Legitimacy of Laws: Democrats vs Tyrants

The question for us this week was to discuss whether the laws of a tyrant were less legitimate than those of a democratic ruler, and what the differences between the two were. I think it is appropriate to begin with the basics.

Tyrant: A sovereign or other ruler who uses power oppressively or unjustly.
Democracy: Government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.

At first glance it seems an easy decision. Laws enacted by a government that was elected by the people that those laws govern would be more legitimate than those of a tyrant, who wields power in their own interests, often at the expense of their citizens. However, the positions taken by some of the theorists we are studying in this course complicate the picture a little bit.

From a positivist perspective, law is separate from morals. The “proper description of law is a worthy objective and a task that needs to be kept separate from moral judgments… a descriptive, or at least morally neutral, theory of law is both possible and valuable (Bix, as cited in Pavlich, 2011, p. 40). Natural law, on the other hand, is concerned with a “higher, moral authority” that is said to be the foundation of law (Pavlich, 2011, p. 27).

So are the laws of a tyrant legitimate? Are they less legitimate than those of a democratic ruler? It depends on the situation. From a natural perspective of law, it is more unlikely that the laws would be as legitimate as those from a democratic ruler. For example, the perspective of John Finnis would not provide legitimacy to the laws of Nazi Germany (specifically, the example used in the chapter, and Nazi Germany is also commonly referred to when speaking of a dictatorship). Finnis’ perspective revolves around the “seven basic forms of human flourishing” (Pavlich, 2011, p. 35). They include:

1. The valuing and transmission of life
2. Knowledge for its own self
3. Play
4. Aesthetic experience
5. Sociability and especially friendship
6. Practical reasonableness
7. Religion or the value of spiritual experience

Finnis also declares that a ruler must pursue the interests of a common good (p.35). If we take the example from Nazi Germany (The woman reporting her husband for speaking ill of Hitler and his government), it is quite clear that this law would be invalid under Finnis’ definition. Punishment for speaking out against Hitler is death. At the very least this is a severe violation of Finnis’ first basic form of human flourishing, and only advances the interest of Hitler and his government, not the “common good” required by  Finnis.

Fuller would come to a similar conclusion as he states in his famous debate with Hart: “To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system” (Fuller, as cited in Pavlich 2011, p. 41). Pavlich describes Fuller’s view as being that “the authority and legitimacy of law is, For Fuller, founded on morally guided practices of lawmaking that involve the consent of those whom it governs” (p. 32). One could say that the people of Nazi Germany did “consent” to Nazi laws, as they did after all elect Hitler into power. However, the counter-argument is that consent is not true consent if it is achieved by fear, terror, and threat of death.

Positivist theory, on the other hand, is a bit more difficult to use in tackling this issue. Since the main idea of positivist theory is to separate the “is” from the “ought to be” of law, morality is detached from the argument, and opens up potentially unjust land immoral aws to being legitimate. By this perspective, whether the laws of Hitler were moral or immoral, just or unjust, is an argument for someone else. In regards to the case discussed in the debate, Hart argues that “whatever the morality of the laws at hand, they were in force at the time and should be considered valid” (Pavlich, 2011, p. 43). Hart is not arguing that the laws are right are wrong, he is merely stating that the woman was obeying (albeit for selfish reasons) the law that was in force at the time, and the court was incorrect to apply a previous law based on the unjust nature of the current law.

Another point that Hart makes has to do with the legitimacy of social rules. Hart explains his “internal aspect of rules” by saying that “legitimate social rules are accompanied by a basic, if implicit, sense that they set a general standard to be followed by the group as a whole” (p. 46). This logic also gives credibility to the “immoral” Nazi law that nobody was to speak out against Hitler or the Reich. It is well known that the Nazis ruled by fear, and this type of law, enforced by fear, would have been a general standard to be followed by the German people, who would have feared retribution by Hitler’s soldiers. It does, however, show that not all Nazi laws may have been legitimate under positivist legal theory. If a general standard to be followed by the group (German citizens) then there are many laws that discriminated against Jews and other minorities that would possibly be declared invalid by Hart. This threat to legitimacy would be why (as we learned in class) every Jew going into a concentration camp was coerced into signing away their citizenship.

So to answer the question of whether the laws of a dictator are legitimate, I say yes, they can potentially be legitimate.  Law is law, and the morality of those laws is a different discussion from the legitimacy and justice attached to those laws. These laws were created by a dictator who was elected by his own people, and despite the atrocities committed with them, they were “legitimate” laws. They are clearly immoral and do nothing for Finnis’ “common good”, and so certainly cannot be labelled as “good” or “effective” laws, but they are legitimate.

Finally, the primary difference between a dictator’s laws and a democracy’s laws, in my opinion, is the level of fear and oppression involved. In a democracy, yes, we have punishments for violating laws, however violating a dictator’s laws would be punished much more severely. As an example, what would be the punishment for speaking negatively about Stephen Harper? Probably nothing, yet speaking negatively against Adolph Hitler was punishable by death.

References

Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

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1 Comment

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One response to “Legitimacy of Laws: Democrats vs Tyrants

  1. This is a detailed response!

    I think that you might be letting Finnis off the hook too easily. Although you are correctly applying his framework to the ‘Grudge Informer’ case, note that he does view the laws of a tyrant or dictator as being less legitimate because of their origin and relationship to the sovereign. Instead, he would assess them on the basis of their effects and relationship his vision of human flourishing. There is no requirement in his theory – or in Fuller’s – that legitimate laws must be the product of democratic processes. One can imagine a scenario in which certain laws of a tyrant would meet the qualifications to be considered law, according to Finnis’ moral framework.

    Fuller, despite his position on the matter of the Grudge Informer case, also does not establish a necessary link between democratic processes and law – though he does emphasize the importance of maintaining fidelity to law. Provided a regime meets the requirements for internal procedural morality (based on his allegory of King Rex), it could be called law. Pavlich notes this on p. 33.

    So, with both Fuller and Finnis, we have theoretical frameworks that allow us to make sense of – and critique on moral grounds – unjust legal practices. Both allow us to address the moral failures of lawmaking and law enforcement under conditions of tyranny. But neither framework insists that the legitimacy of the laws of a tyrant must be questioned *because* they are the laws of a tyrant.

    Your assessment of the positivist framework is spot-on.

    Do you find responses to this question offered by proponents of natural law and positivist legal theory to be adequate?

    From my perspective, the natural legal theorists in question (Fuller and Finnis) do not have much to say about the relationship between democratic input and the creation of a valid legal system. Fuller focuses on law as a distinct domain with an internal morality – separate from considerations of political process or public engagement. Finnis evaluates law according to its potential effects (an important idea), but his framework could ultimately treat the law of a benevolent dictator as being morally equivalent to the law of a representative democracy.

    Hart and the positivists, on the other hand, seem to avoid taking the question seriously by conflating legality and legitimacy. Dyzenhaus, in his critique of ‘Legality in a time of emergency’, argues that we should distinguish between ‘rule by law’ and the ‘rule of law’, for example. Does the positivist refrain that “Law is law” mean that “all law is legitimate law”? If so, what does this imply? If this is problematic, how can we go beyond both natural law and positivist legal theory to assess the legitimacy of law and the role (if any) of democracy in the legitimation of legal order?

    Great post!