Describe the concept of “Natural Law”

Natural law, or the law of nature (Latin: lex naturalis), is a system of law that is purportedly determined by nature, and thus universal.[1] Classically, natural law refers to the use of reason to analyze human nature — both social and personal — and deduce binding rules of moral behavior. Natural law is contrasted with the positive law (meaning “man-made law”, not “good law”; cf. posit) of a given political community, society, or nation-state, and thus serves as a standard by which to critique said positive law.[2] According to natural law theory, which holds that morality is a function of human nature and reason can discover valid moral principles by looking at the nature of humanity in society, the content of positive law cannot be known without some reference to natural law (or something like it). Used in this way, natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. Some use natural law synonymously with natural justice or natural right.

Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation.[3] Natural law theories have exercised a profound influence on the development of English common law,[4] and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence and the Constitution of the United States, as well as in the Declaration of the Rights of Man and of the Citizen. Declarationism states that the founding of the United States is based on Natural law.

Rule of Law

The rule of law is a term that is often used but difficult to define. A frequently heard saying is that the rule of law means the government of law, not men. But what is meant by “a government of law, not men”? Aren’t laws made by men and women in their roles as legislators? Don’t men and women enforce the law as police officers or interpret the law as judges? And don’t all of us choose to follow, or not to follow, the law as we go about our daily lives? How does the rule of law exist independently from the people who make it, interpret it, and live it?

The easiest answer to these questions is that the rule of law cannot ever be entirely separate from the people who make up our government and our society[5]. The rule of law is more of an ideal that we strive to achieve, but sometimes fail to live up to.

The idea of the rule of law has been around for a long time. Many societies, including our own, have developed institutions and procedures to try to make the rule of law a reality. These institutions and procedures have contributed to the definition of what makes up the rule of law and what is necessary to achieve it.

 

Making up the rule of law

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

—Article 39, Magna Carta (1215)

In 1215, King John of England signed the Magna Carta[6] (or Great Charter). A group of barons, powerful noblemen who supported the king in exchange for estates of land, demanded that the king sign the charter to recognize their rights. Article 39 of the Magna Carta was written to ensure that the life, liberty, or property of free subjects of the king could not be arbitrarily taken away. Instead, the lawful judgment of the subject’s peers or the law of the land had to be followed. So what does this ancient document have to do with the rule of law? Quite a lot. It recognizes that a person’s fate should not be in the hands of a single individual—here, the king. It demands that a judgment against a person be made in accordance with the law. Magna Carta planted the seeds for the concept of due process as it developed first in England, and then in the United States. Due process means that everyone is entitled to a fair and impartial hearing to determine their legal rights.

If men were angels, no government would be necessary. In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

— James Madison, Federalist Paper No. 51 (1788)

James Madison’s quote from the Federalist Papers gets at the heart of the problem that even a government of law is ultimately “administered by men over men.”[7] The framers of the U.S. Constitution addressed this problem by dividing power among the different branches of government (legislative, executive, and judicial).[8] This framework for government, known as the separation of powers, ensures that no one person is able to gain absolute power and stand above the law. Each branch of our government has some level of control or oversight over the actions of the other branches. The rule of law does not depend upon a U.S.-style separation of powers. In a parliamentary system, for example, the powers of the executive and legislative branches are combined; procedures such as “no confidence” votes and regularly scheduled elections serve as a check on the party that controls the parliament. The key point is that every form of government has to have some system to ensure that no one in the government has so much power that they can act above the law.

 

 

There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.

—U.S. Supreme Court Justice Felix Frankfurter, United States v. United Mine Workers (1947)

Independence of Judiciary

Judicial independence means that judges are independent from political pressures and influences when they make their decisions.[9] An independent judiciary is essential to maintaining the rule of law. Judges should not be pressured by a political party, a private interest, or popular opinion when they are called upon to determine what the law requires. Keeping the judiciary independent of these influences ensures that everyone has a fair chance to make their case in court and that judges will be impartial in making their decisions. Judges also must explain their decisions in public written opinions, and their decisions can be appealed to a higher court for review. These elements of judicial decision making ensure that judges remain accountable to the rule of law.

An “internal coercion” model is one possible explanation of a control or volitional excuse based on “disorders of desire.”[10] The model employs a moralized, common-sense approach that is analogous to the criminal law excuse of duress and that requires no implausible, unverifiable empirical assumptions about how the mind works.[11] Thinking about duress is fundamental to this approach. Consequently, it criteria will be considered before turning to whether the model can be applied to addictions.

Duress obtains if the defendant is threatened with the use of deadly force or grievous bodily harm against himself or another unless the defendant commits an equally or more serious crime, and a person of reasonable firmness would have been “unable to resist” the threat.[12] In other words, an agent faced with a particularly “hard choice”—commit a crime or be killed or grievously injured—is legally excused if the choice is too hard to expect the agent to buck up and obey the law. The defense, however, is not based on empirical assumptions about the subjective capacity of an individual agent to resist threats; it is moralized and made objective.[13] For example, the defense is not available to a defendant allegedly “unable” to resist if the threats were less than death or grievous bodily harm or if a person of reasonable firmness would have been able to resist.

The moralized criterion of the person of reasonable firmness necessary to support the excuse of duress appears to risk unfairness. Suppose a person would find it extraordinarily difficult to resist threats that a person of reasonable firmness could resist. Under such conditions, criminal penalties would be retributively unjust because a person does not deserve punishment for conduct that is so difficult for that agent to avoid. Moreover, specific deterrence is bootless in such cases.[14] A purely consequential view might justify punishment to buck up the marginal people, but only at the cost of injustice to those unable to resist. Because fault is a necessary condition for blame and punishment in our system, denying the defense would be unjust. Those who take this position should argue for a purely subjective view of the duress excuse, which would require difficult empirical assessment of the defendant’s capacity to resist. This standard would be a nightmare to adjudicate, but worth the effort if it were necessary to avoid injustice[15].

There is a good argument, however, that the moralized, objective standard that uses the person of reasonable firmness as the criterion is not unfair. If a person is threatened with death, for example, the defense of duress should be potentially available unless the balance of evils is so remarkably negative that every person would be expected to resist. In all other cases, the question would at least “go to the jury.” Thus, there will be few cases involving sufficiently serious threats in which the person incapable of resisting would lose the potential defense. The person genuinely incapable—if any there be—of resisting even when the threats are relatively mild—say, kill or be touched—will almost certainly be a person with irrational fears that will qualify for some type of irrationality defense. Duress might not obtain, but exculpation will be available on other grounds.

Making of Law by Judges

Although for the traditionally-minded the question “do judges make law?” could seem irrelevant, its application to the bioethics field probably deserves a more considered response, for two reasons.

Firstly, at least in countries that do not adhere strictly to the stare decisis doctrine, judicial activity and bioethics both refer to a flexible system of norms.

Secondly, judicial doctrine and bioethics have another feature in common, in that they are factual and practical systems applying rules to specific situations on a case by case basis.

The judicial process has therefore often been used in the brief history of bioethics and law for securing rapid answers to judicial issues arising from the bioethics debate.[16]

Taking this definition of and approach to law making, France probably offers a good example to quote in discussion since the courts appear to have been extremely active in fields such as reproductive technologies, embryo protection, and medical malpractice.[17] But great activity in the courts does not mean that the law is made exclusively by the judges, because of the “natural” limits on the role of the judge and it should be noted that the French … legislation is also remarkably well developed. Consequently, we believe that the real question concerning bioethics and law is not “do judges make law?”, but rather “do judges make better law than parliament?”

In reply to those who detect judicial arrogance in such an approach I would argue that this is not so. It only raises a further key question: who is best qualified to decide on matters relating to individual rights and collective choices? Asking whether the courts offer better safeguards for fundamental freedoms and social values is a way of warning members of the community of the risks of promoting absolutism, whether legal absolutism or scientific absolutism.

By providing the opportunity for a public and balanced debate on bioethics issues, it is to be hoped that the judicial system will serve as a focus for broader citizen participation in social choices.[18] In applying legal rules, based on common values, to particular cases, judges are supposed to respect both the collective and the individual interests. One interesting and unique example of a major bioethics controversy that the machinery of justice brought to the forefront of public debate was the blood transfusion scandal.

Faced by a lack of information on and explanation of what really happened when blood was contaminated by the AIDS virus, the victims and their families had no other way of drawing public attention to their plight than taking the matter before the courts.[19] What is particularly interesting about the courts’ involvement is that they forced the government to discuss in the judicial arena what it refused to refused to talk about in the political domain.

I now wish to consider the judicial process as a focus for participation in drawing up bio-law. It is often said that the difference between ethics and morals is that ethics are persuasive and morals authoritative. Bioethics is therefore characterized by pluralism and free and open discussion. Unlike the governmental and parliamentary approaches,[20] which in France have left very little scope for pluralism in the bioethics debate, the judicial process has no option but to listen to different views. And contrary to what usually happens in ethics committees, the organization of court hearings actually highlights the differences between these views. While their inability to tackle bioethics issues has encouraged French politicians to adopt a common political approach, the courts have had to deal with opposing interests. By proclaiming that “we are all responsible but not guilty”,[21] the French Minister for Social Affairs created a public perception that the government was in fact refusing to examine its own responsibility.

In a 1993 decision, the supreme administrative court ruled that, through its lack of administrative and regulatory control of the blood transfusion service, the state was responsible for the contamination that had occurred. This opened up the path seven years later, after complex procedural reforms, to the criminal trial of the Prime Minister, the Minister of Social Welfare and the Minister of Health who were in office at the time of the contamination.[22]

My reason for quoting this case as an example of the role of the judiciary in promoting public debate on taboo issues is two-fold: it shows what the judicial system can do and the associated constraints and disadvantages. It is clear that it was only thanks to the judicial process that there was a genuine public and adversarial debate on the causes of the blood transfusion scandal – a debate that benefited from the results of the police investigations. It is also clear that this approach was chosen as an alternative to what should have occurred but did not: a political explanation by the government in parliament followed by a vote of confidence. Bringing the most senior government figures to trial provided an opportunity to reveal the truth and inform the public, but it also contributed to the decline of our democracy.

In some respects, the experience of ethics committees, which is deeply rooted in procedural rules designed to take account of a range of views from a variety of disciplines, also offers a challenge to our democratic institutions[23] if the latter fail to exercise their role.

A second advantage of the machinery of the courts is that it comes up with solutions that can be adapted to the social context, whereas too much detailed regulation would rapidly become obsolete and could also impose rigid controls on scientific applications and individual autonomy. Family relations are now largely governed by individual social choice – whether or not to marry or to found a one parent family. At least in France, the legal provisions relating to relationship by descent give the courts a considerable margin of discretion[24] in interpreting the relevant sections of the Civil Code. The implication is that the new reproductive technologies and their consequences for family law should be able to draw on a deep well of judicial rulings.

Unfortunately, the role of the courts has not brought the expected results.[25] Judges have lacked legal inventiveness. For example, only one decision has ruled that a husband who consented to his wife’s insemination with the sperm of an anonymous donor could not subsequently disavow to the resulting child.

 Conclusion

 Many of the laws of every legal system are concerned with the institution, or presuppose the existence, of rights, and among them there are certain laws, which are not norms. In this section a few remarks have made on the nature of laws instituting rights and on the role of many laws in the institution of rights. No classification of, or distinctions between, various types of rights have attempted, and the remark has confined to those features common to laws concerning any type of rights. It should be emphasized that this section is not concerned with the analysis of the concept of a right, but with the analysis of laws instituting fights. Such an analysis is a precondition for a definition of ‘a legal right’, and some points concerning a few suggested definitions. Laws instituting rights fall into three categories: they are either investitive laws, or divestitive laws, or constitutive laws. Investitive laws specify the ways in which rights can be acquired. Divestitive laws determine the ways in which rights can be disposed of, Constitutive laws specify the consequences of being a right-holder. It can be said that all the investitive, divestitive, and constitutive laws concerning one legal right, all the laws instituting one legal right in one legal system, define that right in that legal system. Thus we can find that many laws are made by laws, or produced by laws. But it is not necessary that all laws have to be produced or made by laws. It can be any situation, judicial point of view or any thing, but not necessarily an existing law.

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 Constitution of the United States of America, Art II, s 2.

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 Hossain, Z. The Constitution and Judicial independence, The Daily Star, November 21,                2004

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 Michael, L. Judicial Appointments – Procedure and Criteria (Discussion Paper, Attorney                General’s Department, Canberra, 1993). (p 22).

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