NATURAL LAW
Natural law vs positive law: What is the difference?
Natural law is law existing to be discovered
Positive law - man-made à legal positivism is the view that law is fully defined by its existence as man-made law.
Bix’s categories:
Traditional: Cicero, Aquinas, Grotius, Pufendorf, Finnis
Modern: Fuller, Dworkin
We will discuss primarily Aquinas and Dworkin.
Traditional theories argue for existence of a higher law beyond human law, and address question of what we should do in case the two conflict.
Key question: What citizens and legislators ought to do.
Aquinas
Life: b 1224 near
entered Dominican Order 1244; went
to
family kidnapped him to try to stop him from being a Dominican
died 1274
canonized 1323
some of his views were controversial in his time; today much of his view widely accepted by Catholics
Main ideas:
purpose
of law is to serve the common good
positive
law derives its legitimacy from natural law
natural
law: do good, avoid evil
purpose of state is to promote the common good: defense, welfare, & internal peace
Definition of law: "Law is nothing else than an ordinance of reason for the common good, promulgated by him who has the care of the community."
Law is an ordinance of reason for the common good, i.e., good of the community.
Reason because about how to achieve an end
What is the end?
p. 20, happiness
Thus, law aims at happiness of the community (i.e., that is what it should do)
Not total happiness of individuals, but good of community as a community
Law has effect of making men good:
controls them thru threat of punishment; develop good habits
Naturally fit ruler is the ruler who understands and seeks the good of the community
What if lawmaker is bad?
May either make men "simply" good, if good ruler; or good for that particular government. But all laws aim at the good (for someone) [good robber]
What would it be like to have a law that does not aim at the good? Aquinas's point is that this is inconceivable
Thus, Aquinas’s criteria for validity of law are:
Ordinance of reason
Issued by law-making authority
Directed to common good
Promulgated (made public)
Question 94 -- The natural law
1st qn.: -- Whether the natural law contains several precepts, or only one?
*What is his answer? What is the primary precept? P.23
-- Several precepts all based on one primary precept, to do good and to avoid evil (write on board)
Question 95 -- Function of Human Law
Whether it was useful for laws to be framed by men?
Function of positive law is to define the natural law & make it explicit; to make it effective thru sanctions
all pos. laws must be in harmony with natural law
- not all of natural law should be enacted
why not? examples?
did not think that moral law is enacted arbitrarily by God; rather it is God's nature as perfectly good which determines the content of natural law. (not wrong because prohibited; prohibited because wrong)
Eternal law --> divine wisdom --> human nature --> natural law (known thru an examination of one's own nature in light of reason)
--> positive law
Natural law (examine inclinations in light of reason) – p. 23
preservation of life;
propagation of species;
seeking the good, avoid evil (main precept) – p. 23 left
everyone has inclination to the good
and has ability to know the good through light of reason
how are bad actions/laws possible?
p. 25, “in some the reason is perverted by passion or evil habit”
Mistakes possible in knowing natural law & thus in translating it into positive law
à disagreement
Human law needed to clarify details of application, p. 25
Why is law not the same everywhere? P.26
Varying circumstances; but those that are derived as conclusions from natural law should be the same everywhere
Second article: Whether every human law is derived from the natural law?
The force of a law
depends on the extent of its justice, p. 27
But if in any point
it departs from the law of nature, it is no longer a law but a perversion of
law, p. 27
p. 28, “If they be just, they have the power of binding in conscience”
“… acts of violence rather than laws”
“do not bind in conscience, except perhaps in order to avoid
scandal or disturbance”
laws opposed to divine good “must nowise be observed” p. 28 top rt.
Does Aquinas say you should break the law?
Not really because he says it is not a law at all.
Bix: Not law in fullest sense; not law as it should be.
Aquinas thinks duty to obey comes from natural law, from God; duty to obey positive law only when it does not conflict with natural law
natural law is reflection of human nature as conceived by God under the eternal law
divine law = revealed eternal law
How should judge determine content of law if believes in natural law theory?
e.g., in Roe v. Wade
fill in gaps by consulting human nature in light of reason
cf. Thomas hearings; implications of doctrine for judicial discretion & rule of law
Civil Disobedience
Conflict between law & morality
Do you agree w/Aquinas that it is not law if immoral?
When is there a (moral) duty to obey an unjust law? In other words is there an obligation to obey law that is independent of its content? If not what is rule of law?
Where does this obligation stop?
Basic tension: allowing everyone to determine the law for self, thus no value in having law at all, vs. requiring people to go along with injustice. (Does the majority have any means of enacting its wishes? Can people decide individually how much income tax they will pay, e.g.?)
What if citizens refuse to engage in just war, to employ blacks, etc., claiming these are matters of conscience?
Distinguish constitutionality from morality
Modern Natural Law Theory
Focuses on proper understanding of law as a social institution or a social practice.
Fuller, p. 14 of Bix
Law as “the enterprise of subjecting human conduct to the guidance of rules”
Some systems of rules so bad that they cannot guide behavior; then reasonable to say they are “not law” – because they don’t work
“internal morality of law” – 8 requirements, p. 13
Critics: merely an “efficiency” approach
But procedural justice is integral to our conceptions of justice
Bix: in considering cases like S. Africa with good procedures and bad laws, ask what is at stake in the question “is this law” or “is this a legal system” – e.g., the underlying question may be whether one has an obligation to obey.
Law not just rules, but also principles (“Model of Rules” later reading)
Principles have weight, not just yes or no; fill “gaps” in the rules
Among possible choices, pick morally best
One right answer
Interpretive theory, p. 15 (law as integrity, later reading)
Constructive vs. conversational interpretation
Past acts of legal officials as “data”
Fit
Moral value
Weighting of factors is itself an interpretive question
Find coherent set of principles that is best explanation
Like Fuller, denies conceptual separation of law and morality.
Modern theories: cannot properly understand law without moral evaluation.
Apply to cases: