One of the common things we find debated by Catholics is the law. St. Isidore of Seville in his Etymologies provides what should be a good foundation for our discussion. Although we must understand his own exposition is, in part, an expression of the rule of law in his time, he does provide a foundation for general discussions of law.
First, he rightfully differentiates between divine and human law, with the first established in “natural law,” and the second being the secondary legal requirements needed for the effective government of a group of people — based upon the customs and traditions which developed among them: “1. All laws are either divine or human. Divine laws are based on nature, human law on customs. For this reason human laws may differ, because different laws suit different peoples. 2. Fas is divine la; jurisprudence (ius) is human law.”[1] The example he provides is rather interesting, because it deals with the issue of private property. In it, he makes it clear that natural law allows access to all land by all people, while human law can and will make restrictions to such access: “To cross through a stranger’s properly is allowed by divine law; it is not allowed by human law.”[2]
Some might think this means human law can and should allow the development of private property so that the owner has absolute authority over it and absolute control over who has a right to its use. This is not what he has said. He only has given us a representation of what human laws can do, but he did not discuss whether or not such law is good or enforceable. Because divine law gives everyone common access to the land around us, that right must always be remembered as we establish the concept of private property — in other words, the divine law points to the relative, non-absolute nature of private property.
St Isidore also suggests something about the creation of law, what is needed for it to be a good law, and therefore, to have a positive claim on us: “A law will be decent, just, enforceable, natural, in keeping with the custom of the country, appropriate to the place and time, needful, useful, and also clear — so that it does not contain anything that can deceive through obscurity — and for no private benefit, but for the common profit (communis utilitas) of the citizens.”[3]
This criteria provides us a good reminder that law should be established for the benefit of the people, for the common good. It must be placed for the sake of justice, it must be capable of being enforced, and it must also be something which is in accord with the people being ruled by it. One cannot create laws out of nowhere which has no connection to the people being governed by it. In this way, we can begin to see why laws, such as some of the anti-immigration laws enacted in Arizona, are bad laws — they are based upon the desires of private citizens for their own good, not the good of all the people, and they are not following the rigors of justice. Moreover, they are not properly enforceable without tyranny. But there is another issue involved — St Isidore points out that the law must be clear. While this criterion is not met with the Arizona law (because of the vague nature in which it was written), we must also admit this is a problem with many laws, even ones which aim for the good, such as the health care reform we have had. The problem comes from the nature of modern government, among of which, laws are written too vaguely (on purpose), and where too many things are put together into law, too many things which do not always relate too well together. That this is done by all demonstrates why there is a major crisis in government today.
Now, to be sure, it is not the size of the law itself which is the problem. One of the reasons why we need long bills is to make sure they are interpreted properly, to make sure they are administered according to the desire of the legislator. But we do find consistent debate over the meaning of bills because we are writing bills which do not always follow through with their planned purpose. The health care reform we got passed this year is a case in point: despite what President Obama said when he signed it, this did not establish true reform, the kind which people were looking for and needing. It certainly helps, but the kind of help is limited. And, though I do believe President Obama wanted to do more, the nature of the bill itself, and how it was crafted, allowed him to do a bait and switch; in other words, in the end, what he gave us was deceit. What we got was not a good law, though of course, we must remember it is put in place over and against an even worse law.
In this way, we need a major legal reform movement. We need to re-establish the way we make laws, so they do are not obscure to the general reader. Until this is done, partisans from all angles will be able to use the laws to their own private benefit, but not to the benefit of the people. They will be for or against the law, and use its lack of clarity to find the means by which they can establish their argument. Both sides accept this because it helps both of them, because if laws were clearer, and not capable of debate, it would become more difficult to get approval for laws which end up unjust. Both sides look after their own interests, not the common good, and that is why people want something new and different. But what they don’t understand is that as long as our legislative system is broken, and the way we make laws fails to meet the criteria of good laws, new people will never be able to enact change but will themselves either become a part of the tyrannical system which is out of control, or be thrown out because they end up doing nothing.
[1] St Isidore of Seville, Etymologies. trans. Stephen A. Barney, W.J. Lewis, J.A. Beach and Oliver Berghof (Cambridge: Cambridge University Press, 2010), 117.
[2] ibid., 117.
[3] ibid., 73.
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