Catholic faith speaker examines “rule of law”

Robert P. George, professor of jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University, delivered the College’s bi-annual Fay Vincent, Jr. ’60 Catholic Faith and Culture Lecture on Thursday night to a large crowd in Thompson Memorial Chapel. In his lecture, George sought to unify modern theories about justice and the rule of law with aspects of his own strong Catholic faith.

“My reflections on philosophical and cultural matters, as well as on matters of faith, are no doubt shaped in significant ways by my religious convictions,” George said.

Nevertheless, he reassured the audience that members of all faiths, and indeed those who have no religious affliation at all, would find something of interest to them in his talk.

He began by stating that while there is “no specific Catholic philosophy,” some philosophical positions, such as atheism, materialism and relativism, are completely incompatible with Catholic faith. According to George, the Catholic philosophical tradition is the “vast body of philosophical reflections. . . by Catholics over the centuries,” no matter their particular philosophical bent.

“I will be proceeding on the basis of an entirely. . . Catholic understanding of philosophy,” he said.

George’s focus turned to the ideal of the “Rule of Law,” and its centrality to the Western tradition of political order. He quoted the great Catholic philosopher St. Thomas Aquinas: “It belongs to the very notion of a people, that the people’s dealings with each other be regulated by just precept of law.”

“Western tradition affirms that justice itself requires that people be governed in accordance with the principles of equality,” George stated.

That tradition was shaken to its core in the first half of the 20th century, when brutal fascist regimes sought to dominate both their own people and their neighbors. The Nazi regime, to take the most prominent example, showed a blatant disregard for basic human rights. In its smoldering ashes, George explained, legal philosophers found a new renaissance in the compelling question, “Did the Nazis constitute a legal regime, a regime of the law in any meaningful sense?” The same sort of questions would be asked much later, after the collapse of the Soviet Union, centering on the “role of legal procedures and institutions in creating and sustaining decent democratic regimes.”

According to George, these questions led Pope John Paul II to stress the moral importance of the rule of law.

“It’s one thing to refer vaguely to this amorphous concept of the ‘rule of law,’” George said. “It’s quite another thing to put rigor into the concept by explicating its concrete content.”

To that end, George brought the works of Lon L. Fuller, a Harvard Law professor and legal philosopher, into play. In the 1960s, Fuller enumerated “eight constituent elements of legality,” a feat of mind, which George called “one of the signal achievements of legal philosophy in the 20th century.” These eight elements, “prospectivity of legal rules…, the absence of impediments to compliance by those governed. . ., the propagation of rules. . ., the clarity of rules. . ., the coherence of the rules with each other. . ., the constancy of the rules over time. . ., the generality of application of the rules. . ., and the congruence between official action and declared rules,” represent Fuller’s rigorous explanation of the content of the rule of law.

“It was a mark of Fuller’s sophistication, I think, that he noticed that rule of law is a matter of degree,” George said. “Its constituent elements are exemplified to a greater or lesser degree by actual legal systems.”

According to George, Fuller also made the radical claim that these eight elements, though purely procedural and amoral when taken separately, together constitute an “internal morality of the law.” This claim flew in the face of the proponents of legal positivism, the “dominant school of analytical legal philosophy at the time,” who stood by their belief that “there is a necessary conceptual separation between law and morality.”

One of Fuller’s chief critics, the Oxford legal philosopher Herbert Hart, “accused Fuller of engaging in semantic sleight of hand,” George said. Hart believed that procedure shouldn’t be associated with morals as Fuller had directly done.

After all, the Oxford man wrote, even some of history’s most wicked rulers followed the legal procedures set down by Fuller out of their own self-interest. Fuller, however, stuck to his guns; he claimed that history had shown that the most evil regimes had consistently trod upon the principals of legality when it was in their self-interest to do so. George agreed with Fuller’s assessment.

“It is important to see that Fuller’s claim is not that regimes can never perpetrate injustices, even grave injustices, while respecting the rule of law,” he said. “It is the weaker, yet by no means trivial claim that those regimes which respect the rule of law do not, and cannot. . . degenerate into truly monstrous tyrannies like the Nazis.”

Fuller’s logic converted the influential legal philosopher Neal McCormick, who theorized that wherever the rule of law is observed, the state treats its citizens as rational agents due respect.

“McCormick’s revised understanding strikes me as sounder than his rivals’,” George said.

George pointed out that critics of Fuller/McCormick are correct to say that a respect for the rule of law does not end the moral obligation of rulers to their citizens, and does not “immunize a regime to injustice and tyranny.” But, George does put enough stock in the work of the former two to put forth his own “modest thesis” on the morality of the rule of law: “An unjust regime’s adherence to the procedural requirements of the rule of law has the virtue of limiting the ruler’s freedom of maneuver in ways that will generally reduce to some extent their capacity for evildoing.”

George then ended his lecture by bringing in elements of his Catholic faith to help flesh out his case for the morality of the rule of law.

“Where the rule of law is respected, there exists a reciprocity between the ruler and the ruled. . .. Given the dignity of humans, this reciprocity is more than merely a means to other ends. As such, it ought to be protected and advanced when possible,” he said.

George stated that this protection for the rule of law is merited by humans because of our “practical rationality,” which stands in contrast to the instrumental rationality of, in George’s example, computers.

“My proposition is that the rationality which entitles us to the sort of respect exemplified in the rules of law is not primarily the rationality that allows people to solve mathematical problems. . ..” he said. “It is rather the rationality that enables us to judge that mathematical problems are to be solved. . ..”

According to George, our identity as practically intelligent and rational beings allows us to have free choice, and exercise “spiritual powers. . . the power to bring into being that which one reasonably judges to be worth bringing into being, something of value” Humans can bring into being things, which they are not “caused” to bring into being, through the dual assets of reason and freedom.

“What is God-like, albeit of course in a very limited way, is the human ability to be an uncaused causing,” George said.

In a final rhetorical flourish, George used this logic to connect the cryptic biblical teaching that humans were created in the image of God with the philosophical proposition that humans have dignity “flowing from [our] nature. . . as practically intelligent creatures.”

“They must be ruled in ways which accords them respect as rational agents; among other things. . . with the rule of law,” George concluded. “… [This] helps to explain the stress laid upon the ideal of the rule of law as a fundamental principle of political justice in the tradition stretching from the early and medieval Christian thinkers to John Paul II.”