Version: v1, Published online: 1998
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2. Law as will
But there is another possible account of higher law. It can be thought of as a law laid down by God for his creation. The divine will, not the divine reason, must be the source of law. It cannot be for created reason to presume to judge of the creator’s wisdom. The omnipotence of the creator entails that the law will be whatever the creator wills it to be, and to be law by virtue of that will, not by any independent reason and nature of things. Indeed, the nature of things will be just what the creator wills it to be, and the names of things will be matters of convention derived from human linguistic usage. Concepts are not essences that guide us to essential meanings. Nominalism and voluntarism are inevitable bedfellows (see Nominalism).
It is therefore inaccurate to suppose that the theory of natural law as a kind of higher law presupposes rationalism. There can indeed be a voluntaristic species of ‘natural law’, though the voluntaristic tradition will more likely speak of ‘divine law’ or ‘God’s law’ than of natural law simpliciter (see Austin, J.). Moreover, one element in the religious upheavals associated with the Reformation was an insistence on the need for unmediated regard to the (scripturally revealed) divine law, rather than to the custom or tradition of sinful human institutions such as the Church. It is not for fallen human reason to set itself above or even beside the revealed will of God. But that revealed will must be received as a law binding above all others.
In this state of things it becomes questionable whether to accept any human law at all; and, on the voluntarist hypothesis, to see how law other than God’s law can have any obligatory force at all. To the saving of human law there are only two possible moves: either it must be shown that God in fact wills our obedience to the very kings and other superiors we actually have (as in the theory of ‘the divine right of kings’), or it must be the case that the binding will arises from the consent of human beings themselves, expressed through some original social contract. The divine will then enters the picture only to the extent of making obligatory the fulfilment of compacts voluntarily agreed, a point to which may be added a grimly Hobbesian acknowledgement that covenants without swords are but words, so the true binding force of the obligation of the law will derive from the effective might of the very ruler whom the social compact institutes in that office (see Hobbes, T. §§6–7). In this Hobbesian form, natural law has practically reached a vanishing point (though Locke’s response envisages the state of nature as governed by reason in the form of a law of nature, grounding presocietal rights of human beings to life, liberty and estate (see Locke, J. §§9–10). The greatest legal expression of the Lockean vision of law, applied to expounding the English common law, is in the work of Sir William Blackstone. The coup de grâce was administered by Hume and Bentham, the latter having as his particular target Blackstone’s work. They argue that the social contract is a fifth wheel on the carriage in either Hobbesian or Lockean form, since all the reasons that there are for obeying the law that we have supposedly agreed to apply with equal force even if we did not agree to it, and there is no evidence anywhere of any such agreement as a historical phenomenon (see Bentham, J. §6).
Brown, Beverley and Neil MacCormick. Law as will. Law, philosophy of, 1998, doi:10.4324/9780415249126-T001-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1/sections/law-as-will.
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