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Jurisprudence for Dummies – Natural Law before Finnis

By skepticlawyer

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.

Natural Law
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 ‘natural law’ 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 – or in any society. Put another way, the legal validity of enactments cannot be separated from their morality.

Natural law comes in two ‘forms’:

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) It’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 – philosopher kings) or individualistic (Locke – 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 – it’s always available to legislators, judges and citizens of any jurisdiction in the field of justice – correcting wrongs and distributing goods.

2. Natural law is a higher law than posited law – 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 – you can, by thinking, move to identify natural justice (eg – because it’s natural for humans to live in organised societies, rules are justified) – you can discover it in nature, in human nature, or through its self–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 ‘always right’. Fritz Kern comments that ‘the medieval world was filled with theoretical respect for the sanctity of the law – 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.’

The ancient world was permeated by teleological thought, that is, a belief that everything has a pre-ordained purpose – there’s a pattern to the world and to each thing in it (Socrates, Aristotle, the Stoics – also the Oracle in The Matrix).

If the teleological world–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 – living a full, virtuous, satisfying life in accordance with universal laws. Since the individual is a part of the unchangeable scheme of the universe, ‘goodness’ involves living in accordance with the natural scheme of things. For the Greeks, evil arose when people tried to ‘kick over the traces’ 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 self–correcting: acting contrary to the scheme of things was considered hubris. This was followed inevitably by nemesis.

Plato

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 Plato’s Republic is presented in Aldous Huxley’s novel Brave New World. Within the state, every person has a role or function, and ‘just conduct’ lies in fulfilling his or her role.

Plato’s state is elitist – only the best can understand the ideal – and highly authoritarian. He posits government by philosopher kings (benevolent dictators) who can understand and implement the ideal reality. Essentially, a person’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 self–control.

Plato did not consider who would appoint the ‘philosopher kings’ and whether they would be capable of resisting the blandishments of power. He had great faith that educated people would ‘do the right thing’.

Aristotle

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 ‘natural’. Detailed enactments – ie size of fines, length of prison terms – may justifiably differ from place to place. This is ‘legal’ justice.

1. Although not explicitly stated, there is a strong suggestion that only just laws may be laws properly so called.

2. Aristotle’s view of a hard case – that is, where the law falls short by virtue of its universality – 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.

Stoicism

This was the most popular philosophy among Roman lawyers. The Stoics were also strongly teleological. Cicero argued that ‘true law is right reason in agreement with nature’. Cicero explicitly stated that laws passed in contravention of natural law are unjust – 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 – 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.

Thomas Aquinas

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, Aquinas’ theories (not just about law) were designed to defend the spiritual and political authority of the church from what medieval scholars called ‘the secular arm’. This is not to say that the kings and queens of medieval Europe were anti-Christian – far from it. They merely wanted to concentrate power in their own hands, and at that time the church had power. It had become – in the words of modern-day military leaders – a ‘legitimate target’.

1. Early church doctrine had held that the coercive authority of the state arose as a consequence of sin – for St Augustine, a Christian living in the Roman Empire, states were but ‘robber bands enlarged’.

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 humanity’s original sin. Obedience was therefore a Christian duty: ‘render unto God that which is God’s and unto Caesar that which is Caesar’s’.

3. Aquinas recognised that – Christians or not – 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 – even in the state of innocence before the ‘fall’. 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, Aquinas’ Christian God is not subject to universal laws. He is omnipotent.

Aquinas posited 4 categories of law:

1. Eternal Law: God’s plan for the universe – 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 – it’s an imperfect reflection of divine jurisdiction. Human laws are variable according to time and circumstance – their purpose is to be useful and thus they are valid. Human laws can serve the common good within the authority of the lawgiver.

However:

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 law–maker.

3. Law is invalid at the human level if it is unjust with respect to its form – 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

‘The Hume problem’

Much of modern legal positivism (and Hayek’s evolutionary theory) has its origins in a discovery by the Scottish philosopher and natural scientist David Hume [1711–1776]. Put briefly, Hume’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 – one has only to look at the papal encyclical Humanae Vitae [1968] 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 ‘first premise’ 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 ‘natural’ 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 Hayek’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 couldn’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 ‘a butterfly flapping its wings in Beijing could cause hurricanes in the Gulf of Mexico.’ This means that even if there is an ‘end’, unless we are willing to believe ‘on faith’ a certain religious/theoretical view of that ‘end’ or purpose, we not only don’t know what it is. We can’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 CJ’s reinterpretation of the 14th Amendment from ‘separate but equal’ to a desegregation policy was based on natural law arguments. He held that to receive equal protection under the law, one couldn’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.

24 Comments

  1. Posted December 7, 2006 at 10:13 am | Permalink

    James Franklin at the Uni of NSW is heavily promoting natural law at present. I posted on this before but it has presumably gone in the server crash. It is a lost cause on account of the is/ought problem as Helen indicated but people cling to it on the belief that you have to have some kind of positive basis or everything is arbitrary.

    The problem in its logical form is precisely the same as the problem of induction in epistemology and the philosophy of science where Hume is also the reference point.

    The answer in each case is to settle for critical preferences (instead of dogmatic beliefs) based on problem-solving capacity and the ability of the theories, principles or proposals in question to stand up to various forms of criticism.

    http://www.the-rathouse.com/popcritpref.html

  2. Posted December 7, 2006 at 10:19 am | Permalink

    So what is the full list for Suri’s cricket team?

    I have got Kant and Hume in the second row of the open society rugby league team. Mises and Popper are the props and I fancy myself at 5/8 to look after the kicking game.

  3. Posted December 7, 2006 at 10:21 am | Permalink

    I’ll have to ask him, Rafe – I did have it in my notes somewhere, but it’s not to hand. I’ll email him and ask for it so it can go up on Catallaxy.

  4. Posted December 7, 2006 at 10:57 am | Permalink

    Well I don’t know about the order but the squad would have to include Plato and Aristotle (if we could buy out their contracts and get them to transfer from the closed society) Hume, Kant, Locke, Mill, the German guy who Mill dedicated his book to, Mises, Hayek, Popper, Paine, and some of the authors of the US Constitution.

  5. terjepetersen
    Posted December 7, 2006 at 1:55 pm | Permalink

    SL,

    Where would Sharia (islamic law) fit? I would think it is a form of natural law.

    In Iran they have a constitution (the Koran) a supreme court to interprete it (the clerics) and executive government that is notionally democratic. Which in form at least sounds a lot like the USA. The distinction of course is the natural law that they rely on.

    Your history lesson also gives a bit more background to the old adage that homosexuality is wrong because it is “not natural”. Essentially it is a claim that we should not reproduce that way because it does not work.

    Regards,
    Terje.

  6. Posted December 7, 2006 at 2:51 pm | Permalink

    I deal with Sharia in the section on Hartian positivism, and now I know you’re interested I’ll make sure to flag that section. Sharia is actually an odd amalgam of natural law and positivism, but it’s missing key indicia from both.

    The natural law elements collapse for the same reason as Aquinan natural law collapses (the Hume problem), to be fair. That said, the positivist elements are probably more interesting.

  7. terjepetersen
    Posted December 8, 2006 at 12:44 pm | Permalink

    I am interested. I think you’re going to move too fast for me to absorb all of this. However that is probably better than moving too slow. Osmosis takes time and maybe with repetition some of the key concepts will soak in.

  8. GMB
    Posted December 8, 2006 at 12:58 pm | Permalink

    We should use instead the phrases “negative laws” and “negativist law”.

    It reads better and is closer to the truth of it.

  9. GMB
    Posted December 8, 2006 at 1:20 pm | Permalink

    And if we use that terminology for a full-on knock-down debate I predict that only natural law will emerge victorious.

    And this negative law will be seen to be a fraud and worthy of the ash-heap of history.

  10. GMB
    Posted December 8, 2006 at 1:23 pm | Permalink

    “The natural law elements collapse for the same reason as Aquinan natural law collapses (the Hume problem), to be fair. That said, the positivist elements are probably more interesting.”

    I…… don’t…… THINKSO.

    But we shall see.

    [EDIT BY ADMIN - I, GRAEME BIRD, WILL BE FORCED TO APOLOGISE TO FDB BY HAVING THIS COMMENT FORCIBLY INSERTED IN ALL OR MOST OF MY COMMENTS UNTIL I VOLUNTARILY RETRACT OR APOLOGISE TO FDB FOR MY VILE COMMENT ON THE GAIDAR THREAD]

  11. Jason Soon
    Posted December 8, 2006 at 1:30 pm | Permalink

    you resolve the Hume problem Graeme, then we can talk

  12. Posted December 8, 2006 at 1:35 pm | Permalink

    Suri offered an instant 7 in jurisprudence to anyone who could come up with a solution to the is/ought conundrum. You didn’t even have to sit the exam. Needless to say, no-one could…

    Jason, have GMB and FDB sorted their issues out? I thought something had been done about it and so stopped sooning. Sorry about that, I’ve been running around organising 18th birthday parties and the like.

  13. GMB
    Posted December 8, 2006 at 1:36 pm | Permalink

    There is no Hume problem.

    It is resolved and was never unresolved.

    Humes act seems like a suck-up to the proffession. And attempt at immortality.

    There is no Hume problem except for people who had the expectation that we could solve these problems with the co-ordinate-point exactitude of mathematics.

    Which was a foolish expectation for starters.

    [EDIT BY ADMIN - I, GRAEME BIRD, WILL BE FORCED TO APOLOGISE TO FDB BY HAVING THIS COMMENT FORCIBLY INSERTED IN ALL OR MOST OF MY COMMENTS UNTIL I VOLUNTARILY RETRACT OR APOLOGISE TO FDB FOR MY VILE COMMENT ON THE GAIDAR THREAD]

  14. Bring Back CL's Blog
    Posted December 8, 2006 at 2:08 pm | Permalink

    When anyone injects Hume into the argument they are taking the highway to the subject

  15. Posted December 8, 2006 at 2:11 pm | Permalink

    I’m not sure I know what you’re getting at, Homer.

    Please explain ;)

  16. Jason Soon
    Posted December 8, 2006 at 2:15 pm | Permalink

    The Hume highway is a highway in NSW. Homer is just being a clown as usual …

  17. Posted December 8, 2006 at 2:18 pm | Permalink

    I know that. I’m just trying to get him to do something other than bad puns on a topic I suspect he knows a fair bit about.

  18. GMB
    Posted December 9, 2006 at 12:49 am | Permalink

    The Hume problem is no problem at all.

    Because nothing can pass that test.

    Its a MEGO argument to say that negativist law beats seven shades of shit out of natural law on account of the HUME problem.

    Since NOTHING AT ALL can pass Humes high bar then finding that natural law cannot pass over it……. the MEGO argument comes into play.

    That is to say MY EYES GLAZE OVER.

    Its very much like talking to a born-again Christian when you are at High-School or undergraduate level.

    And you get to the Big Bang (since then I’ve become a big-bang skeptic by the way but thats neither here nor there)

    And he says…… Aha?

    But who created the Big Bang?

    And he thinks he got you. He thinks that the inescapable conclusion is that GOD DID IT!

    God must have done it.

    This is a MEGO argument.

    But it simply hasn’t solved the conundrum. And since pretty much nothing that I’ve been told about yet CAN solve that particular conundrum of something out of nothing then no God conclusion can be taken from this.

    HIS existence has to be deduced or ruled out elsewhere but it cannot be found in this MEGO argument.

    And I would think its the same for utilitarianism, positivist (ie negativist) law… And pretty much anything that comes about by worrying about the David Hume high bar.

    You go down to the athletics track. And you look at that high-jump bar….

    You’ve measured your standing leap and related it to the best you can hope to do with the Fosbury flop.

    But then they put the bar up to 15 feet.

    You do some calculations and realise that no matter what, the Fosbury flop will not send you over the bar.

    So you retreat to the ivory tower with your philosopher friends…. And they ruminate for a few months.

    And then they put all their faith in the Scissors.

    And they never quite focus on the reality that the scissors cannot reach that high bar either.

    The Popperians will prove to be evasive on these points where they could be most helpful.

    I think we ought to sort this one out.

    Skeptic?

    Can you tell me that positive merits of Positivist (ie negativist) law.

    In what way does such law theory outcompete natural law theory?

    I figure you haven’t got quite so much skin in this as does Jason or Daniel Barnes or even Rafe.

    And plus you know a lot about law and all.

    So you might be able to put the positivist (ie negativist) case and be a booster for Hume without running away.

  19. Posted December 9, 2006 at 1:12 am | Permalink

    I’m not a positivist, Graeme. My next section will be on some of the different schools of positivism, which I find interesting but not persuasive.

    If you were to categorize my thinking, I’d best be described as an evolutionary theorist. This has its origins in Hayek’s thought, although to be fair Hayek made use of Hume as well.

    Hume is an early exemplar of critical thinking about the role of custom, something that Hayek did much more research on in Law, Legislation and Liberty. He wasn’t a positivist; positivism was very much a creation of Bentham and James Mill. Crucial bits of it were adapted by John Stuart Mill, but he also rejected some of positivism’s crude majoritarianism.

  20. GMB
    Posted December 9, 2006 at 1:47 am | Permalink

    Right.

    Well it looks like it could get very interesting.

    Does this evolutionary theorist stuff find itself going way out of the bounds that one expects from natural law theory?

  21. Posted December 9, 2006 at 1:54 am | Permalink

    My piece on Native Title – available here gives you a pretty good outline of Hayekian jurisprudence.

  22. GMB
    Posted December 9, 2006 at 2:04 am | Permalink

    Right.

    I read that before. Though I remember you described it as a draft.

    In any case its one of those things that can use a second reading.

    But what I’m saying is this.

    In practice do you think that Hayekian Jurisprudence would come into conflict with natural law theory. Or if the two were irreconcileable.

    What would be your best guess on that?

  23. Posted December 9, 2006 at 2:19 am | Permalink

    They’re very different ways of thinking about law, Graeme, but to be honest I’m not really sure. I’d have to do some research – revisit some Finnis, and then go through Hayek, Smith and Hume again.

  24. GMB
    Posted December 9, 2006 at 3:03 am | Permalink

    Its good that they are different.

    In that I think we can only get a good handle on what we can be pretty sure about by convergence.

    So that if each school of thought has some sort of legitimacy however imperfect yet they are coming in from totally different angles.

    Then this gives us some opportunity to look into those regions where they might intersect.

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