Blog 09/20 – Carlos A. Gebauer

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About our Blog 2020

After receiving very positive feedback on our blog contributions in the last years, we would like to continue this still young tradition of the Liechtenstein Academy Blog also this year.

Also in 2020, it is important for us to consider very different perspectives in order to offer you the most stimulating possible offer. This year, we have been able to attract six well-known guest authors, who, with no editorial filters, write about their personal thoughts. Look forward to new and surprising insights from Michael Bursik, complex issues, simply explained by Ulrich Schnabel, philosophical insights from Dr. Ina Schmidt, astute thoughts by our language and legal expert Carlos A. Gebauer, exciting topics around the many topics of working in the digital era by Sibylle Mäder as well as constructive considerations of our health expert Christoph von Oldershausen.

We wish you a stimulating read.

Your Liechtenstein Academy team

 

FAS, MOS, IUS and LEX – An introduction not only to legal theory

In everyday life we often hear sentences like: «He acted lawfully» or «He violated the law». And the statement «One has to abide by law and order» quickly passes many people's lips. As I am always amazed to find out, even professional lawyers rarely think about how all these sentences are connected. Yet we easily and quickly recognise the connections.

Many of the origins of our European legal traditions lie in Roman history: before the Romans even had anything like a written law, they adhered to traditions. Because what the ancestors had always done in a particular way could not be wrong. They had, after all, obviously survived. So whoever adhered to the customs and traditions of a community acted correctly. You could not blame them. The Latin word for custom and practice is «mos».

However, the Romans had understood early on that customs and manners could not be changed at will, according to human moods of the day. The mere fact that everyone behaved in a certain way did not in itself mean that it was right to do so. Even masses of people can eventually err. The «mos» therefore obviously had to fit into a larger functional context. This the Romans called the «fas»: the divine, holy rule.

In today's terminology, one could roughly say that those holy rules called «fas» correspond to the functions of the forces of nature. If a human behavior does not please the gods, they send – often with a time delay – their sanction. And because the limits of the sacred rules are usually not as well and evidently visible as those of customs and mores, the Romans elevated them to the sphere of the metaphysical. What is beyond human control, what is not controllable or manageable – these are the whims of nature.

In this context, taboos arose which no one should violate, even without knowing why. For example, one may not have heard reports from previous generations that water stood on a certain meadow. Nevertheless, out of fear of (priestly traditional) taboos, no hammers were built there. However, if someone was cheeky enough to build their home there, then the next flood of the century swept away their belongings. The gods had taken their revenge. The violation of the taboo was punished. The seemingly unfounded custom of not settling in that valley suddenly had an explanation. It then again remained useful general knowledge until all who had seen or heard the drama had died. That people always forget to observe such sacred rules cannot be seen anywhere better than in Rome itself: those who built their houses again and again in the middle of the flooded areas of the Tiber unintentionally created the foundations for later excavations.

The first step is to understand that all customs (mos) must move within the boundaries of the sacred rules (fas), in order to be able to organize the common survival of people in the world in a meaningful way. The next question then arises: Which of the customs are of great importance and which are not? For example, it may be an established custom these days to celebrate carnival or to dress up and scare others on Halloween. But if carnival is not celebrated or sweets are not distributed on Reformation Day, this does not touch the vital foundations of the human community. It is quite different when you think of the rule not to physically hurt or even kill others. If these elementary rules for living together were violated, then sanctions would be needed to restore the right order. It became the task of lawyers to put this into the right if-then rules: the «ius» was born, the law.

Those rules of moral coexistence which were of special weight for the order of society were henceforth no longer regarded only as «mos», but as «ius». Law is thus, as it were, a subset of the traditional customs. There can therefore be no right against the traditional customs. At the same time, however, the law cannot violate divine rules either. Rules of law that contradict the forces of nature cannot be effective. Against such an «ius» one can invoke the «fas» with good reasons.

 This clarifies the relations between «fas», «mos» and «ius». But what about the «lex»? What about the written law? Perhaps the most plausible explanation for the difference between «ius» and «lex» is the comparison between a clock and time. Time is always present and time passes with continuous consistency. But to make time more visible, we use clocks. The same applies to law and justice: It is not always immediately clear what the legal situation is. At best, someone has written it down as a law and the legal situation can be recognized by reading the text of the law. In order to draw an equally binding and clear picture for everyone, people in communities have agreed on who writes down their laws and how they are promulgated. In this way, everyone can look into the law as if they were looking at a clock, in order to reliably coordinate their behavior.

If the person who writes down a law makes mistakes in their work, then illegal laws can come into the world. The legal clock then shows the wrong time. It must be reset and the law must be changed. Once we have penetrated these circumstances intellectually, we understand why it is so inaccurate to speak of a «lawgiver». For laws cannot be given in truth. Laws must – just as law itself – be recognized. Judgments in Germany therefore begin, without exception, with the sentence that the court has «recognized by law» a certain verdict. What is right and what is wrong must therefore first be researched. Just reading a law is not enough if you want to be careful. After all, you don't believe a clock when it shows midnight during the day. Plausibility considerations must therefore always be employed here and there.

When the actual conviction of the people no longer accords with a written law is another topic. However, this much may be revealed here: a law that does not agree with the rules of nature and with the rules of custom soon loses its validity. When a society understands that it is misled by false laws, it refuses to obey them. At first glance, this may appear to be unlawful. It is, however, completely legal.

About the author: Carlos A. Gebauer