1. Topic 2 Natural Law Themes Natural Law and the Ancients The Sources of Natural Law: God, Revelation, Reason, Nature? The relationship of Natural Law and Legal Positivism The object of Natural Law: the validity of legal rules, or the justice of legal rules? Natural Law and Christian Theology Natural Rights and Political Philosophy in the Age of Enlightenment Natural Law as an extension of ethics Finnis: Natural Law and the “basic goods” Fuller’s “internal morality” of law Critiques of natural law

2. Natural law: objective and unchanging norms which are prior to, and independent of the positive laws created by human institutions. “There are objective moral principles which depend upon the nature of the universe and which can be discovered by reason.” - Freeman, Lloyd’s Introduction (8 th ed.), p. 84.

3. Note: Natural law theory plays two distinct and separate roles –Determining the conditions of legal validity – ie whether rules or orders have a valid legal character –Determining the justice or morality of laws –To say that a law is unjust according to a higher universal moral standard is not to say that it is not law –Therefore, natural law is not necessarily incompatible with legal positivism

4. 2 distinctions in natural law theory 1.Natural law as legal theory v. natural law as a moral theory 2.The idealist version v. the virtue version

5. Examples of natural law ‘in’ the positive law: -Article 43 of the Irish Constitution – “the natural right, antecedent to positive law, to the private ownership of external goods” -Article 41: the “inalienable and imprescriptible rights [of the family], antecedent and superior to all positive law.” -See Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 [1995] 1 IR 1 A conflict between positive law and natural law. What was the rule of recognition for the State? Were judges empowered by the Constitution to determine the content of the positive law with reference to their interpretation of the positive law? [refer back to ‘inclusive’ and ‘exclusive’ positivism] - The foundation of Irish constitutional law was popular sovereignty rather than natural law. The fact that the Constitution recognised the importance of natural law as basis for its provisions did not give the Court authority to overturn the sovereign decision of the people in a referendum.

6. Note potential points of commonality between natural law and positivism - Hart’s “minimum content of natural law” – given certain inescapable facts of human life, a viable legal system must have certain minimum features. Thus, ‘nature’ or the human condition places certain restraints on the content of the positive law.

7. Advocates of legal positivism and natural law may not so much disagree, as ask different questions. - To illustrate this compare the following quotes …

8. “A central problem of jurisprudence in whether a law, in order to be recognised as such, need conform only to formal criteria, or whether its validity depends also on its not infringing some permanent, higher, ‘natural’ standard.” - J.M. Kelly, A Short History of Western Legal Theory, p. 19.

9. “The essence of natural law may be said to lie in the constant assertion that there are objective moral principles which depend upon the nature of the universe and which can be discovered by reason.” - M. Freeman, Lloyd’s, p. 90. … we can see that there might be higher moral principles governing the justice of laws, but that the criteria for ascertaining the validity or existence of laws might nonetheless be formal.

10. D’Entreves points out: “many of the ambiguities of the concept of natural law must be ascribed to the ambiguity of the concept of nature than underpins it.” (Natural Law, 1951, p. 16.) Is natural law found in: 1.The laws of nature 2.A divine will 3.Human reason?

11. The problem of the “naturalistic fallacy” – deriving “ought” propositions from “is” statement Moral rules not amenable to proof and verification in the same way as scientific or empirical statements

12. Natural law in the ancient world -Aristotle’s ‘teleological’ approach to nature -The stoic philosophers and the identification of natural law with human reason -Cicero – the only true law is just law

13. True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.... It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst punishment.“ (From De Re Publica)

14. Christianity and natural law in the medieval period -The laws of nature express a divine will -Thomas Aquinas (1225–1274 ) Influenced by Aristotle, forms the scholastic movement. God created certain forms and causal relations in the world Revelation is natural (in nature) as well as scriptural. Natural law was knowable through the exercise of reason. The source for the higher standard of law is inherent in the nature of things

15. Four kinds of law eternal law: the plan of God that directs every entity in the universe – animate and inanimate, to its appointed end (God gave entities ends; the eternal law is what governs this) natural law: that aspect of the eternal law accessible to human reason Human law: the positive law, must never conflict with the natural law divine law, supplements the other types of law through sacred text and direct revelation from God

16. Lex iniusta non est lex (‘unjust law is not law’) is sometimes attributed to Aquinas If the positive law conflicts with natural law, it is a perversion of law; an act of violence rather than of law The obligation to obey positive law will depend on its conformity with the natural law However, there may nonetheless be moral reasons for obeying an unjust law

17. Aquinas sees the question of what the law ought to be – political philosophy – as essentially an extension of moral philosophy. Finnis: “For Thomas Aquinas, as for Aristotle, doing moral philosophy is thinking as generally as possible about what one should choose to do (and not to do), considering one's whole life as a field of opportunity (or misuse of opportunity). Thinking as general as this concerns not merely one's own opportunities, but the kinds of good things that any human being can do and achieve, or be deprived of. Thinking about what to do is conveniently labeled “practical”, and is concerned with what and how to choose and do what one intelligently and reasonably can (i) to achieve intelligible goods in one's own life and the lives of other human beings and their environment, and (ii) to be of good character and live a life that as a whole will have been a reasonable response to such opportunities.” From “Aquinas’ Moral, Political and Legal Philosophy”, Stanford Encyclopedia of Philosophy

18. Compare the role of religious revelation and divine will in medieval natural law to Kelsen’s grundnorm in legal positivism. Do both require a form of “faith”? What are the shortcomings in Aquinas’ theory? - Human institutions are required to adjudicate on the content of natural law. In practice, there will be broad disagreement on this question. It provides little practical advice for adjudicating on the justice of positive laws. Also, does not provide criteria for establishing where valid law exists

19. Natural law in the late medieval era Hugo Grotius: offers a secularised version of natural law. -Natural law would exist even if God did not exist -This provided the foundations for modern international law: sovereigns are bound by natural law -His focus on the social contract basis for government lays the foundations for later liberal theories of natural law

20. Social Contract and Natural Law - Hobbes; Locke; Rousseau - the legitimacy of institutions and law lies in the consent of the governed - Ambiguous relationship between social contract theory and natural law - What people are purported to consent to varies dramatically between each theory

21. Rousseau: “The social pact establishes equality among the citizens in that they all pledge themselves under the same conditions and must all enjoy the same rights. Hence … every act of sovereignty … binds or favours all the citizens equally … so that the sovereign recognises only the whole body of the nation and makes no distinction between any of the members who compose it” [From The Social Contract]

22. The role of the ‘state of nature’ – establishing the conditions of legitimacy of political institutions - Hobbes – people surrender all their freedom to the sovereign in order to secure self- preservation - Locke – in the state of nature, persons accept limited political authority in order to secure their property - Rousseau – from the state of nature, persons abandon their ‘natural’ freedom in order to obtain ‘civil’ freedom, becoming free through participation in the elaboration of the “general will”

23. From The Social Contract: “the social order is a sacred right which is the basis of all other rights. Nevertheless, this right does not come from nature, and must therefore be founded on conventions.” … “The right which the social pact gives to the sovereign over its subjects … does not exceed what is required by public utility. Subjects therefore cannot be made to account for their opinions to the sovereign.” … “The social pact establishes equality among the citizens in that they all pledge themselves under the same conditions and must all enjoy the same rights. Hence … every act of sovereignty … binds or favours all the citizens equally … so that the sovereign recognises only the whole body of the nation and makes no distinction between any of the members who compose it.”

24. “Grotius denies that all human power is established in favour of the governed, and quotes slavery as an example. His usual method of reasoning is constantly to establish right by fact. It would be possible to employ a more logical method, but none could be more favourable to tyrants. … Aristotle …said that men are by no means equal naturally, but that some are born for slavery, and others for dominion. Aristotle was right; but he took the effect for the cause. Nothing can be more certain than that every man born in slavery is born for slavery.” …. “The strongest is never strong enough to be always the master, unless he transforms strength into right, and obedience into duty. Hence the right of the strongest, which, though to all seeming meant ironically, is really laid down as a fundamental principle. But are we never to have an explanation of this phrase? Force is a physical power, and I fail to see what moral effect it can have” ….

25. “Since no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men … To say that a man gives himself gratuitously, is to say what is absurd and inconceivable; such an act is null and illegitimate, from the mere fact that he who does it is out of his mind.” … “A people, says Grotius, can give itself to a king. Then, according to Grotius, a people is a people before it gives itself. The gift is itself a civil act, and implies public deliberation. It would be better, before examining the act by which a people gives itself to a king, to examine that by which it has become a people; for this act, being necessarily prior to the other, is the true foundation of society.”…

26. “I suppose men to have reached the point at which the obstacles in the way of their preservation in the state of nature show their power of resistance to be greater than the resources at the disposal of each individual for his maintenance in that state. That primitive condition can then subsist no longer; and the human race would perish unless it changed its manner of existence. But, as men cannot engender new forces, but only unite and direct existing ones, they have no other means of preserving themselves than the formation, by aggregation, of a sum of forces great enough to overcome the resistance. These they have to bring into play by means of a single motive power, and cause to act in concert. This sum of forces can arise only where several persons come together: but, as the force and liberty of each man are the chief instruments of his self-preservation, how can he pledge them without harming his own interests, and neglecting the care he owes to himself? This difficulty, in its bearing on my present subject, may be stated in the following terms: "The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before." This is the fundamental problem of which the Social Contract provides the solution.”

27. What are the flaws of social contract theory? Is it really a natural law theory at all?

28. Natural rights, the Enlightenment and the era of Revolutions “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness …” - From the American Declaration of Independence

29. Natural rights later dismissed as “nonsense on stilts” by Bentham and the utilitarians

30. John Finnis - a modern understanding of natural law that builds on Aquinas - Unlike positivists, is not concerned with the question of legal validity. Rather, what are the universal ethical criteria for determining the justice of laws? - “Natural law is the set of principles of practical reasonableness in ordering human life and human community” [What are we to do or not to do? How ought we to live? Then, what laws and institutions will enable us to fulfil our ends?] - The basic questions are ethical and meta-ethical. Legal theory a part of this ethical project

31. In determining what is just, Finnis uses a list of “basic goods” – things that can be valued for their own sake. - Life (and health), knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness and religion. - practical reasonableness: “the basic good of being able to bring one’s own intelligence to bear effectively … on the problems of choosing one’s actions and lifestyle and shaping one’s own character.”

32. How can we promote the enjoyment of these basic goods? Through practical reasonableness, we make moral choices about how to pursue the basic goods Legal theory is an extension of this basic moral question Objective knowledge of what is right is made possible by the existence of these ‘basic forms of human flourishing’

33. ‘The fact that human beings have a certain range of urges, drives or inclinations; and the fact that these have a certain correspondence … with the states of affairs that anyone intelligent would consider human flourishing; and the fact that without reasonable direction the inclinations will bring about individual and communal ruin … and the fact that certain psychological, biological climatic, physical, mechanical, and other like principles, laws, state of affairs, or conditions affect the realisation of human well-being in discoverable ways – all these are facts in an order, external to our own understanding, which our understanding can only discover. This order is often called the order of nature.’ Natural Law and Natural Rights, p. 380.

34. Finnis denies the ‘naturalistic fallacy’ - ‘the basic forms of good grasped by practical understanding are what is good for human beings with the nature they have.’ ‘The object of the inclination which one experiences is an instance of a general form of good, for oneself (and others like one)’ - Natural Law and Natural Rights (1980), p. 34 What does this assume? - Despite the diversity of human ends and inclinations, there are certain basic goods which all may be assumed to share and want. - This theory is not based on God’s will, but on practical reasonableness

35. This is prescriptive rather than a descriptive account of law – what is ought to be, rather than what it is However, ‘we are left with the suspicion that Finnis gives us no substantial reason why social ordering through law is the most appropriate way of organising political life, that it has, in other words, the greatest moral value’ – Freeman, Lloyd’s, p. 132.

36. LON FULLER -See ‘a reply to Professor Hart’ (Moodle) -A very different theory. Focuses on natural law not as an extension of ethics, but in terms of an understanding of law as a particular social practice. -Contests Hart’s separation of law and morals. -Moral evaluation of some sort is necessary in the description of law as well as in its evaluation. -Positivists misunderstand the centrality of the ideal of law in the understanding of law itself

37. - Trying to give law a morally neutral description is futile because this ignores the ideal of law towards which law is striving – its own internal morality -Law is ‘the enterprise of subjecting human conduct to the governance of rules.’ Whether particular social practices will be deemed ‘law’ will depend on their conformity with this ideal – which is a moral one. -Law is an instrument which seeks social order. Hart’s ‘rule of recognition’ overlooks the attributes law must always have in order to serve the ideal of law

38. -Contrast this with Hart’s ‘minimum content of natural law’? -Note that Fuller is concerned with the function and procedure of law rather than its morality. Valid law must not necessarily be good, but it must take a certain form to meet the ‘internal morality of law’ -The question of whether Nazi law was really ‘law’ cannot be addressed independently of its moral dimensions

39. The internal morality of law – the formal requirements it would have to meet in order to qualify as ‘law’ – Eight requirements of legality: 1 Laws should be general 2 They should be promulgated, so that citizens know the standards to which they are being held 3 Retroactive rule making and application should be minimised 4 Law should be understandable 5 Laws should not be contradictory 6 Laws should not require conduct beyond the abilities of those affected 7 They should remain relatively constant through time 8 There should be congruence between the laws as announced and those applied

40. - Also stressed the universal importance of two procedural dictates: “keep man’s purpose- forming processes healthy”; “keep the channel of communication between men open.” - Critics centre on charge that this is an amoral account of law - Freeman: ‘are the principles of procedural legality no more than the tools of an efficient craftsman?’ Lloyd’s, p. 122. - Do procedural rules – such as “no retroactive legislation” – have an independent moral weight?

41. Conclusion: the attractions of natural law? - Queries the plausibility of a purely descriptive account of law – whether we can describe and analyse law without participating in evaluation, considering what is desirable or good about law as a system. - “Laws are only fully intelligible by reference to the values they ought to realise, such as justice and the public good.” Freeman, Lloyd’s, p. 95