Note on Legalism

Legalism is a real problem. But it seems to me that many do not clearly perceive exactly what the problem of legalism is. The accusation of rigid legalism is bandied around without enough discernment or discrimination; it is often an all-too-easy way of dismissing traditional or conservative defenses of objective moral law, or defenses of traditional practice, etc., without adequate consideration of the merits of these positions in themselves. On the other hand, it is undeniable that there are legalists, and many of them are indeed traditionalists; although I think we might be surprised that many legalists of a far more dangerous sort are also found on the side of the spectrum that is quite opposite to the traditionalists. But before we start making such accusations, we ought to understand what law really is, and thus what the legalistic abuse of law really is - and what are the right parameters for legitimately making the accusation of legalism.

Law is a principle of order, insofar as it is a judgment of practical reason, promulgated by the right authority, for the sake of the common good. In classical philosophy, the common good is twofold: the extrinsic common good, which is ultimately God, and the intrinsic common good, which is the act by which a community or multiplicity possesses God, or ordains itself towards God as its extrinsic final cause. In a community, this act is inherently bound up with the hierarchical order of the multitude in relation to God. Another word for this order is peace, the right harmony of parts amongst themselves within a multitude. It is this order or peace of which law is the rational principle. Indeed, in a certain way order or peace almost consists of law, inasmuch as the order or parts entails the order of the lower to the higher, i.e. the order of all that is sub-rational by reason itself. The judgment of reason is a cause of order. This judgment, in practical matters, is generally what is called law. 

To follow the law with diligence, when it applies, is not legalism. Too often the accusation of legalism is thrown at those who advocate nothing more than diligence and fidelity to the law. The anti-legalist wishes to assert, to the contrary, that the law is not in any strict sense truly binding. On the contrary, law without its binding force is no law at all; a law is not merely a guideline or a rule of thumb: if it applies, it is binding.

However, a judgment of reason is a complicated thing, and the relationship between reason and practice is likewise complicated. A judgment of reason is something abstract and universal; but the more determinate it is made, the more is it capable of being subject to exceptions. Reason must therefore operate not at merely one level of universality, but at many: for at a lower level of universality, an abstract law will apply to fewer individual cases, even if it may be said to apply to many or even to most cases. But in those cases that occasionally arise which fall outside the sphere of such a lesser judgment of reason, appeal must be made to an even more universal law, precisely so that the particular case might be addressed more easily and with greater flexibility. But even this flexibility is always limited, because there is always some law, even a more remote and universal law, that has a bearing upon it.

In other words, laws are more or less universal, and more or less specific. Indeed, many laws are quite specific, especially in the case of human laws, civil or ecclesiastical. Framed as law, they are given the appearance of inflexible standards of practice; and yet precisely because they are more specific, in that proportion they must be more flexible. They are but determinations of a higher and more universal law; and this higher law, precisely in virtue of being more universal, is something relatively indeterminate - or rather, it is capable of many determinations. One aspect of legalism might be the failure to recognize that more a specific judgment of reason cannot be the one and only way of determining the more universal law; there are other ways to do so, and sometimes it is necessary to seek out those other ways, when extraordinary circumstances arise. The legalist is inflexible at a level of specificity where such inflexibility is inappropriate.

But how does one know when such inflexibility is inappropriate? Again, one must make a judgment of reason - not a judgment of desire. In other words, one must make a judgment that the application of this specific law to this particular circumstance is contravened by a higher law, which may call for another, or even an opposite, prudent course of action in that circumstance. But it is crucial that one can only make this judgment by appealing to a legitimately higher and more universal law. One cannot merely appeal to desire, or to love, or even to legitimately good things when their good is merely conditional upon a higher good. Since law is for the sake of the common good, and since goods are more or less common (which is why laws are more or less universal), one can only judge it right to contravene or disobey a specific law if it is truly in the interest of the greater good to do so. Legalism fails to recognize the interest of the greater good when it calls for a course of action that falls outside of the judgment of a particular law, though it does fall within the judgment of a more universal law combined with prudence. But equally, many who wield the accusation of "legalism!" fail to recognize that it is not just any good that may exempt from the obligation of a specific law, but only a good that is greater than that to which the specific law itself is ordered.

These distinctions are absolutely necessary in order to safeguard both law and legitimate exceptions to the law, so as to avoid both a rampant liberal disobedience on the one hand, and a rigid and overbearing legalism on the other hand.