The law’s substance is insubstantial compared to the law’s process. The law is never static, it is always in motion; constantly in flux. The logic of the law is an island in this river of process. The river threatens to wash it away; it often does. I speak in metaphor because of language’s object-oriented biases and metaphysical limitations.
These biases and limitations wreak havoc when attempting to give a working theoretical picture of what we call the “law,” and its relation to nature, morality, and justice. That’s an important task because incorrect, ignorant, or lazy assumptions about what the law “is” lead to injustice. That injustice usually masquerades as justice in the guise of a substantive norm. Blacks are chattel, went one such masque, thus they can be bought and sold.
The verb “to be” tells us nothing about the actual existence of its predicate object. The sentence “There are pink unicorns” is existentially false while the statement “There are pink flamingos” is existentially true. But you’d never know the existential truth status of the predicates “pink unicorns” or “pink flamingoes” from the syntax or semantics of the sentences in which they’re objects. There is no way of knowing whether they are existentially true or false without appealing to facts external to the sentence. And since we have solid evidence for the existence of pink flamingos we can truthfully say they exist. Because there is no evidence that pink unicorns exist (outside of fiction) we cannot truly say they exist. No one rational would take you seriously if you began an earnest campaign to save pink unicorns from extinction, but they might if you did so for pink flamingos.
A lot of jurisprudence spends its time asserting the existence of pink unicorns. The ontological tyranny of the verb “to be” is such that it leads us to speak of conclusions of law as if they had an objective existence outside our institutional social realities. An objective existence that confirms the assertion of law as substantive and not arbitrary.
But the problem with any positive assertion of substantive law is that it is difficult to fundamentally justify. Whatever axiom asserted to justify the substantive assertion of law itself requires reference to an external proposition to justify the axiom’s truth. This leads to infinite regress and other logical headaches.
The sovereign theory of law (law as the assertion or threat of force), natural law, and morality all attempt to meet this issue head-on. For good reasons. Legal positivism is empty in a sense. It only tells us how the process works, not whether the process is just. It describes but doesn’t prescribe. And the descriptions are compatible with all sorts of nasty behavior. Positivism is amoral, it’s just there to report on the scene. That way it avoids the issue of substantive uncertainty. But this misses a key piece of the description of how positive law functions and asserts certainty. Through procedure in time.
The law asserts certainty through procedure that leads to finality. In the English-American legal tradition, this process includes multiple levels of review where the substantive law is subject to reversal, modification, nullification, or reconsideration. Historically, a constant of legal systems is that they bring certainty through procedural finality. All developed legal systems have appellate procedures permitting the review and revision of lower-level substantive legal determinations. The law recognizes it may be mistaken and acknowledges this in its process.
Because law evolved to deal with uncertainty. Uncertainty and objective indeterminacy don’t undermine the law because the law is asserted certainty. That legal certainty evolves from a procedural quest for finality on a societal and individual level, with primacy given to the societal. That’s why trial by ordeal lasted for centuries. The law brings finality to disputes for the benefit of society. But it doesn’t follow from this that theories of natural law, morality, or justice are irrelevant. Or that if Due Process is met, it doesn’t matter if the law executes the innocent. But that’s a complicated conversation for another day, let’s stick to basics.
The point today is just that people focus too heavily on substantive law as giving the law its certainty. But substantive law is always changing and different across legal systems. The one constant historically across legal systems is procedure that leads to finality. That may be a trivial truth safely ignored, but I’m not convinced of that. I think it has implications for the practitioner - I know I’ve got a shot at changing the substantive law during the procedural run of a given case (I’ve done it) but there’s little chance of changing any of the procedures. This has strategic and tactical implications. For instance, I may file a substantive challenge to a law that I know I’m going to lose in that lower court in order to preserve it for appeal in a higher court. Or file policy cases I know I’ll probably lose all the way up the ladder but that introduce concepts that later, through the process, lead to a change in the substantive law. This is a common practice. That the law’s process recognizes the indeterminacy and subjectivity of the law’s positive substantive assertions is the law’s glory, not its weakness. How would we ever rid ourselves of unjust laws if there was no process with which to do so?