Jurisprudence – Natural Law
Introduction Natural law theory is not a single theory of law, but the application of ethical or political theories to the questions of how legal orders can acquire, or have legitimacy, and is often presented as a history of such ethical and political ideas. These theories would explained the nature of morality, thus making natural law theory a general moral theory. The basic idea was that man could come to understand, either by his own reasoning or help from God, how he should act rightly in respect of his fellow man.
However, within modern jurisprudence, much of the importance of natural law has been eroded from a question on the meaning of justice or how a system of law could be understood as legitimate; into a question of what is the relationship between natural law theories and the everyday operations of a legal system. This is because much of natural law has been savaged by two criticisms: a. Natural law theories’ assertion that in order to understand what law is, it is necessary to involve oneself in an exploration and explaination of what law ought to be is inherrently faulty.
Jurisprudence – Natural Law Essay Example
(the fact/value distinction) This confuses the description (law’s actual existence) with prescription (the evaluation of law as good or bad). Natural law theories stray between the logically unconnect fields of meaning of ‘is’ and ‘ought’, which is dubbed the ‘naturalistic fallacy’. The incompatibility between these two fields is illustrated by the classic interpretation of Hume’s law, that one cannot derive a statement about what ought to be from a statement about what is, or vice versa.
To give an example of the non sequitur involved in this kind of reasoning is that the fact that only women can bear children, points to the conclusion that they This supposed link between the capacity to bear children and motherhood is provided through social conventions and is entirely contingent. The former does not follow the latter as if it was some sort of natural and unavoidable consequence, and thus cannot be seen to somehow be an inherent property of
human beings and the way they organise their world. b. Any attempt to identify a necessary common element of ethics in all legal ststems appear to founder on the difficulty of agreeing on a common set of ethical values, as coherent moral values are extremely difficult to articulate, let alone to prove. c. The source of natural law It can be discerned from Cicero’s works that there are two very different sources of natural law: i. Our shared reason Classical and Modern Natural Law Theory
“and it is not only justice and injustice that are distinguished naturally, but in general all honourable and disgraceful acts. For nature has given us shared conceptions and has so established them in our minds that honourable things are classed with virtue, disgraceful ones with vice” These are our shared conceptions’ given us by nature by which we all classify things in the same way, evil with evil, good with good. ii. God as the author of natural law
“and there will not be different laws at Rome and at 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 all of us, for he is the author of the law, its promulgator, and its enforcing judge. ” Is it not possible for our reason to conflict with what we learn from the revelation of God’s will? Was the moral law as revealed by God good just because God willed it, or was it willed by God because it was good?
There is a circularity in attemption to define morality in terms of God’s will. To say that God deserves our obedience because he is morally perfect can only make sense if we understand the notion of moral perfection before we relate it to God. This had led natural lawyers such as Grotius to say that natural law was willed by God, but, but was willed by him because it is that which is rationally good. It is not good merely because he happens to have willed it. Hence Grotius could conclude that natural law would hold good even if there were no God.
A history of Natural Law The origin and focus of natural law theory is summed up in the form of a question posed by Aristotle: “What is the reason for deminding a mina as a ransom for the prisoner, or that a goat and not two sheep should be sacrified? ” This question is the basis for the earliest distinctions between natural and positive law. The content of laws and the specific consequences that flow from the, is entirely arbitrary, in ancient as well as modern times. Laws are a matter of convention or convenience, political interest or local ideology.
Two Greek philosophers, Plato and Aristotle, attempted to find an alternative ethical basis for social life: a. Plato Plato saw the basis of ethics and other knowledge in absolute values to which things could approximate. Classical and Modern Natural Law Theory Plato saw the basis of ethics and other knowledge in absolute values to which things could approximate. For example, something can be beautiful, but it is not itself beauty. The elements of beauty found within the vase enable the description ‘beautiful’ to be used.
Men know that value intuitively, although its content could be more fully identified through the application of reason. We could thus grasp, albeit inperfectly, the true form or idea of these absolute values, which includes law, which plays an intrinsic relationship with law. Plato postulates that relationship is that “only such law can be considered right.. which has something of the externally beautiful, and which neglects everything that is devoid of value. ” For Plato, ideas such as justice, virtue and beauty were ideals, but they have greater ethical value than the customs of particular regions.
The latter are ‘conventions’, and thus have nothing sacred about them. Therefore he sought to locate ethics in universal values, which could transcend the particularity of local practices. b. Aristotle For Aristotle, the source of those values is not absolute values, but of those found in nature, in particular, human nature. For him, nature had elements of both change and stability. The concept that unified this opposition was the telos (end of things). Things evolve towards their ends, or purpose.
Aristotle applied this teleogocal form of reasoning to human development. Man is a social animal, which meant that he needed social groups in orde to flourish. But man is also a political animal, it is his nature to live in a state. But politics was only possible within a polis , thus the creation of the polis allowed man to fulfil a potential. This reasoning led him to the conclusion about the law appropriate to a polis , for example, from man’s nature as a social animal he concluded that there must be laws appropriate for the rearing and education of the young.
Thus man is social, political and sought knowledge, and only when in a position to fulfil these aspects of his nature could men flourish and achieve the ‘good life’. Once Alexander the Great founded the Greek empire, Greeks and barbarians came into contact with in ways that went beyond the former making slaves of the latter. Attempts to make ethical sense of this experience led the Stoics to accord primacy to man’s reason, as by reason man could determine those precepts of right conduct which transcended particular cultures, and therefore were universally appilcable.
They also talked of a community beyond the city state. This philosophy represents the first attempt to identify sources of law that transcend particular states. This relationship, between local laws and more universal and higher legal order, forms the basis for the development of natural law from the time of the Stoics. With the creation of the Roman Empire, came the development of a common legal order for Roman Colonis and Rome itself, based on the customs common to them all, jus gentium .
This notion started life as a second class legal system, a stripped down Roman civil law intended to facilitate trade, which applied to foreigners, but came to be regarded as a higher or superior legal With the creation of the Roman Empire,Moderndevelopment of a Theory legal order for Classical and came the Natural Law common Roman Colonis and Rome itself, based on the customs common to them all, jus gentium . This notion started life as a second class legal system, a stripped down Roman civil law intended to facilitate trade, which applied to foreigners, but came to be regarded as a higher or superior legal St.
Thomas Aquinas – Summa Theologica To Aquinas, law is a rule or measure of action that leads subjects to perform certain actions and restrain from doing others. But these rules and measure of actions is derived from reason, as Aristotle said, it is reason which directs action to its appropriate end. In addition, the object of said laws must be the well-being of the whole community. This is because, as according to Aristotle, man’s purpose is to live in a political community, and therefore what is legal and just in a law will reflect this, to preserve the well-being of the community through common political action.
Since the principle object of law is the ordering of the common good, the promulgation of law is the task of either the entire community or a political person whose duty is the care of the common good. The well being of one man is not a final end, but subordinate to the common good. It follows that unjust law is not according to reason, and is thus not law in the true and strict sense, but is rather a perversion of law. However, it does assume the nature of law to the extent that it provides for the well-being of the citizens. Aquinas then described orders of law, eternal, divine, natural and human,
which purported to show the way in which human reason was able to appreciate what was good and godly. Man, by his reason, would be able to participate in the moral order of nature designed by God. 1. Eternal Law – lex anterna This is divine reason, known only to God and ‘the blessed who see God in his essence’. It is God’s plan for the universe, a deliberate act of God and everything, not only man, is subject to it. Eternal law is thus the ideal of divine wisdom considered as directing all actions and movements. All laws, so far as they accord with right reason, derive from the eternal law.
As Augustine said, in human law nothing is just or legitimate if it has not been derived by men from the eternal law. Thus, human law has the quality of law only in so far as it proceeds according to right reason. If it deviates from reason it is called an unjust law, and has the quality not of law but of violence. 2. Divine Law – lex divina This deals with those parts of eternal law that are directly revealed to man by divine revelation. Aquinas notes the reasons why we need divine law to direct human life: a. It is by law that man is directed in his actions to his final end.
Since man is destined to an end of eternal blessedness, and this exceeds what is proportionate to natural human faculties of reason, it is necessary that he should be directed to this end not just by natural and human law, but divine law. Classical and Modern Natural Law Theory It is by law that man is directed in his actions to his final end. Since man is destined to an end of eternal blessedness, and this exceeds what is proportionate to natural human faculties of reason, it is necessary that he should be directed to this end not just by natural and human law, but divine law.
b. There is an uncertainty of human judgment, resulting in contradictory laws. Therefore man, to avoid any doubt as to what he is to do and what to avoid, it is necessary that he should have direction from a divinely given law, which is known to be incapable of error. c. Because laws cannot reach to the interior actions of the soul. d. As Augustine says, human law can neither punish or prohibit all that is evilly done. Therefore, there should be divine law to ensure that no evil should go unforbidden and unpunished.
Note: There is an overlap between divine law and natral law, in such matter as are covered by, for example, the Ten Commandments , where the prohibitions against murder, theft and so on, are declared by divine law but can also be appreciated as natural law precepts as well. 3. Natural Law – lex naturalis This law consists of participation of the eternal law in rational creatures. It is thus the eternal law in so far as this is intuitively and innately known and knowable.
Humans, being rational creaturesm are subject to eternal law in a special way, as they have a certain share in the divine reason itself, thus deriving a ‘natural inclination’ to their own actions and the actions of others. Therefore, natural law is the same for all men since all are rational and it is proper for man to be inclined to act according to reason. Precepts of the natural law The order of the precepts of the natural law corresponds to our natural inclinations: a. The natural law contains all that makes for the preservation of human life, and all that is opposed to its dissolution.
b. The natural law contains the inclination which ‘nature has taught all animals’, such as a sexual relationship, the rearing of offspring etc. c. The natural law contains the inclination towards good, corresponding to man’s rational nature. Man has a natural inclination to know the truth about God and to live in society, to avoid ignorance, to not give offence to others etc. The law of nature, as far as first principles are concerned, is the same for all as a norm of right conduct and is equally well knowed by all. Classical and Modern Natural Law Theory
There are two ways in which natural law may be understood to change: a. Certain additions may be made to it. b. Certain substractions may be made from it. As far as first principles are concerned, it is wholly unchangeable. As to secondary principles (which follow as immediate conclusions from first principles), may change in rare cases: i. with regards to rightness ii. with regards to knowability Criticisms a. Primary – secondary classification It is not clear which precepts are primary and which secondary. Nor is it clear how the secondary principles are derived from the primary ones.
There may be only one primary precept: that good is to be done and evil to be avoided. But the question then leads to what is good and evil? According to neo-sholastic interpreters, good refers to those actions that conform to properly human ends, and evil to those actions that fail so to conforms. Note: Grisez challenges this, stating that the concept of good, as he understands from Aquinas, refers not only to what is morally good, but to whatever within human power can be understood as intelligibly worthwhile, and evil to any privation of intelligible goods. b.
The explaination of change in secondary precepts Aquinas reasoned that obligations may change due to a change in human nature. Aquinas admits that human law, which derives its validity from natural law, changes with human circumstances and human reason. But are all these changes justifiable? For example: a. Attitudes to usury (immoral loans) were described as contrary to natural law by Aquinas, but Cardinal Cajetan had not difficulty in abandoning this doctrine. The growth of commerce and industry and the need for investment justified the change. b. The bellum justium (the just war theory), formulated by St.
Augustine and expounded by Aquinas, seems weak in the face of the numerous armed conflicts which happened since, and the growth of nuclear ICBM stockpiled in numerous countries. c. The ban on contraception, restated in the Papal Encyclical Humanae Vitae, in light of the problems of over-population and the changed status of women. Classical and Modern Natural Law Theory 4. Human Law – lex humana This consists of the particular rules and regulations that man, using his reason, deduces from the general precepts of natural law to deal with particular matters.
As Cicero says, law springs in its first beginnings from nature: then such standards as are judged to be useful become established by custom: finally reverence and holiness add their sanction to what springs from nature and is established by custom. Aquinas notes that since the first rule of reason is natural law, all humanly enacted laws must be derived from natural law. If it is at any variance with natural law, it is no longers legal, but a corruption of law. As to why we need a distinction between human and natural law, Aquinas exploits the analogy of an architech to explain this.
That the natural law will explain the precepts or requirements of a house, that it needs doors, windows etc. This is what he refers to as specificatio, as it is specified by natural law itself. But we need human law to determine the size of the doors etc. This is a matter of determinatio, as concepts like the duration of punishment, fines etc are not directly provided for in natural law, but can be determined within the boundaries set by natural law. As to how human law should be derived from natural law, there are two ways: a.
As a conclusion from more general principles, where demonstrative conclusions are drawn from first principles. b. As a determination of certain general features, where some common form is determined to particular instances. Note: Aquinas exploits the analogy of an architech to explain this. That the natural law will explain the precepts or requirements of a house, that it needs doors, windows etc. But we need human law to determine the size of the doors etc. Therefore we need human laws as natural law does not provide all or even most of the solutions to everyday life in society.
In addition, we need human laws to compel those who are of evil disposition and prone to vice to refrain from acting selfishly, so that they will be drawn eventually, by force of habit, to practice virtue voluntarily. The limits of human law Human laws shuold take account of the condition of the men who will be subject to them, so that it is possible to obey them. For this reason there should be different laws for children and for those of limited capacity, as they do not have the capacity to act in accordance to those of perfect virtue.
Classical and Modern Natural Law Theory Human law should also be enacted with the fact that the mass of men are far from perfect in virtue in mind. Human law should thus not prohibit every vice from which the truly virtuous men abstains from. It should only prohibit the graver vices which the majority of man can abstain from, particularly vices which are capable of inflicting damage and misery over others. In addition, a law only obliges in conscience to the extent that it is in keeping with the natural law and thus just. Laws may be unjust for two reasons:
a. Where they are detrimental to human welfare, contrary to the norms derived from natural law Either with respect to its objects – where the laws are burdensome to the subjects and do not make for common prosperity; or with respect to its author – where the legislator enacts laws which exceed the powers vested upon him; or with respect to their form – where the burdens, although concerned with the common welfare, are distributed inequitably throughout the community. b. Where they are unjust through being contrary to divine goodness.
However, Aquinas is not saying that an unjust law is not a law. Such a law continues to partake of the character of law in its form, and participates in the order of law in a minimal way. This is because the law is a necessary human institution of communal practical reason. Therefore, every person has the duty to support the law. Thus the fact that a law is unjust does not provide one with an absolute license to disobey it. One must take into account the consequences of one’s disobedience, which might generate a willingness amongst people to disobey the law for selfish reasons.
Man is to yield his right of rebellion, though such law clearly does not bind his conscience. The mutability of human law Aquinas notes that there are only two causes that justify the change of human law: a. On the part of reason It is natural for human reason to proceed by stages from the imperfect to the more perfect. Therefore regulations set by those who were not able to solve the entire problem can be later modifed by their successors. b. On the part of men whose actions are regulated by the law Changes in law may be justified on account of altered circumstances, which bring altered standards.
Classical and Modern Natural Law Theory St. Augustine gave an example of suffrage. If the people are orderly and looks after public interest, there is a justification in law to allow them to vote for their own magistrates and politicians. However if the people are largely corrupt, suffrage should only be extended for the few and honest. However, there are limits to such mutability. Constant change in the law is detrimental to the public welfare, as in the observance of law, custom is important. When law is changed, its coercive power is diminised to the extent that custom is set aside.
Thus human law should never be changed unless the benefits which result to the public interest are such as to compensate for the harm done. John Finnis – Natural Law and Natural Rights As a preliminary note, although Finnis makes reference to the Christian philosopher St. Thomas Aquinas, Finnis’ theory of natural law does not rest on theology. In fact, he rejects much in the natural law tradition: a. He claims that natural law does not necessitate a belief in morality as comprising observance of rationally demonstrable principles of behavior. b.
He denies that natural law requires laws which infringe such principles be impugned as invalid. It is worth noting what the place of God is in Finnis’ scheme. Although Finnis is a devoted Christian, God does not loom large in his theory. God is Finnis’s conclusion, not his premise. Like Grotius, he believes a theory of natural law does not have to stipulate God. It stands out without the need of religious doctrine. Finnis however thinks that if one accepts the arguments of his book one will have a strong reason to believe in an Uncaused Cause of the Universe.
For Finnis, natural law is the set of principles of practical reasonableness in ordering human life and human community. Drawing on Aristotle and Aquinas, Finnis posits that there are certain basic goods or objective values that every human must assent to their values as objects of human striving. Some may argue that Finnis’ argument is gulity of the naturalistic fallacy (see above); just because it might be possible to observe basic goods and values does not mean that they are linked of necessity to any particular conclusions. Finnis however tackles this head on, stating that he is not deriving an ‘ought’ from an ‘is’.
He reasons that normative conclusions are not based on observations of human nature but a ‘reflective grasp of what is self evidently good’. This whould make basic values indemonstrable but self evident, and are basic values that underlie all human societies. These basic values, or goods, are objective values in the sense that every reasonable person must assent to their value as objects of human striving. Note: As to what ‘reflective grasp of what is self evidently good means, Finnis may mean that we perceive the good through reflection about our behavior, relating to an idea of conscience.
For example, we feel bad when we do something we feel is wrong. This would be in line with Finnis’ reasoning that our grasp of basic goods is a human response. However, it could be instead argued that such a notion of good (appearing in conscience or self reflection) is not self evident, by entirely a product of education and training within a culture’s world view. Consider Mau Mau tribe in Classical and Modern Natural Law Theory Note: As to what ‘reflective grasp of what is self evidently good means, Finnis may mean that we perceive the good through reflection about our behavior, relating to an idea of conscience.
For example, we feel bad when we do something we feel is wrong. This would be in line with Finnis’ reasoning that our grasp of basic goods is a human response. However, it could be instead argued that such a notion of good (appearing in conscience or self reflection) is not self evident, by entirely a product of education and training within a culture’s world view. Consider Mau Mau tribe in Africa? Therefore, even if we argue that this notion of good is present in all cultures, this does not logically follow from Finnis’ encapsulation of the good as an innate activity. The Basic Goods Finnis lists seven of such basic goods:
1. Life – The first basic value, corresponding to the drive for self-preservation, is the value of life. The term life signifies every aspect of vitality, which puts a human being in good shape for selfdetermination. 2. Knowledge – A preference for true over false belief. It corresponds to that basic drive we call curiosity, a drive which leads us to reject any celebration of self-proclaimed ignorance or superstition. It is knowledge for its own sake, not merely instrumentally, as an end in itself. 3. Play – Each one of us can see the point of engaging in performances which have no point beyond the performance itself.
4. Aesthetic experience – The Appreaciation of beauty 5. Sociability – acting for the sake of one’s friend’s purposes, or one’s friend’s well being. 6. 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 life-style and shaping one’s own character. 7. Religion – questions of the origins of cosmic order and of human freedom and reason, the need to bring one’s actions and emotions into some sort of harmony what what one can surmise about transcedental order.
Expressed thus, this view is a good that even an atheist can make. Finnis argues that there is a cross cultural importance of these basic goods. To illustrate, there is an agreement on the need value and preserve human life; that procreation as a positive event; that there is a concern for truth that makes for the valuing of education; that there is a consensus on the value of friendship, title for property, reciprocity and play; and that all cultures are finally concerned with treating the dead with rituals and having some form of religion.
There is also no hierarchy within the list and thus the basic goods are considered incommensurable. None of the basic goods “can be analytically reduced to being merely an aspect of any of the others, or to being merely instrumental in the pursuit of any of the other,” and “each one, when we focus on it, can reasonably be regarded as the most important. ” These goods are also pre-moral, in that they do not presuppose any moral judgment. Note: Finnis’ approach is contrasted from anthropological or psychological methodology.
Anthropology or psychology may provide an explaination linking certain urges or drives but it does not justify the value of the basic goods. Classical and Modern Natural Law Theory Note: Finnis’ approach is contrasted from anthropological or psychological methodology. Anthropology or psychology may provide an explaination linking certain urges or drives but it does not justify the value of the basic goods. Note: Finnis’s theory may be compared with Martha Nussbaum’s theory of capabilities.
She attempts to articulate an idea of human capability, that can found an argument about adignity that is cross cultural and cross temporal. This universalist approach to capabilites is directed towards a specific content: of what all human beings share. This catalogue of capabilites which constitutes a good life distinguishes between a minimum level of basic human functioning, which a higher level which includes normal longevity, adequate food, health and shelter, and a capacity for pleasurable experiences. This idea of higher level of functioning is compatible with Finnis’s catalogue of basic goods.
It explains the lack of any allocation in Finnis’ list of requirements for basic functioning (food, water, and shelter). It can be assumed that Finnis’ model presupposes that these have already been acheived to allow the intellectual engagement with the ends of life. Practical Reasonableness And it is practical reasonableness that allows us to articulate the relevance of the basic goods to our conduct. As practical reasonableness and the basic goods are cross cultural (see above), this analysis is univerally relevant and applicable.
Since there is an ethical capcity that is somehow inherent in human beings, it can be modelled on the basis of the basic values and is brought to bear by considering practical reasonableness. Practical reasonableness thus serves as the engine for how we assess and persue the other basic human goods. Correspondingly, there are requirements of practical reasonableness that express the method of working out the basic goods, employing them to acheive fullness of well-being. a. b. c. d. e. f. g. h. Having a coherent plan of life, Not having an arbitrary preference amongst the basic goods,
Not having an arbitrary preference amongst persons, Having a sense of detachment from all specific and limited projects one undertakes, After making a general commitment one should not abandon it lightly, One should act in accordance with his conscience and in fulfillment of personal full-being, Respecting every basic value in every act by never choosing against a basic good, Favouring and fostering the common good of one’s communities. Practical reason also articulates the terms of common existance. Only in communal life are there the conditions for the pursuit of basic goods, as ethics presupposed the embedding in a culture.
And since the common good requires a legal system, this illustrates how law, as a structure of communal life, must reflect basic values. Note: Finnis acknowledges that legal systems can work against the common good. In such circumstances, Finnis refused to accept that man should not accept the law as lex iniusta non est lex. Unjust law are, in his view, a subordinate concern of natural law theory. If a ruler uses his authority to make stipulations against the common good, or against the basic goods of practical reasonableness, those stipulations lack the authority they would otherwise have. Classical and Modern Natural Law Theory
The first moral principle In addition to the principles of practical reasonableness, Finnis describes a first moral principle. The first principle of morality, or FPM, states: “In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with integral human fulfillment. Finnis’ discussion of the good of persons and communities refers to integral human fulfillment, and not an individualistic self-fulfillment. The FPM is “a guiding ideal, rather than a realizable idea” because it operates as a basic good and is open ended.
However, unlike a basic good the FPM does not give reasons for acting; instead, it moderates the interplay of the reasons given by the basic goods and allows deliberation to be thoroughly reasonable. With the introduction of the FPM, Finnis provides a morally perceptive rule that choices be compatible with integral human fulfillment. The FPM and the principles of practical reason present more specific moral norms to be derived, allowing one to distinguish between acting morally right or morally wrong and to formulate a set of general moral standards.
Finnis’ theory of law – Its focal meaning For Finnis (and Hart), law is a matter of rules. In a legal system, there is a sovereign authority that is determinate and effective, who creates universally binding rules. And this law resolves a community’s coordination problems, to create a coherent political, economic and social order. Finnis thus states law’s focal meaning is an authoritative common ordering of a community, aimed at facilitating the realisation of the common good.
Note: The ‘focal’ concept of law that Finnis describes is a theoretically narrowed, multifaceted conception of law as the rules and institutions which flow from working out of the requirements of practical reasonableness in its quest to provide a community in which the basic values can be realised. It is not the ordinary concept of law, which is much more diffuse, and which allows ‘law’ to be used of the anthropologist’s primitive ‘legal’ culture, or to be used of the rules of a tyrant’s coercive regime or the rules of the Mafia. To realise such common good, law must protect the basic goods, in a pratical reasonable way.
Pratical reasonableness is defined by Finnis as a set of human actions, dispositions and conceptions which hang together by adapting to a specifiable set of human needs considered in the light of the human condition and found in varying forms and degrees of suitablility for human needs, as a reasonable person would access them. Thus, given that human beings are characterised by practical reason, and allowing the fact that the forms of practical reason can vary infinately to suit what is needed, we can understand how law should include and protect the basic goods.
And it does so in rules like the prohibition against murder, as it would clearly relate to the first of the seven basic values. It thus has a normative content. Classical and Modern Natural Law Theory However, Finnis notes that not all laws have such a normative vocabulary. Legislators do not draft laws saying that “killing is prohibited”, instead saying that “Any person who kills will be guilty of an offence”. This is because the legislators prefer to draft in the pattern of a future legal order, which is structured by formal categories of law that do not appear to be directly associated with values or normative terms.
But this does not prevent the use of these formal categories to be used by citizens in applying practical reasoning about his duties and obligations. Even the law of “it is an offence to kill”, which is not drafted in normative vocabulary would imply a normative direction to citizens. For there is a legal norm, so intrinsic to any legal ordering of community that it need never be enacted, that criminal offences are not to be committed. Similarly, judges or legislators do not just apply the rules of practical reason or make deductions from it.
Since there are laws whose structure cannot be simply or directly be derived from practical reason, law creating acts cannot simply be seen as having practical reason as their content. These rules, as quoted from Aquinas, are implementations or determinations, derived from natural law (see above). Finnis provides an example, if material goods are to be used efficiently for human well-being, there must be a regime of private property. This regime will be constituted by rules assigning property rights in such goods.
But precisely what rules should be laid down in order to constitute such a regime is not ‘determined’ by this general requirement of justice. Thus, the precise nature of these rules wil be determined by a variety of factors. When the reasonable legislator is constructing determinations, her principles include the Rule of law and a variety of other principles related at some level to the methodological requirements of practical reason. These principles (referred to as second order principles) express the desirability of stablilty and predictability in the relations between one person and another.
These second order principles relate, in varying degrees, to the basic goods and methodlogical requirements of practical reason. These second order principles are listed as: a. Compensation for compulsory acquisition of property rights in terms of both actual losses and loss of profits. b. No liability for unintentional injury without fault. c. No criminal liability without mens rea d. no criminal liability without mens rea e. Estoppel f. He who seeks equity must do equity g. No aid to abuse of rights h. Fraud unravels everything i. Profits received without justification must be restored
j. Contracts are to be performed k. Relative freedom to change existing patterns of legal relationships by agreement l. Weak are to be protected against their weakness m. Both sides to a dispute are to be heard n. No one can be the judge in his/her own cause. Classical and Modern Natural Law Theory Thus, to be authoritative or legitimate, a determination needs to be consistent with the basic requirements of practical reason. However, this does not mean that practical reason is somehow the direct content of law. Law does not have a moral or normative content. They are determined by a
variety of factors- for instance- the requirement that the legal system is coherent. However, practical reason remains relevant as the broader structures of a legal system as derived from the requirements of practical reason. The effect of unjust laws As stated before, Finnis argues that natural law does not assert that an unjust law is not a law. He states that the principle concern of natural law theories is to identify the principles and limits of the Rule of Law and to trace the ways in which sound laws, in all their positivity and mutability, are to be derived from unchanging principles.
But what is the effect of injustice in law? There are four ways this question can be played out in relation to the corresponding requirement of citizens’ obligation: 1. Does injustice affect the liability subjected to sanctions in the event of non-compliance? Aquinas refers to Austin calling this notion ‘stark nonsense’, when he impugned those who argue that human laws that are in conflict with divine laws are not law. If you break a law, you will be punished for that breach, even if you feel there was no obligation to obey the law. 2.
Does injustice affect the legal obligation, in the intrasystemic sense, to obey law? By intrasystemic, it refers to the the assertion that conformity to the law is socially necessary as a framework principle insulated from the rest of practical reasoning. Finnis argues that legal systems are not infact “insulated” from practical reasoning that derives not from the authority of the legal system, but from other compelling sources, such as arguments about the public good or justice (the overturning of the common law exception to rape in marriage in R v.
R , for example). This may lead to a stipulation being judged unjust and inapplicable. However, whether or not a rule is unjust or just will depend on the definitive ruling of a supreme court. 3. Does injustice affect the legal obligation, in the moral sense, to obey law? The question is phrased so: Given that legal obligation presumptively entails a moral obligation, and that the legal system is by and large just, does a particular unjust law impose on me any moral obligation to conform to it?
This is the question that positivist have seen as inappropriate to jurisprudence. Finnis states that a ruler has, very strictly speaking, no right to be obeyed; but he has the authority to give directions and to make laws that are morally obligatory and that he has the responsibility of enforcing. He has this authority for the sake of the common good…Therefore, if he uses his authority to make stipulations against the common good, or against any of the basic Classical and Modern Natural Law Theory
Finnis states that a ruler has, very strictly speaking, no right to be obeyed; but he has the authority to give directions and to make laws that are morally obligatory and that he has the responsibility of enforcing. He has this authority for the sake of the common good…Therefore, if he uses his authority to make stipulations against the common good, or against any of the basic principles of practical reasonableness, those stipulations altogether lack the authority that they would have by virtue of being his and simply fails to create any moral obligations whatever. ”
Thus Finnis is of the classical natural law position when it comes to this issue: for the purpose of assessing one’s legal obligations in the moral sense, one is entitled to discount laws that are ‘unjust’, such laws lack the moral authority that in other cases comes simply from their origin. In this sense, unjust laws are not laws. 4. Does injustice affect a moral obligation, deriving from some collateral source, to obey law? In regards to the assumption that disobeying a single law may weaken the law as a whole with negative consequences for the public good, does this collateral fact create a moral obligation?
Finnis argues that the obligation to comply with the law is a legal obligation in a moral sensebecause it is not founded on the “good of being law abiding”, but on the desirability of not rendering ineffective the just parts of a legal system- “Hence it will not require compliance with unjust laws according to their tenor or legislative intent, but only such degree of compliance as is necessary to avoid bringing the law as a whole into contempt.
So, if an unjust stipulation is, in fact, homogenous with other laws in its formal source, in its reception by courts and officials, and in common acceptance, the good citizen may (not always) be morally required to conform to that stipulation to the extent necessary to avoid weakening ‘the law’, the legal system as a whole. The ruler still has the responsibility of repealing rather than enforcing his unjust law, and in this sense has not right that it should be conformed to. But the citizen, or official, may meanwhile have the diminished, collateral, and an important sense extra legal, obligation to obey it.