Rafe mentioned Natural law and David Hume’s analysis of its weaknesses in the first Jurisprudence for Dummies thread, and so reminded me that it may make more sense to treat jurisprudence sequentially, rather than in the order in which it is commonly taught. With that in mind, I’ve posted the first part of the natural law section in my personal guide to jurisprudence.
I plan to deal with Professor John Finnis separately, after my discussion of Hart, Fuller and Dworkin, three great positivist/quasi-positivist thinkers (Dworkin is a bit special, because he’s not a utilitarian) Finnis sought to refute. Ultimately, however, the thinker Finnis disagrees with most is David Hume, Hayek’s intellectual grandaddy (and first drop in Suri Ratnapala’s all-time greatest philosophers’ cricketing eleven). After reading this post, you’ll see why Suri loved Hume.
The natural law tradition is much older than the tradition of legal positivism. The latter largely arose in response to perceived deficiencies in the former. The â€˜natural lawâ€™ label is attached to many theories, most of which involve the search for absolute justice. Historically, natural law provided the basis for molding Roman law into the medieval system, and now provides the basis for the validity of international law. Positivists and natural lawyers are often in conflict over the status of international law, largely due to its perceived lack of sanctions.
If there is an idea common to all natural law it is that human enactments lose some or all of their capacity to command obedience when they contravene moral standards widely observed and accepted in the relevant society â€“ or in any society. Put another way, the legal validity of enactments cannot be separated from their morality.
Natural law comes in two â€˜formsâ€™:
1) There are universal rules of natural law that command the obedience of most people in a moral sense. However, these universal laws do not necessarily invalidate positive laws that offend them.
2) There are universal rules of natural law that are self-evidently or demonstrably true such that human enactments that violate them cannot be regarded as law in the legal or moral sense: lex injusta non est lex.
It is important to keep these two propositions separate, as only the second stands in direct conflict with positivism. There can be some accommodation with the first.
Natural rights theory (derived from natural law and an important part of international law) claims that there are basic human rights and freedoms that are inviolable by positive law, or with which positive law must comply. Natural rights theory presupposes a wider concept of natural law conferring such rights.
A few observations
1) Itâ€™s easy to dismiss natural law as a guise for political or religious beliefs. This is a persistent element of arguments on law, morality and their functions.
2) In fact, natural law can be any number of things. It may be authoritarian (Plato â€“ philosopher kings) or individualistic (Locke â€“ social contract and individual rights). There is also a strong progressive tradition, epitomised by Gustav Radbruch, although much natural law is politically conservative, drawing on religious tradition. Although natural law is associated with religion (especially Catholic doctrine) in that it is supposedly revealed by a higher power, some natural lawyers maintain it can be discovered through reason.
Natural law has multiple purposes:
To identify the characteristics of perfect law.
To explain how to make perfect law.
To identify ideals which ought to guide the making of law.
To identify the minimum moral requirements of valid law.
To demonstrate that law cannot be separated from morality.
Three strands of natural law
1. Natural law is universal and unchanging â€“ itâ€™s always available to legislators, judges and citizens of any jurisdiction in the field of justice â€“ correcting wrongs and distributing goods.
2. Natural law is a higher law than posited law â€“ it is superior to human laws, and thus identifies what human laws are binding on us (ie when they embody the natural law). It provides a standard of evaluation or test for the validity of positive law.
3. Natural law is discoverable by human reason â€“ you can, by thinking, move to identify natural justice (eg â€“ because itâ€™s natural for humans to live in organised societies, rules are justified) â€“ you can discover it in nature, in human nature, or through its selfâ€“evidence.
Classical Natural Law
In the ancient world and Medieval Europe, deliberate law making was not common. Similarly, there was no clear distinction between moral and legal rules (thinking tended to be: morality = right conduct = laws).
Law was seen as sovereign, not the state. The law could not be changed by the state as it was considered to be â€˜always rightâ€™. Fritz Kern comments that â€˜the medieval world was filled with theoretical respect for the sanctity of the law â€“ not for the prosaic, dry, flexible, technical, positive law of today, dependent as it is upon the state; but for a law which was identified with the sanctity of the moral law.â€™
The ancient world was permeated by teleological thought, that is, a belief that everything has a pre-ordained purpose â€“ thereâ€™s a pattern to the world and to each thing in it (Socrates, Aristotle, the Stoics â€“ also the Oracle in The Matrix).
If the teleological worldâ€“view is accepted, it must mean that human beings by nature behave in accordance with these universal laws, simply because people are part of a universal, purposive scheme. This is summed up by the Classical Greek concept of eudemonism â€“ living a full, virtuous, satisfying life in accordance with universal laws. Since the individual is a part of the unchangeable scheme of the universe, â€˜goodnessâ€™ involves living in accordance with the natural scheme of things. For the Greeks, evil arose when people tried to â€˜kick over the tracesâ€™ and behave contrary to a nature that was discoverable through observation combined with reason.
Delinquent behaviour contrary to universal law arose as a result of ignorance. The Greeks had great faith in the power of education to put people right. The Greeks also viewed the universe as selfâ€“correcting: acting contrary to the scheme of things was considered hubris. This was followed inevitably by nemesis.
Plato outlined his ideas in a book-length treatise called The Republic. His ideas have a totalitarian flavour to them now, but at the time were revolutionary. Among other things, he was the first thinker to develop a coherent argument for the equality of men and women. In his view, the state, like all things, has a certain end. A just state is one that is organised in such a way as to achieve this teleological purpose. A modern interpretation/satire of Platoâ€™s Republic is presented in Aldous Huxleyâ€™s novel Brave New World. Within the state, every person has a role or function, and â€˜just conductâ€™ lies in fulfilling his or her role.
Platoâ€™s state is elitist â€“ only the best can understand the ideal â€“ and highly authoritarian. He posits government by philosopher kings (benevolent dictators) who can understand and implement the ideal reality. Essentially, a personâ€™s role in the state is determined by his or her capacities.
The philosopher king must have a good memory, readiness to learn, breadth of vision and grace. He/she must be a friend to truth, justice, courage and selfâ€“control.
Plato did not consider who would appoint the â€˜philosopher kingsâ€™ and whether they would be capable of resisting the blandishments of power. He had great faith that educated people would â€˜do the right thingâ€™.
Like Plato, Aristotle was strongly influenced by teleology and eudemonism. Also like Plato, he did not directly confront the question whether a law that is unjust is law at all. However, he equates law with justice on the basis that law invariably aims at what is just.
Aristotle draws a distinction between natural and legal justice. There are certain broad principles of justice which are valid everywhere. These are â€˜naturalâ€™. Detailed enactments â€“ ie size of fines, length of prison terms â€“ may justifiably differ from place to place. This is â€˜legalâ€™ justice.
1. Although not explicitly stated, there is a strong suggestion that only just laws may be laws properly so called.
2. Aristotleâ€™s view of a hard case â€“ that is, where the law falls short by virtue of its universality â€“ is directly concerned with unjust outcomes, rather than an absence of law. Universality here means a law that is designed to work 95% of the time, but fails in certain situations simply because no general law can be drafted in such a way that it is adapted to every possible circumstance.
This was the most popular philosophy among Roman lawyers. The Stoics were also strongly teleological. Cicero argued that â€˜true law is right reason in agreement with natureâ€™. Cicero explicitly stated that laws passed in contravention of natural law are unjust â€“ e.g. a law permitting robbery. There were some departures from the Aristotelian position, however.
Cicero recognised that someone may be educated (ie not ignorant) and still commit evil acts. He did not accept that education would solve all the problems of ignorance. Even a state that attempted to destroy natural law with positive enactments could never abolish it entirely. That said, Roman ideas about the content of moral universals were very different from those of the Greeks, or those of modern natural lawyers. I studied Latin as a freshman â€“ trust me, Gladiator represents the G-rated version of how they entertained themselves.
There’s a bit of a gap here between the ancient world and that of the medieval ‘schoolmen’, which had a fair bit to do with this thing called the Dark Ages, Goths, Visigoths, Vandals, Huns etc. By the time the medieval world got around to thinking about justice, scholars were reduced to retranslating ancient texts out of Arabic back into Latin and Greek. At that time, the Islamic world was less into burning libraries down etc, although they too had their moments.
Just before Aquinas started writing, there was a major dispute between the Holy Roman Emperor and the Pope. The authority of the church was challenged all over Europe, largely because various kingdoms (the ancestors of modern European states) were becoming more powerful. In part, Aquinasâ€™ theories (not just about law) were designed to defend the spiritual and political authority of the church from what medieval scholars called â€˜the secular armâ€™. This is not to say that the kings and queens of medieval Europe were anti-Christian â€“ far from it. They merely wanted to concentrate power in their own hands, and at that time the church had power. It had become â€“ in the words of modern-day military leaders â€“ a â€˜legitimate targetâ€™.
1. Early church doctrine had held that the coercive authority of the state arose as a consequence of sin â€“ for St Augustine, a Christian living in the Roman Empire, states were but â€˜robber bands enlargedâ€™.
2. Humans had to be punished for their original sin, hence obedience to the state (even though it had emerged as a result of sin) was installed by God as a punishment and remedy for humanityâ€™s original sin. Obedience was therefore a Christian duty: â€˜render unto God that which is Godâ€™s and unto Caesar that which is Caesarâ€™sâ€™.
3. Aquinas recognised that â€“ Christians or not â€“ the rulers of Medieval Christendom were not going to accept that they only had their power as a consequence of sin and evil.
4. Aquinas argued that the political state is not a punishment but is natural â€“ even in the state of innocence before the â€˜fallâ€™. In this, he followed Aristotle.
Like Aristotle, Aquinas was essentially teleological. However, he added that the whole scheme of the universe is ordained and controlled by God. Unlike the Greek and Roman gods, Aquinasâ€™ Christian God is not subject to universal laws. He is omnipotent.
Aquinas posited 4 categories of law:
1. Eternal Law: Godâ€™s plan for the universe â€“ known only to God.
2. Natural Law: participation by humans in eternal law, and discoverable by human reason.
3. Divine Law: the Bible, or that part of the eternal law revealed to humans.
4. Human Law: human law made by human authority. It is needed to build on the conclusions of natural law and to restrain wrongdoing.
The state is a natural institution and serves elementary social needs and the common good â€“ itâ€™s an imperfect reflection of divine jurisdiction. Human laws are variable according to time and circumstance â€“ their purpose is to be useful and thus they are valid. Human laws can serve the common good within the authority of the lawgiver.
1. Law is invalid at the human level if it is for an unworthy purpose.
2. Law is invalid at the human level if it is unjust in respect of its human author or exceeds the power of that lawâ€“maker.
3. Law is invalid at the human level if it is unjust with respect to its form â€“ eg it imposes burdens unequally.
Human law must be obeyed even if unjust except in special cases of scandal or danger. Nonetheless, human law that violates natural or divine law is not law but a corruption of law: non lex sed legis corruptio.
Problems with Classical Natural Law
â€˜The Hume problemâ€™
Much of modern legal positivism (and Hayekâ€™s evolutionary theory) has its origins in a discovery by the Scottish philosopher and natural scientist David Hume [1711â€“1776]. Put briefly, Humeâ€™s law states that you cannot infer a value from a fact. This is best illustrated by an example:
1) The human race reproduces itself by bearing children.
2) Jane is a human being.
3) Therefore Jane ought to have children, or at least make the attempt.
I have used this particular example (Hume provides lots more in his writings) because it illustrates the seriousness of the problem for natural law. Much religiously inspired natural law (to take one example) makes a case for non-contraceptive reproduction â€“ one has only to look at the papal encyclical Humanae Vitae  and the writing of John Finnis, arguably the best modern natural lawyer.
However, unless one believes in a particular, teleological interpretation of the Bible (or Koran, or other holy book, or other defined perspective), then you cannot argue that just because Jane can have children, she therefore should have children. Inference 3 (value) does not follow logically from inferences 1 and 2 (both facts).
Natural lawyers have been trying to prove Hume wrong ever since he first made the discovery, utterly without success. Since natural law depends so heavily on universal values, the inability to determine them with accuracy (or at all, if Hume is to be believed) makes its task of linking morality to law doubly difficult. This means that Natural law is now stuck with an extremely awkward â€˜first premiseâ€™ problem. While positivism and evolutionary theory may have weaknesses embedded within their arguments, natural law theory falls at the first hurdle.
Arguably, natural law theory has become dependant on proving the existence of God, or proving that human beings have certain â€˜naturalâ€™ traits that arise through genetic/biological inheritance. Unfortunately, our biology (what few traits that are instinctive) does not line up with the claims of natural law. If anything, biology provides support for Hayekâ€™s evolutionary theory of law.
Irreducible complexity and the problem of prediction
Even if you accept the teleological view (everything and everyone has an end or purpose), there is disagreement as to that purpose, largely because we do not know what the purpose of the universe may be. Aquinas accepted this point of view because he argued that human beings couldnâ€™t know the mind of God. However, the problem, although still one of knowledge, really concerns the extraordinary complexity of the universe. Because the universe is so complex, it is impossible to predict with certainty any particular outcomes, and therefore argue for a particular end or purpose.
The problem of complexity and prediction is a modern discovery. To take just one example: physicist Edward Lorenz developed a mathematical model to predict the weather. However, he discovered that even though his premises were all correct, the model was vulnerable to the slightest change in initial conditions. His findings have entered scientific folklore as â€˜a butterfly flapping its wings in Beijing could cause hurricanes in the Gulf of Mexico.â€™ This means that even if there is an â€˜endâ€™, unless we are willing to believe â€˜on faithâ€™ a certain religious/theoretical view of that â€˜endâ€™ or purpose, we not only donâ€™t know what it is. We canâ€™t know it.
Achievements of Natural Law
1. Aquinas has become the official philosopher of the Catholic Church.
2. Natural Law ideas (especially those of Locke) stand behind the Bill of Rights in the US (its highest positive law). This is why natural law is so influential in the US.
3. Brown v Board of Education is a leading example of US natural law. Warren CJâ€™s reinterpretation of the 14th Amendment from â€˜separate but equalâ€™ to a desegregation policy was based on natural law arguments. He held that to receive equal protection under the law, one couldnâ€™t use race as a basis for access to education.
4. The UN Charter also recognises ‘natural rights’, deriving their validity through natural law principles.
5. In the Nuremberg trials, crimes against humanity were held to have occurred, despite positive laws in the jurisdiction allowing the relevant conduct.