The Home of American Intellectual Conservatism — First Principles

December 13, 2017

Eric Voegelin on the Law and the True Substantive Order
Lee Trepanier - 11/30/09
Eric Voegelin

The Nature of the Law is Eric Voegelin’s comprehensive and systematic account of law, based on his realization that law’s historical existence is inextricably bounded to society’s. Rejecting the positivist approach toward law, such as Hans Kelsen’s “pure law” theory, Voegelin adopts the Aristotelian method, where one begins with ordinary discourse about law and compares these statements with the experiences underlying the law itself. Selecting those experiences that move forward our understanding of law, Voegelin ultimately reaches at the law’s essential nature as ontological and the structure of the society which the law orders and articulates.

For Voegelin, the law is the substance of order that secures human beings in society, whether it is the classical Greek philosophers who ascertain the law’s true contents or the modern prince who decrees positive law in conformity with natural ones. But with the rise of secularism and sociological jurisprudence, the question of the law’s substance as true order is ignored altogether. Contemporary analysis of law does not advance our understanding of the law because of its non-normative nature: it has no criteria to refer to other than itself. To remedy this situation, Voegelin must delve into an analysis of the society in which the law exists in order to uncover a normative standard to evaluate the law’s true order.

According to Voegelin, the law exists in a state of tension with society’s social order, with the balance of the relationship weighed more toward society than the law. He illustrates this point by showing that the validity of constitutional change transpires not as a legal process but only when society’s order is shaped by extralegal sources, particularly when the authority in society articulates an order that conforms with ontological true order. The law, therefore, is not the rules and procedures of a particular code; rather, it articulates and translates all of society’s efforts in establishing an existential order that conforms to ontological truth. The law is the sum of all of society’s substances to establish right order.

Society’s social order has a relationship not only with the law itself but also with the true substantive order of being, whether articulated as Aristotle’s right by nature or as Aquinas’s natural law. Though society’s social order exists prior to the law, the law does not articulate society’s order because the order of society is not inherent in it: society must refer to a criterion outside of itself for its own order. This criterion is the true substantive order of being that includes humans as participatory creatures in their relations with society, the world, and transcendence. As participatory creatures in all of these aspects of being, humans exist in a state of tension between the existential order of society and the true substantive order of being. Society thus seeks its normativity in an order of which it partakes but ultimately is not a part.

It is the realm of human action in the form of law that society’s social order moves toward the true substantive order. Discovered in the order of being, the law receives its normative nature and is communicated to society via the legal profession. Not surprisingly, Voegelin reserves a place for philosophers in the legal profession to articulate the true substantive order, even though such an order may not be possible to enact. However, such a vision, as reflective of the true substantive order, would be able to provide future direction for the current law and its profession.

This complex of the law and its relationships to society’s social order and the true substantive order of being clarifies Voegelin’s account of the law itself: it possesses an ontological existence in the social context of society; it provides normative direction for human action; and it provides order for society as it corresponds to true substantive order. Because the law exists in a social context, its content must always remain concrete instead of abstract and seek to accomplish the ends of society as much as possible under existential conditions; and because this social context sets the parameters in which law operates, a genuine study of the history of law must also be a study of the history of societies.

The most important events in the history of societies are those that differentiate normative sources of authority from their compact experiences and symbols of myth: insights into the order of being that clarify the understanding of our relationship to society, the world, and transcendence. For Voegelin, there are three paradigms for law in the history of societies: (1) the law in the context of cosmological society, where order corresponds to the rhythmical seasons of the cosmos and is articulated as myth; (2) the law in the context of societies that have experienced revelation or reason, where the former is articulated as transcendence and the latter as philosophy; and (3) the law in the context of societies that both reason and revelation are present in the authoritative sources of order.

The balance of these relationships among power, reason, and revelation is the condition of true order in Western civilization in contrast to the societies that are ordered with Gnostic elements fused with authoritative power, such as in Communist or National Socialist states. The Gnosticism that Voegelin decried is the claim to absolute certain knowledge of the fundamental principles of reality, thereby committing the error that humans can ultimately understand the order and mystery of being. Gnostic movements have normative features, such as an obsession with temporal evil that is caused by social disorganization rather than a condition of human experience and that the salvation from this evil can be achieved through a historical process dictated by action of those who possess this special knowledge. This Gnostic order creates a fourth type of law where the ordering elements of society are rooted not in reason or revelation but in grotesque fantasy and the destructive whim of madmen.

In short, the law for Voegelin is part of the order that society creates for itself through its representative authorities either for the common good, as part of the true substantive order of societies, or for private gain, as in Gnostic ones. Contrary to the positivist school of thought, Voegelin believes that the law ultimately is teleological in nature and socially-bound in human action. As part of a complex of society’s social order and the true substantive order of being, the law secures and articulates the order of society which is communicated to the people by the legal profession. The law thus is both a means and an end for Voegelin: it secures the order of society while simultaneously it searches for what that end is.

Another way of thinking about this is that the law for Voegelin is both normatively-bound and existentially-bound. It is normatively-bound by the substantive order of being (or its Gnostic counterpart when the law is derailed) and therefore the law is a type of ends in uncovering the correct order for society; it is existentially-bound by society’s historical and concrete existence and therefore the law is a type of means in securing that order. The law resides both in the substantive order of being as well as in the social order of society. Being between these two sites places the law in a peculiar position where it is neither entirely procedural, as in the account of positivism, nor entirely substantive, as the law is claimed by some normative schools, like natural law.

This understanding of law is dismissed today, as Voegelin had recognized during his own time, “because our cultural environment has become both antireligious and antiphilosophical.” Elsewhere in The Nature of the Law, Voegelin speaks of the “state of philosophical disintegration that is manifest in normative jurisprudence” with the rise of secularism that separates legal theory from philosophical inquiry. This emphasis on the change in the culture from the philosophical to the philistine suggests that Voegelin believed that the social order of society had more of an influence on our understanding of the law than the law’s relationship to the substantive order of being. That is, the law as conceived is more dependent upon the social order of society than it is on transcendence.

If Voegelin is correct that society’s social order has a greater influence on the law, and this order has deteriorated to such a point that societies are now tail-spinning ever downward into a spiral of continual decay, then what we can do about this situation, particularly with respect to the recovery of law as both a means and an end for true substantive order? Certainly one can call for a reform for the social order of society to make it more conducive to religious contemplation and philosophical inquiry, but this will take time, perhaps centuries, and will require social organization at all levels of society. For philosophers, the task is more specialized and therefore has less social impact but nonetheless is as important. The philosopher must redirect the study of scholarship, such as law, to the societal and historical context, from where the true substantive order can be discovered, learned, and passed down to students.

Consequently the study of law itself absent a societal and historical context becomes a meaningless exercise in the examination of procedures and processes. Likewise, the study of law within a societal and historical context but without seeking any normative substance, such as in legal positivism, is also a futile quest. For Voegelin, the study of the law requires both a societal and historical context as well as a search for a normative standard. From such a study, students will be guided toward correct action in the securing of order for their society. The law becomes the meditating point for students to bridge the normative and the descriptive, the true substantive order of being and the existential existence of society, in their own exploration of truth and right order.

The education of students, especially those who are interested in law and may someday teach it, is critical to the cultural recovery of society. It should come as no surprise that Voegelin himself taught jurisprudence at the Law School at Louisiana State University from 1954 to 1957, with the cumulative result being The Nature of the Law as well as an outline and supplementary notes for students of his jurisprudence course. A legal education that places the law in a context of history and society and oriented toward normative conclusions is the start of a process that reclaims the philosophical heritage of revelation and reason as sources of authority. Such an education becomes the spark of the hope of something greater.

Since The Nature of the Law, there has been a slow and episodic recovery toward the study of law as Voegelin had proscribed. For example, Harold Berman’s two-volume Law and Revolution explores the historical evolution of law and includes an analysis of conscience (faith) and reason as integrated into positive and natural law, and Rémi Brague’s The Law of God is another attempt that studies the law as revealed as part of nature, reason, or revelation in its historical and civilizational dimensions. The new natural law school of John Finnis, Robert P. George, Germain Grisez, and Joseph Boyle also shares similar aspects of Voegelin’s project about the law with a return to normativity as a criterion for evaluation, although societal and historical factors are secondary factors in their analyses.

The contemporary state of legal affairs is one of confusion, where there appears no objective basis for systematizing the law as a whole entity. The lack of a generally shared belief in the capacity of the individual to reach just results on the grounds of reason and conscience creates a situation where the law is perceived merely as an instrument in a Nietzschean game of will-to-power. Even legal positivists like Dworkin and Hart recognize this dilemma and have sought to reformulate positivism to address these issues. But for Voegelin, legal positivism, whether new or old, only exacerbates this nihilist tendency rather than leading a path out of it. A return to the sources of authority in reason and revelation, as studied in a historical context, is the proper way to escape this situation.

The consequences of this intellectual deculturation in the study of law unfortunately is not restricted to the circles of the legal profession but overspills into society as a whole, since the law is the action for all members of society to secure its order. Thus, the neglect of the historical and societal context of law and its normative nature affects not only the legal profession but all of society. Voegelin’s recognition of this fact—the neglect of the origins and normativity of law may have disastrous consequences for contemporary society—led him to seek a remedy by creating a new legal science rooted in true substantive order. The Nature of the Law is his answer, with others, like Berman and Brague, leading us to a recovery in the study of law. Whether they, and others like them, will be successful remains to be seen.

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