember that the power to punish is not the same as the power to effectuate justice.
The fact that many hundreds of Nazis responsible for horrible atrocities were not punished due to their utility in fighting the Soviet Union and advancing US military science indicates that the Allies (minus the USSR) were not as disgusted with the Nazis as the public discourse surrounding the trials suggests. This, along with atrocities committed by the Allies themselves (before, during, and after the war), suggests that punishing the Nazis had less to do with justice, and more to do with justifying the victors' political priorities. Thus, the Nuremberg trials were disingenuous, undermining the ground on which an appeal to natural law is situated. Specifically, by cloaking their expression of power in the language of natural justice, the Allied victors created a self-serving good versus evil dichotomy. A person can be steadfastly anti-fascist and still argue that the Second World War was not a battle between "good" and "evil." The defeat of fascism was necessary, but not because the Fascists were morally wrong and the Allies morally right. Rather, compared to the Allies, the Fascists were more vicious, cruel, and reprehensible. The fight against fascism was not grounded in "justice" but in necessity. For many millions of people, living on the same planet with the Fascists was simply not possible. People who desire to attach the label of "evil" to the practices of the Nazis should be prepared to make similar arguments about their own societies. The Nazis were different only in the degree to which they practiced their cruelty and intolerance. Because people typically do not engage critically with the selfishness and crimes of their own society, their natural law discourse often rings hollow.
The Allies did not need a theory of justice to punish the Nazis, as much Nazi behavior invited retribution and vengeance. The problem is not that the Allies punished some Nazis but that they willfully let many others go unpunished for political reasons. The same is true for the Allied treatment of the Japanese leadership during the war. Very few of the Japanese (who were as cruel and murderous as the Nazis in their treatment of the Chinese, Koreans, and other Asian peoples they conquered) were punished, as most were enlisted in the new struggle against the mainland Chinese Communists who emerged from the war in control of China (as well as the communists who controlled North Korea).
Using African slavery and the Nuremberg trials as examples, we have reviewed the debates surrounding conflicting influences of natural law and positive law, rejecting the rhetoric of both in favor of a pragmatic critique of social injustice. This pragmatic concern rejects metaphysical and positivist rationales and rests on the assumption that an inclusive concern for the well-being and equality of all people is preferable to any system in which individual interest (e.g., greed and selfishness) become the basis for the social, political, and legal orders. It encourages people to offer critiques of specific laws based on standards that offend their moral imaginations, and not on some abstract moral standard or legal principle. Fundamental to this task is for critics to use language that people can rally behind to enact pragmatic and imaginative visions of social justice.
Omar Swartz holds a J.D. (magna cum laude) from Duke University and a Ph.D. in Communication from Purdue University. He is an assistant professor of communication at the University of Colorado at Denver. His recent books include Persuasion as Critical Activity (2001); The View From On The Road: The Rhetorical Vision of Jack Kerouac (1999); Socialism and Communication: Reflections on Language and Left Politics (1999); and The Rise of Rhetoric and its Intersections with Contemporary Critical Thought (1998).
"Rhetorica," from Margarita Philosophia, 1508. Portrait of Jeremey Bentham (1748-1832) Image of Nuremberg trials from US National Archives and Records Administration.