Social Theory and LawSpring Semester 2014

KILAW

Natural Law:Concluding our discussion

Some problems to think aboutAssessment

Natural Law

• So far we have considered some basic ideas about natural law

• We have seen that there have been differences over the years as to what ‘natural law’ means but essentially natural law’s advocates believe that it provides a rational foundation for moral judgment

• Natural law has had a long-lasting (enduring) appeal• But there are some serious problems with natural law -

some of those problems are summarised here• For further reading, see Lloyd’s Introduction to

Jurisprudence 8th ed (Sweet and Maxwell, 2008) p83-136

Differences and similaritiesCicero

• God is the source of Natural Law – its promulgator, its enforcer

• Humans have reason, reason teaches us justice, justice gives us laws

• Natural Law is whatever promotes god and forbids evil (law should be a reformer of vice and an incentive to virtue)

• Cicero (and later Aquinas) were a bit vague on exactly what is meant by ‘good’ and ‘evil’

• An unjust law is no law at all

Finnis• Natural Law (7 basic goods and 9

rules of practical reasonableness ) are self-evident

• His 7 basic goods are more complicated than simply promoting ‘good’ and forbidding ‘evil’

• Sometimes a law is bad or unjust but it’s still a law and it should still be obeyed – if it’s for the common good

• His 7 basic goods have an interesting similarity to the 5 ‘maqasid’(necessities, priorities, or higher goals) in Islamic Shari’a

Natural Law: a long-lasting idea

• Natural Law seems to have endured over the years

• Look at these international documents:1. Universal Declaration of Human Rights (UDHR)2. French Declaration on the Rights of Man3. United States’ Declaration of Independence4. Kuwait Constitution5. Final remarks

UDHR

• Universal Declaration of Human Rights (UDHR)• Signed in 1948• Soft law – non-binding declaration of human

rights• Aspirational• The first global expression of human rights, to

which all humans are entitled just by virtue of being human

1. UDHR - 1948• Whereas recognition of the inherent dignity and of the equal and inalienable

rights of all members of the human family is the foundation of freedom, justice and peace in the world…

• Article 1.All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.• Article 2.Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status… • Article 7.All are equal before the law and are entitled without any discrimination to equal protection of the law.

Source: http://www.un.org/en/documents/udhr/

2. France• Declaration of the Rights of Man 1789Article 1: Men are born and remain free and equal in rights…Article 2: The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.Article 4: Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

3. United States

• US’ Declaration of Independence• Adopted by the US on 4 July 1776• One of the most famous sentences in the

English language is in the preamble:“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”

3. US continued…• The US Declaration of Independence appeals explicitly to Natural Law in both

the introduction and the preamble

• The Introduction states:When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation”

In other words: according to Natural Law, people have a right to self-determination and political independence

Read more: http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence

4. Kuwait

• Constitution of Kuwait 1962

• Article 29All people are equal in human dignity, and in public rights and duties before the law, without distinction as to race, origin, language or religion.

5. Final remarks• http://www.unfpa.org/rights/quotes.htm

• So, natural law and human rights go hand-in-hand• Aside from these documents, there is a lot of discussion in the media

about so-called “rights”• When people claim they have the:

– “right to privacy” or – “the right to self-determination”– “the right to vote” – “the right to life” – “the right to democracy”– “the right to the internet”– “the right to clean water”Etc…Aren’t they making an appeal to natural law?

So, isn’t Natural Law something that is here to stay?

Hasn’t it proven its durability?It has always been in the background, sometimes in the foreground, but certainly always present when anyone talks about the law

Yes?

Yet…Despite Natural Law’s enduring popularity, there are also some

enduring problems…

Problem 1: “is” and “ought”• Is there any such thing as a ‘moral truth”?• If so, how do we know one when we see one? Where do we get a

‘moral truth’ from?• Natural law thinkers are sometimes criticized for deriving an “ought”

statement from an “is”• They start from a factual statement (what “is”) and then they

deduce a moral statement (what “ought” to be)• For example: It is natural for mankind to reproduce itself therefore

mankind ought to do so– This means that anything that goes against mankind reproducing is wrong,

so, abortion, gay marriage, contraception etc are all against natural law • This type of reasoning has been criticised over the years

Problem 1 continued…

• People who criticize natural law say it is false reasoning and it does not lead to conclusive results

• For example: it would lead us to conclude that mankind ought to reproduce itself – so all mankind is under a moral or legal duty to have children

• Legal positivists would say that natural law thinkers confuse a scientific law (a law which says what does occur) with a moral or legal one (a law which says what should occur)

Problem 2: where does it come from?

• A perennial problem for natural law thinkers is this: where does it come from?

• Different answers have been put forward by different thinkers• Pufendorf wrote that natural law is binding because it is willed by God• But other natural lawyers like Suarez and Grotius wrote in the 17th

century that natural law was willed by God because it is what is rationally good

• Grotius would go so far as to say that natural law would hold good, even if there were no God (because he says even God can’t change the fact that 2 x 2 = 4)

• Others would argue that propositions of natural law are self-evident – that is, they can’t be proven but they are clearly correct (eg. Finnis)

Problem 2 continued…• But is that true? Are natural laws really self-evident? Are there

objective moral truths which are really universal, eternal, unchangeable?

• Slavery? In the past, the ancient Greeks had no problem with slavery and more recently slavery was morally acceptable in America especially in the Southern states

• So, is it self-evident that slavery is wrong?• Drugs?• In some countries it is morally unacceptable to take illicit drugs whilst in

others it is morally acceptable and even legal so…• Is there a solution? Some people (eg Stammler) would argue that

natural law has a variable content• Is Rudolf Stammler correct? Natural Las has a changing content?• But if that’s true, what’s the use of it?

The ‘self-evident’ natural laws and John Finnis

• John Finnis is a modern natural law thinker who has revived some of Aquinas’ old ideas about NL

• We have tried to summarise his ideas in a short handout• He thinks that the natural laws are whatever is self-evidently good for human beings

– and we can understand these by personal reflection• RECALL: he thinks that there are 7 ‘basic forms of good’ – or 7 things that humans

need to flourish• They are:1. Life2. Knowledge 3. Play4. Aesthetic experience5. Sociability (friendship)6. Practical reasonableness7. Religion

Compare Finnis’ Natural Law with Islamic Shari’a

Finnis’ 7 ‘basic goods’

He calls them ‘basic goods’ – human need them to flourish, to live well, to live a good life:• Life• Knowledge• Play• Aesthetic experience• Sociability• Practical reasonableness• Religion

Shari’as 5 maqasid

Maqasid is translated as ‘higher intents’, goals, priorities, necessities – necessary and basic for human existence • Religion• Life • Intellect• Procreation• Property

Read more?http://www.muslimphilosophy.com/ma/works/maqasid.pdf

Tricky problems for law and morality

Here are some issues that come up in many societies and which have posed a problem because of the connection between law and morality: 1. Slavery2. Women’s rights – voting, property, work etc3. Alcohol4. Euthanasia5. Gay marriage6. Abortion7. Prostitution

Some more problems…• So the age-old plea of natural law been that there are more important

obligations, higher ideals, than obedience to the positive laws of the state BUT…

1. How do we know when a law is an “unjust law”?– Aquinas:

• if a man-made law departs from the law of nature then it is no longer a law but a perversion of law

• human laws are just when they serve the common good, distribute burdens fairly, promote religion and are within the bounds of the law-maker’s authority

2. Who decides when a “law” is so flagrant a breach of higher principles that it no longer deserves the term “law”?– Can this be left to each individual to decide?– Or can the decision only be taken by professionals eg judges– If the basis for valuation is reason, then anyone should be able to make that

decision– What would that mean for society?

Continued…

3. What are the consequences of deciding that a law should no longer be considered a law?– Cicero = an unjust law is not a law and need not be

obeyed– Aquinas = perversions of law do not bind the moral

conscience of man and can be ignored BUT the “law” should be obeyed when to break it would lead to scandal or civic disturbance

– Finnis = says that ‘the good citizen may be morally required to conform to an unjust law…to avoid weakening the legal system as a whole’

See Lloyd’s at 90-92 for more discussion

What do you think?

• Why has Natural Law been so popular for so long?

• What use is Natural Law these days?• Can you think how Natural Law can be used

now and in the future?• Do you think Natural Law is useful? Or

useless?

Assessment matters

• Can you describe the main aspects of Natural Law• Can you describe the theory of one (or more)

Natural Law theorists?• Can you evaluate/critique Natural Law?• Can you provide examples to support your

opinion about Natural Law?• In the mid-term and final exams there will be

some knowledge questions and some open-ended critical thinking questions about Natural Law