• Things that are universally accepted, seen as part of human condition can be seen as an approach taken under Natural Law. Within jurisprudence the focus of this approach is on the arrangements appropriate for people to live together in society, and how the role played by the establishment of laws.
  • Jurisprudence theories are either natural law theories or theories of legal positivism (anti-natural)
  • Many theories of the latter begin with the criticism that natural law theories assume that in order to understand what law is, it is necessary to question what law ought to be. This is to ask about the legitimacy and the nature of the ‘binding force’ of law and its relationship with justice, rights and reason. This is inherently faulty. It confuses description (law’s actual existence) with prescription (evaluation of law as good, bad). They stray between the meaning of the unconnected fields of what ‘is’ (fact) and ‘ought’ (value)- ‘the naturalistic fallacy’
  • According to Hume they are unconnected because you cannot derive a statement about what ought to be (involving evaluation) from a statement about what is (one about fact)
  • Why Natural Law?
  • It is not a single theory of law. It is the application of ethical or political theories to the question how legal orders can acquire legitimacy.
  • Natural law theories have lost importance as priority is given to how the meaning of law can be translated into legal practice (legislation, enforcement…). Natural law considers the meanings of justice or how a system of law can be seen as legitimate. Such questions are less important in modern law
  • Modern law considers detailed regulation whose content bears no obvious relation to any ethical theory. Ethical legitimacy hardly arises
  • HRA makes the  importance to individual rights an ethical issue also find examples of people who defend their actions on ‘conscientious’ grounds arguing that their actions are moral, therefore cannot breach the law. This accepts the position that the law necessarily involves some ethical value
  • History of Natural law
  • What is more appropriate a £3,000 fine or a 3 month sentence? This sums up origin of NLT (natural law theory) the consequences that flow from laws are arbitrary. They are a matter of convenience and political interest. The Greeks considered this.
  • Idea of nomos (sacred custom) – regular practices are seen as legitimate. Some practices are seen as normal and from this you can see what is undesirable and abnormal.
  • Plato and Aristotle considered an alternative to nomos (cant always reconcile 2 competing customs)
  • Plato saw basis of ethics in values to which things could be approximate (e.g. a vase is an object bit not itself ‘beauty’ (value is one of aesthetics). The description beautiful may be used. Men know that value but its content could be fully identified through the application of reason) Plato saw justice as one of the absolute values. It has an intrinsic relationship with law.
  • Justice is an absolute value which law should aim at and law that is bought with wealth is not just
  • Plato saw customs as conventions, ethics lie in universal values
  • Aristotle also sought to identify values through the use of reason but the source of those values is not absolute values but in nature (human). Nature has elements of both change and stability. The 2 were unified by telos or end of things. Things evolve towards their ends ‘nature makes nothing without some end in view, nothing to no purpose…’ Our sense of what is wrong takes its meaning from what is healthy. He observed that man is a social animal and also a political one but this was only possible within a city state (polis). The creation of a polis allowed man to fulfill which remained unfulfilled whilst he remained in small family groups. He concluded that polis was not a threat to nomos but essential to the fulfillment of man’s purpose. Therefore laws must be appropriate to fulfill the social animal. So, he is saying you must look at essential elements in humans to construct ethical arguments.
  • As the Greek Empire developed one needed to consider things beyond the city state. The Stoics looked at ethics beyond the city state (cosmopolis). They had to be universal so men form any polis could identify with them.
  • In the C13th Aquinas developed NL reasoning. . Prior to this period Christian theology prevailed where it was thought that it didn’t matter what law one obeyed in this short mortal life as long as rulers didn’t force him to commit any evil. Aquinas developed ideas of Aristotle to reconcile the secular authority with those of the Church. He treated the fact that Europeans were Christians as part of man’s purpose. Aquinas saw Christianity as a stage in man’s development that went beyond the development that went beyond the developments open to the Greeks. Man was meant to live in a polis but a Christian one.
  • He says that ‘just as the good life on earth is directed …to life which is promised in heaven… benefits man can procure [here] must be directed to the good of the community.’ Supreme ends must take precedence ‘it follows that a king, though subject to that power and authority must, preside over all human activities, and direct them in virtue of his own power and authority… it is the king’s duty to promote the welfare of the community in such a way that it leads fittingly to the happiness of heaven.’
  • In tackling the problem of diff laws in diff places he distinguished natural law form human law. Former based on reason, understood by reflecting on the nature on man’s and God’s purpose in creating him. Law, according to Aquinas, ‘a rational ordering of things which concern the common good.’ If law didn’t oblige the conscious then it was not law at all. The common good was the need to preserve life, establishing a stable political order.
  • Human law goes beyond the natural law q ‘what am I obliged to do by my conscious’ because it would not restrain ‘evil’ men
  • History of NL up to end of C16th termed ‘conservative’ as theorists were concerned with establishing a basis for the legitimacy of existing legal orders. Theories after C17th termed ‘revolutionary’ because the focus of such writing turned form the issue of how legal orders could have legitimacy, to the limits of legitimacy.
  • Nature was not a universal order implicit in existing legal orders, but as something that operated prior to their creation: a state of nature would operate without a legal order. Q then became on what conditions would persons in such a state of nature agree to surrender their freedom to those who ruled over them? E.g. Rousseau saw sov in the will of the people, which remained with them ‘man is born free, and everywhere he is in chains.’
  • Since WW2 there has been a revival in NL thinking.
  • Fuller offered a procedural version of NLT. His theory has elements of social contract theories, seeing law as a special relationship between the rulers and the ruled. Fuller concentrates on the conditions necessary for one to be capable of obeying law. Conditions inc. the requirement of laws to be published, understandable and prospective. The quality of a legal system is linked to obedience.
  • Finnes– offered NLT not based on Christianity. Rather than seeking to defend the particular practices of any society, he seeks to identify the values that underlie all human activity. Values he identifies are life, knowledge, play, practical reasonableness… Our ability to experience these things gives meaning to our understanding of a common good
  • Dworkin– seeks to demonstrate the inabilities of theories which deny the relevance of moral reasoning to account for the practices of legal officials, most importantly, the judiciary. He seeks to argue that adjudication cannot be separated from ethical reasoning.
  • Such historical background shows that law is a value, and like all values one should strive to achieve it. Law is implicated in the common good ad is available through our use of reason. Reason is the means of knowledge of what serves the common good and what is law, and the test for conformity between law and nature.

Cicero is aware that diff states have different  laws

  • Cicero– ‘true law is right reason, consonant with nature, spread through all people. It is constant and eternal…we cannot be released form this law by the senate or the people…there will not be one law in Rome and another at Athens; but all nations at all times will be bound by this one eternal and unchangeable law.’
  • ‘law is the highest reason, rooted in nature, which commands things that must be done and prohibits the opposite… law is a power of nature, it is the mind and reason of the prudent man, it distinguishes justice and injustice…reason forms the first bond between humans and God…’
  • ‘There is only one justice, which constitutes the bond among humans, and which was established by the one law, which is right reason in commands and prohibitions. The person who does not know it is unjust…we can divide good laws from bad by no other standard  than that of nature…for nature has given us shared conceptions and has so established them in our minds that honourable things are classed with virtue, disgraceful ones wit vice.’
  • ‘the meaning and nature of law…the law was not thought up by human minds; that is it is not some piece of leg; but is something eternal which rules the entire universe through the wisdom of its commands and prohibitions.’
  • ‘the leg that has been written down for nations in diff ways has the name of law as a matter of courtesy than as a fact; they teach that every law that deserves that name so praiseworthy…laws were invented for well being of its citizens. From this it should be understood that those who wrote decrees that were destructive and unjust produced something different to laws…so that it should be clear that in the interpretation of the word ‘law’ itself there is the significance and intention of choosing something just and right.’
  • ‘Law is the distinction b/w just and unjust things, produced in accordance with nature… and first of all things…human laws are constructed which punish the wicked while defending and protecting the good.’
  • Aquinasall that a man is bear a relationship to God. There is a 3 fold order in man. 1st is rule of reason- actions should be commensurate with the guidance of reason. 2nd– rule of divine law should guide all things. 3rd-conduct of man should be regulated to his fellows with whom he has to live.
  • Law is a measure of action that leads us to performing certain actions and restrained from others…the law must have as its proper object the well-being of the whole community. This links to Aristotle’s idea that a man is a political animal fulfilled only by living in a political community. The promulgation of the law requires the action of a whole community or someone who represents it.
  • Def of law: it is nothing else than a rational ordering of things which concern the common good.
  • Everything is measured and regulated by eternal law- all things participate to some degree in the eternal law. This participation in the eternal law by rational creatures is called the natural law.
  • Human reason has to proceed from the precepts of the natural law, these are called human laws.
  • In addition to natural law and human law there is through necessity a divine law to direct human life. This is for 4 reasons:

o        It is by law that man is directed in his actions with respect to his final end. Divine law is needed because man is destined to an end of eternal blessedness and this exceeds what is proportionate to natural human faculties.

o        Uncertainty in human judgment- man should know without any doubt what he is to do and what he is to avoid. Divine law guides this as it is incapable of error.

o        Because laws are capable of being judged. But the judgment of man cannot reach the hidden interior actions of the soul; human law is insufficient to regulate this.

o        Human law can punish nor prohibit all that is evilly done. In order therefore, that no evil should go unforbidden and unpunished it was necessary that there should be a divine law which would prohibit all manner of sin.

  • It is clear that the true object of law is to induce those subjects to it to seek their own virtue. Since virtue is ‘that which makes its possessor good’, follows that the proper effect of law is the welfare of those whom it is promulgated.
  • Tyrannical law is not law at all but rather a perversion of law.
  • In the mind of every ruler there must already exist an ideal of order with respect to what shall be done by those subjects to his rule. The ideal in the mind of the ruler who governs actions of those subject to him has the quality of law.
  • Human law has the quality of law only in so far as it proceeds according to right reason: and in this respect it is clear that it derives from the eternal law. In so far as it deviates from reason it is called an unjust law.
  • As far as the general principles of reason are concerned there is one standard of truth or righteousness for everybody, and that this is equally known by everyone. And from this principle we may deduce as an immediate conclusion that debts must be repaid.
  • 2 ways in which NL may be understood to change:
    • Additions made to it.
    • something subtracted from it
  • The validity of law depends upon its justice. A thing is said to be just if it accords with the rule of reason and the 1st rule of reason is NL. So if a human law is at variance with the NL it is no longer legal.
  • Whatever exists in virtue of some end must be proportionate to that end. The end of law is the common welfare. But the common wellbeing is made up of many elements. It is therefore necessary that the law should take account of these diverse elements.
  • Laws when they are passed should take account of the condition of the men who will be subject to them. Laws enacted by men are either just or unjust. If just, they draw from the eternal law. They are just with respect to their object (directed to the common welfare) or with respect to the author (law which is enacted does not exceed the powers of him who enacts it)
  • Laws may be unjust for 2 reasons:

§         Detrimental to human welfare. Either with respect to their object or with respect to the author or with respect to their form

§         Laws may be unjust through being contrary to divine goodness; such as tyrannical laws or other actions against the divine law.

  • Law has 2 essential characteristics: 1st a rule directive of human contact. 2nd– that of a power to compel. There are 2 reasons why this may not be the case. The 1st is when a person is wholly absolved from such subjection or when a person is subject to a higher law.
  • Law is directed to the common well being and it is for this reason that it has the power and validity of law.
  • Because human law is a dictate of reason by which human actions are regulated there can be 2 causes which justify a changing of human law. 1st– on part of reason- where it would seem natural to proceed by stages. 2nd– on the part of men whose actions are regulated by the law- changes in law may be justified on account of altered circumstances.
  • Change in human law is justified to the extent that it benefits the general welfare but the very fact of change in law is detrimental to public welfare (custom v.imp). should only change human law where the benefits outweigh the harm done
  • Aquinas adopts the idea of self-evident knowledge of good and evil (practical reason) – something can be self-evident either in itself or with reference to us. Aquinas doesn’t claim that moral knowledge is something we learn empirically, by looking at things in nature to see what is ‘good’. He thinks it is like maths principles. Leaned men will understand these principles. Ignorant men will adopt the principles without realizing the conclusions that must follow from them.
  • 1st principle of NL is that good should be done and sought and evil is to be avoided. Aquinas claimed that all men know the difference b/w good and evil. Moral reasoning assumes this opposition. Aquinas was pointing to the difficulties of entirely rejecting ethics. Our speech implies the existence of certain standards. However, ethics vary with diff people.
  • Finnis (applying Aquinas) sees the basic values as self-evidently affirmed in all cultures, he has further basis for claiming that knowledge is a self-evident value: that there is something inconsistent in a person denying the value of knowledge.
  • Finnis– assertion that knowledge is not a good is operationally self-refuting (in saying it you are proving that it is false). One can toy with notion that knowledge is not a good worth pursuing but to assert this is operationally self-refuting.
  • ‘Law’ refers to rules made, in accordance with regulative legal rules, by a determinate and effective authority for a ‘complete’ community, with sanctions in accordance with the rule-guided stipulations of adjudicative institutions, these rules and institutions being directed to reasonably resolving any of the community’s co-ordination problems for the common good of that community.
  • The intention here has been to develop a concept rather than to explain it. He argues that it is ‘a philosophical mistake to declare…that a social order or set of concepts must either be law, or not be law, be legal or not be legal.’ His focal meaning of law allows him to incorporate a range of ideas within it, including those associated with the ‘common good.’
  • Fuller– legal positivism is the direction of legal thought which insists on drawing a sharp distinction b/w the law that is and the law that ought to be. The positivist attitude is associated with a degree of ethical skepticism. NL on the other hand, is the view which denies the possibility of a rigid separation of the is and the ought. If there is a clear distinction then what utility can there be in following the phantom route of NL, which pretends to lead in both directions at once?
  • The answer lies in the fact that nature does not, as positivists assume, present us with the is and the ought in neatly separated parcels.
  • The two are inextricably interwoven and one is influenced by the other. A statute or a decision involves 2 things, a set of words and an objective sought. The objective may or may not have been happily expressed in the words chosen by the legislator or the judge. The objective may be perceived dimly or clearly. By being reinterpreted it becomes something that it was not originally.
  • – ‘a law which a man cannot obey is void and no law’- Vaughan CJ
  • Fuller-law is a purposeful enterprise, dependent for its success on the energy, insight, intelligence and conscientiousness of those who conduct it. In opposition to this view it is insisted that law must be treated as a manifested fact of social authority or power, to be studied for what it is and does, not for what it is trying to do or become.
  • Views that ascribe to some purpose run the risk of ending up talking about the Purpose of the States. Even those who participate in the creation of institutions may have very different views of the purpose or function of the institutions they bring into being.
  • If law is simply a manifested fact of authority or social power then though we can still talk about the substantive justice or injustice of particular enactments, we can no longer talk about the degree to which a legal system as a whole achieves the ideal of legality. We can talk about contradictions in the law, but we have no standard for defining what a contradiction is. We may moan about retrospective laws but we are unable to explain what is wrong with a system wholly retrospective. With this view there is a determination with no question of degree; one cannot say it is ‘successful’ or ‘unsuccessful’.
  • A falsification of reality exists because a formal authority is itself usually dependent on human effort that is not required by any law or command.
  • D’Entreves– the slightest glimmer from a positivist that some values are inherent to law’s content, structure, reasoning is enough to prove the importance of the Natural Law, not only historically but also in the present day.
  • The success of legal positivism as a theory is bound up with a contingent fact, the fact that the Modern State has assumed a monopoly of law and the making of law. This concept runs into difficulties when it tried to explain the juridical character of a law that is not from the State (int law). Legal Positivism as an ideology ends up as a simple inversion of natural law, if not as a theory of NL in its own right. To affirm the moral duty of obeying laws is exactly what NLT have always proposed. Only difference between the 2 ideologies is the way in which they present the obligation of obedience. Those who oppose NL to positive law see the obedience as conditioned and limited, while those who conceive positive law as an end in itself find no such limits
  • Modern criticism of NL (Hart) come back to ‘descriptive’ and ‘prescriptive’ propositions, b/w judgment of fact and value. In its prescriptive acceptation the idea if NL is not necessarily linked to belief in personal God who has ‘ordered’ the laws of nature. The very fact that its hold is independent of both divine and human authority ought to lead us to enquire if in spite of everything this idea does not contribute to a better understanding of both law and morality. Hart speaks of ‘universally recognised principles of conduct which have a basis in elementary truths concerning human beings, their natural environments, and aims’. These principles may be considered the minimum content of Natural Law.
  • Hart therefore proposes a modernized version of Hobbes and Hume. The relationship between the natural facts and the ‘content’ of legal and moral regulations is a ‘moral’ one. Hart tries to bridge the gap b/w fact and value, to transform the natural law from the descriptive proposition to a normative one.
  • Hart says that it is the specific content provided by NL that assures voluntary obedience to positive law. We have voluntary obedience because there is an ‘accepted morality’ (Hart) in society.
  • Hart seems to admit that positive law is closely linked to a specific content indicated by NL but he also maintains  ‘that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality’
  • For Hart, law is a system of rules which are in fact observed in a certain place and at a certain time. It supposes a ‘rule of recognition’. His notion of validity implies the formal criterion of the legal qualification or one rule by another and the criterion of fact, of the existence of an ultimate rule of recognition. Therefore the validity of a particular rule cannot depend in any way on its content or a criterion exterior to the system.
  • A system in which obedience begins to bend is a system in which the criterion of validity has become blurred.