The Moral Limits the State Cannot Create 

The modern legal system often speaks as if the rule of law were purely and exclusively a procedural achievement: stable social institutions, predictable and cogent rules, neutral and nonpartisan enforcement. This view of jurisprudence is commonly called legal positivism. According to this view, law does not need moral content so long as it is applied consistently.   

The idea of justice has little objectivity in this account and is largely synonymous with the idea of administrative regularity. However, this understanding rests on a quiet assumption that has become increasingly difficult to defend in the rising tide of postmodernity: the authority of law can be generated entirely from within the authority and competence of the state. Moreover, it presumes that the institution of the law is entirely constructivist by nature and does not require a foundational source.   

Western legal tradition, by contrast, has long maintained that law depends on moral limits the state does not invent and cannot, by its limited functional competence, erase. Without the recognition of those limits, legality collapses into being solely a function of “might makes right,” and devolves into the exercise of arbitrary political power.  

This time-tested insight is nowhere more clearly articulated than in the thought of St. Augustine of Hippo, one of the most perceptive analysts of political authority in late antiquity. His seminal work, The City of God, would imprint itself on Western moral consciousness and ideas of the legitimacy of state and government for the next fifteen centuries. Writing in the shadow of the Roman Empire’s collapse, St. Augustine confronted a moral problem that remains just as pressing today as it was in the fifth century: what distinguishes lawful authority from organized coercion?  

His answer to this is fairly stark. A state that lacks justice, he argues, differs from a criminal band only in scale. Laws that abandon justice may still be enforceable, but they lose their claim to moral legitimacy. Obedience to the law may still be compelled by the powers that be, but it is no longer owed in the fullest sense.  

This was not rhetorical excess. St. Augustine was articulating a principle inherited from classical philosophy and deepened by Christian moral realism: law is not self-justifying. It presupposes standards of right and wrong that precede all legitimate political power. The state can promulgate the rule of law, but fundamentally, it cannot manufacture justice by fiat. That distinction between legitimate authority and brute force is foundational to the validity of the rule of law.  

What, then, anchors law if not the will of the state? For St. Augustine, and in the older tradition of natural law, the answer lies in a moral order that is intelligible to human reason and not entirely reducible to the subjectivity of human preference. Legislatures and courts do not create this order, but discover, articulate, and imperfectly apply it. 

As a rule, the proposition of natural law does not require theological uniformity, as it was first articulated long before the Christian epoch by Cicero, chief among the orators of pagan Rome. This is the same proposition that was held by the Stoics in the Hellenic world, and by the Apostle Paul, who assumed it when he spoke of the law “written on the heart” (2 Corinthians 3:3 and Hebrews 8:10). It would be this proposition that medieval jurists relied on when distinguishing just laws from unjust ones. The common thread is the conviction that law answers to something higher than itself.   

It is a function of our own time that this inconvenient conviction has been abandoned. In the twentieth century, the rule of law quietly mutated. Much like its feudal antecedents, law became whatever those in authority say it is, constrained only by procedure and enforcement capacity.  

There are obvious historic examples of this phenomenon. Perhaps the most illustrative are the show trials of the late Soviet Union, in which Stalin and the Soviet courts ostensibly followed formal procedures (indictments, hearings, confessions) but the outcome was predetermined. Similar, albeit more sweeping, examples might be drawn from Chile under Augusto Pinochet, Venezuela under Nicolás Maduro, or, contemporarily, Turkey under Recep Tayyip Erdoğan. The familiar legal apparatus existed, but it served only as an expression of political authority. That is to say, the law was used as an instrument of state authority and not a constraint on it. In the strictest sense, this is the rule “by law,” rather than the rule of law. The abandonment of the Platonic ideal of law has significant consequences for both state and citizen, and the course of history suggests that this transformation rarely ends well for either. 

Contemporary defenders of legal neutrality often argue that moral disagreement makes substantive standards dangerous. Better, they say, to restrict law to process and leave all moral judgments to the realm of private life and private conscience. This is the prevailing legal theory stated by political philosopher John Rawls, who argued for the utility of a “reasonable pluralism.” Rawls claimed that it was inevitable that citizens would disagree about the nature of morality, religion, and, by extension, truth. Therefore, the legitimate rule of law should rely on neutral political principles.  

The American jurist Herbert Weschler echoed this proposition when he stated that the court required procedural neutrality to avoid any potential moral slant. Proceduralism cannot sustain itself indefinitely, however. Procedures by their very nature require justification. Rules regarding fairness, equality before the law, and proportional punishment all presuppose moral judgments about what human beings deserve. Even the most minimalist legal system must answer questions it cannot rightfully avoid: what counts as harm? Whose interests matter? Which acts are so unjust that they invalidate otherwise lawful authority? When law denies these questions any moral grounding, it does not become neutral. It becomes intentionally opaque and byzantine, masking power behind the legal process. 

St. Augustine’s realism cuts through this illusion. He did not expect or anticipate that political institutions would achieve a state of perfect justice. On the contrary, he emphasized human fallibility and the persistence of moral and partisan disorder. It is precisely because of that realism, however, that he insisted on limits—natural moral boundaries that governments must respect in order to maintain their legitimate governance.   

Law, in this view, is not self-regulating and is always accountable to standards it does not control. It is sometimes argued that grounding law in moral limits threatens the idea of pluralism, which is particularly salient in the multi-religious landscape of postmodernity. Yet, the opposite may be said to be true. When law recognizes standards beyond the artificial ones imposed by the state, it creates space for conscience, reasonable dissent, and moral reasoning in public life.  

The early Christians understood this well, as it was a focal point of their refusal to participate in the imperial cult, which saw the state as morally sovereign. Their refusal to worship the emperor was not an act of anarchic defiance, but principled resistance grounded in the belief that political authority is real, but never absolute. The state could command obedience in civil matters, but it could not claim any other type of allegiance. This distinction, between what belongs to Caesar and what does not, became one of the West’s most enduring contributions to the foundations of political order. It underwrote later developments in religious liberty, constitutional restraint, and the separation of civil and ecclesiastical powers. By definition, none of these requires the existence of a confessional state. They require only the recognition that law is not the highest discernible good. 

An unfortunate reality of the twentieth century was the rediscovery of this truth under political circumstances far more severe than St. Augustine’s own collapsing Roman state. In the wake of the Second World War, the victorious Allied powers confronted a disturbing legal defense offered by the various officials of Nazi Germany: that their actions, however morally repugnant, were not legal infractions. And they were correct in this ascertainment, as the violations committed by the National Socialists had been lawful under the statutes of the late German state. For their part, the Allied tribunal rejected this claim outright. However, it presented an obvious challenge to the courts set up in Nuremberg. 

What the Allied powers concluded was that certain acts are criminal regardless of whether a government has legitimately authorized them. The implication of this decision was tacit but unmistakable. It was rooted in the belief that law cannot derive its legitimacy solely from the legislative machinery of the state—that valid law requires conformity to an inherent state of truth about our humanity and the proper conditions of civilization. It must answer to standards that are intrinsic and congenital, which precede state legislation and ultimately transcend political authority. In effect, the Nuremberg trials forced the practice of modern jurisprudence to reluctantly recover the ancient insight that positive law is in fact accountable to a deeper, non-subjective moral order. This idea is fundamentally what earlier generations would have recognized as natural law. 

Seen in the light of these proceedings in Germany—from which we are only two generations removed—St. Augustine’s primary political hypothesis appears less like a quaint relic and more like a permanent diagnosis for our political life and the utility of the state. The uncomfortable truth is that the foundation of lawful authority lies in the recognition that all political power is limited by moral truths that can neither be created, nor controlled. When law is severed from justice, the authority of the state assumes the risk of degenerating into precisely what St. Augustine warned against: a large and efficient band of robbers. This perennial lesson, recovered at Nuremberg and articulated more than fifteen centuries earlier by Augustine, might seem prosaic, but it is still relevant. Despite the pretenses of our civic and cultural sophistication, it is necessary to recognize that the rule of law endures only where law acknowledges that the state is not the highest authority. When this is forgotten or intentionally omitted, legality becomes indistinguishable from the political power it was designed to subdue, and the difference between the authority of the state and a criminal enterprise becomes solely a matter of scale. 

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