Decorating the Structure: The Art of Making Human LawJournal of Catholic Legal Studies (2014)
This article continues to develop the theme of law as architecture begun in two published articles, The Architecture of Law: Building Law on a Solid Foundation, the Eternal and Natural Law and Consulting the Architect when Problems Arise: The Divine Law. Having considered the foundation and framework of human law, this article turns to the decoration of the structure through the craft of human law making. It examines the process whereby the natural law is determined in particular political communities. Human law is the craft of particularizing the general principles of natural law in a community’s laws. It relies on a necessary relationship between speculative and practical knowledge. It argues for an under-determination by natural law which is completed by a dialectic relationship between developing community customs and statutory ordinances. Re-examining traditional natural law principles from sources ranging from Cicero to Gratian and Aquinas, i.e., the requirement that law must be rooted in reason, the necessity that statutes be confirmed by the community, and the possibility that customs can abrogate statutes, the article calls for a more complex understanding of the law making process. The paper argues that human law can only be produced well when it emerges through a rational and ongoing interaction between community customs and natural law principles, sometimes confirming longstanding customs, sometimes refining them but sometimes uprooting them when they transgress the natural law. The paper concludes by applying the metric for understanding human law as craft through a rational evaluation of customs to some critical issues in legal theory today. The article argues that the common law system with its reliance upon judicial decisions is more in harmony with this vision of law making than comprehensive civil law codes. The diminishing influence of common law jurisprudence has given way in American to the proliferation of a sea of statutes attempting to replicate a comprehensive legislative solution divorced from the developing customs of the community. One negative result of this turn in jurisprudence has been a legitimate challenge to the adage that ignorance of the law is no excuse. Divorcing law making from this dialectical process of communal development and legislative pruning has produced a legal system inundated with laws but which is becoming increasingly lawless.
- Natural Law,
- Common Law,
- Civil Law,
- Roman law
Citation InformationBrian M McCall. "Decorating the Structure: The Art of Making Human Law" Journal of Catholic Legal Studies Vol. 53 (2014)
Available at: http://works.bepress.com/brian_mccall/16/