St. Augustine’s “there is no law unless it be just” and St. Thomas Aquinas’ “unjust laws are not laws” (lex injusta non est lex) are reflective of the view, prevalent among the ancients, that law partakes of cosmic significance and not merely applicable to the human domain alone, or much worse to what is commonly understood as state law, that is, “law” as enacted by a legislative body. The Greeks understood law as ‘nomos’, the cosmic “law” that governs all of creation including human beings. What we today would call law (e.g. statutes, case laws) they deemed to be “codes” of law, for no mind of mortal can possibly formulate any principle whose validity is applicable to the whole of cosmos. When the English jurist H.L.A. Hart understood legal positivism as “the simple contention that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so”, he already had his definition of “law” messed up, for if he were true to the proper understanding of law, then morality would have been subsumed by “law”, not regarded as distinct or separate from it. On this account then, the question is not whether law satisfies moral demands but whether legislation conforms to the law, which itself transcends the state. The universal law applies to all things, including human beings, but with the only exception that only human beings have the free will to conform to it or violate it (and hence cause injustice to himself insofar as he goes against his own nature).
As a consequence of the transcendence of law, neither the ruler nor the state has exclusive monopoly of the law or its interpretation. The law is divinely revealed; but to know what the law commands or whether an action is in conformity with it demands precisely that: knowledge; and this has been for the most part the province of the scholars rather than rulers. The ruler himself is bound by the law, as the jurist Shams al-Din Sharakhsi said, he is equal to others before the law (al-sultan ka-ghayrihi shar‘an). This is why the rulers have flirted with scholars, insofar as their legitimacy was seriously needed particularly in the eyes of the people who were themselves united by faith and lived by the Law. In this sense of ‘law’ it is perfectly possible to ask, for example, whether it is legally permissible for Parliament to enact certain laws? If such a question appears strange to our eyes it is because we deem ‘law’ as synonymous with what the Parliament itself enacts, and thus to ask whether what Parliament does is ‘legal’ makes no sense insofar as Parliament itself is the originator of ‘law’.
But legal positivists’ identification of law with state law does not mean they cared little about evaluative criticisms of the law. In fact they separated law from morality precisely because they wish to preserve the latter as the standard by which the merits (or demerits) of the law are scrutinized. If no distinction is made between them, then, how, pray tell, are we supposed to know if the law is good or bad when it becomes self-referential? Now this is of course a valid point, except that one can’t help to ask the next natural question: how does one know what is morally good (or bad)? Here the legacy of natural law comes in: from Cicero to Plato down to the modern thinkers like John Finnis, Lon Fuller & Co., it can be known by means of reason, which is innate in all of us. This is also why libertarians insist that the role of the state should be limited; for every person has the rational and independent moral agency to function autonomous from state control. It is him who should be responsible for making the right decisions; him who should decide what is good (or bad) for himself; him who should accordingly bear the consequences of such independence.
This much—and perhaps only this much—they seemed to concur with Syed Muhammad Naquib al-Attas’ view that the end and purpose of ethics is ultimately for the individual. What made him arrive at this conclusion is the primacy that he attaches to the individual in the formation of a just society. Whatever has been alleged by social contractarians, in reality it is neither the state nor society who is the true object of a person’s loyalty, for his being a righteous and just person is born not of such “social contract” but by a personal consciousness of God with the knowledge of the Primordial Covenant (al-mithaq) that he sealed with God before he was even brought to this world, as explained in the Holy Qur’an: “When thy Lord drew forth from the Children of Adam—from their loins—their descendants, and made them testify concerning themselves (saying): “Am I not your Lord?”—they said: “Yea! We do testify!” (al-A‘raf 7:172).
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