The theory of the nature and purposes of law. In its most abstract it concerns law in general, but it may also be applied to the study of the principles and aims of specific systems of law, hence ‘Roman jurisprudence’, ‘Chinese jurisprudence’ etc. The fundamental issue of general jurisprudence is whether law is simply the system created by human customary practice and legislation: ‘positive law’; or whether there is beyond and above this a standard of legal justice that is not of human making: natural law. This was debated in early Greek philosophy and discussed in Roman jurisprudence in which the case for natural law was strongly argued for by Cicero. This Ciceronian view greatly influenced medieval, renaissance and modern thinkers through to the framers of the US Constitution but in the past two centuries there has been a strong movement in favour of the idea that all law is a matter of convention.
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— There is a sense in which twentieth-century legal philosophy began on January 8, 1897. On that day, . . . .
— The Path of the Law Oliver Wendell Holmes, Jr. 10 Harvard Law Review 457 (1897) W HEN we study law we are not studying a mystery but a well- known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gath- ered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea- coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions 1 Path of the Law 2 of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights and du- ties with which jurisprudence busies itself again are nothing but prophe- cies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that the- ory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right. The number of our predictions when generalized and reduced to a sys- tem is not unmanageably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time. It is a great mis- take to be frightened by the ever-increasing number of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were burned. The use of the earlier reports is mainly historical, a use about which I shall have something to say before I have finished. I wish, if I can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the study, I wish to point out an ideal which as yet our law has not attained. The first thing for a businesslike understanding of the matter is to un- derstand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external de- posit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good Path of the Law 3 citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and under- standing the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things. I do not say that there is not a wider point of view from which the dis- tinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of the first importance for the object which we are here to consider—a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. I have just shown the practical reason for saying so. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the bound- ary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fal- lacy. For instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached. Yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most en- lightened opinion of the time, or which at all events pass the limit of inter- ference, as many consciences would draw it. Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law. No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the ab- sence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposi- tion that the law, if not a part of morality, is limited by it. But this limit of power is not coextensive with any system of morals. For the most part it falls far within the lines of any such system, and in some cases may extend Path of the Law beyond them, for reasons drawn from the habits of a particular people at a particular time. I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced. No one will deny that wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones. The confusion with which I am dealing besets confessedly legal concep- tions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. Take again a notion which as popularly understood is the widest con- ception which the law contains—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. But what does it mean to a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. But from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is proven by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax. On the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is un- der compulsion or free. Leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question? In both cases the party taking another man's property has to pay its fair value as assessed by a jury, and no more. What significance is there in calling one taking right and another wrong from the point of view of the law? It does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to Path of the Law 5 allow it. If it matters at all, still speaking from the bad man's point of view, it must be because in one case and not in the other some further disadvan- tages, or at least some further consequences, are attached to the act by law. The only other disadvantages thus attached to it which I ever have been able to think of are to be found in two somewhat insignificant legal doc- trines, both of which might be abolished without much disturbance. One is, that a contract to do a prohibited act is unlawful, and the other, that, if one of two or more joint wrongdoers has to pay all the damages, he can- not recover contribution from his fellows. And that I believe is all. You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law. Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at com- mon law means a prediction that you must pay damages if you do not keep it-and nothing else. If you commit a tort, you are liable to pay a compen- satory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many others cases, I am content to abide with him. In Bromage v. Genning,¹ a prohibition was sought in the Kings' Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. Sergeant Harra for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. This goes further than we should go now, but it shows what I venture to say has been the common law point of view from the beginning, although Mr. Harriman, in his very able little book upon Contracts has been misled, as I humbly think, to a different conclu- sion. I have spoken only of the common law, because there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense. These are the relatively few in which equity will grant an injunction, and will enforce it by putting the ¹Rolle Rep 368.
— Is the language of rights necessary or at least useful for jurisprudence? Professor Robert George argues that although it is useful, the concept of rights is not sufficient to explain all moral duties or obligations of justice. The philosophical basis of jurisprudence needs to be traced farther back than rights to the fundamental human goods that provide the basic motivations for human action. Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. #law #no86 #jurisprudence Subscribe to the series’ playlist: https://www.youtube.com/playlist?list=PLWwcngsYgoUVycr2Nke5wFZB9jyeaaEjv
— The Holy Father Francis received in audience the members of the Union of Italian Catholic Jurists (UGCI) on the occasion of the 70th National Study Congress organized by the UGCI on the theme “The last. Legal protection of the weak” [Augustinianum Patristic Institute and the Libera Università Maria Santissima Assunta (LUMSA), 9-11 December 2021]
— Why should a modern person bother learning about ancient or medieval jurisprudence? Professor Robert George explores the timeless questions about law that were pondered by great thinkers across different times and cultures. The questions are still relevant today for those who want to understand the nature of law and its implications. Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Subscribe to the series’ playlist: https://www.youtube.com/playlist?list=PLWwcngsYgoUVycr2Nke5wFZB9jyeaaEjv #law #ancient #ancientlaw #jurisprudence #no86 #naturallaw
— This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies.
— Stanford Encyclopedia of Philosophy Menu Browse Table of Contents What's New Random Entry Chronological Archives About Editorial Information About the SEP Editorial Board How to Cite the SEP Special Characters Advanced Tools Contact Support SEP Support the SEP PDFs for SEP Friends Make a Donation SEPIA for Libraries Entry Navigation Entry Contents Bibliography Academic Tools Friends PDF Preview Author and Citation Info Back to Top Natural Law Theories First published Mon Feb 5, 2007; substantive revision Wed Jun 3, 2020 This entry considers natural law theories only as theories of law. That is not to say that legal theory can be adequately identified and pursued independently of moral and political theory. Nor is it to deny that there are worthwhile natural law theories much more concerned with foundational issues in ethics and political theory than with law or legal theory. A sample of such wider and more foundational theories is the entry Aquinas’ moral, political, and legal philosophy. In the present entry, “natural law theory” is to be taken as shorthand for natural law theories just insofar as they bear on law and are theories of or about it. This focus has the important incidental effect that many historically important differences between natural law theorists can be omitted, differences which pertain more to the foundations of normativity than to the nature and functions (“the concept”) of positive law. Legal theorists who present or understand their theories as “positivist”, or as instances of “legal positivism”, take their theories to be opposed to, or at least clearly distinct from, natural law theory. Natural law theorists, on the other hand, did not conceive their theories in opposition to, or even as distinct from, legal positivism (contra Soper 1992 at 2395). The term “positive law” was put into wide philosophical circulation first by Aquinas, and natural law theories of his kind share, or at least make no effort to deny, many or virtually all “positivist” theses—except of course the bare thesis that natural law theories are mistaken, or the thesis that a norm is the content of an act of will. Natural law theory accepts that law can be considered and spoken of both as a sheer social fact of power and practice, and as a set of reasons for action that can be and often are sound as reasons and therefore normative for reasonable people addressed by them. This dual character of positive law is presupposed by the well-known slogan “Unjust laws are not laws.” Properly understood, that slogan indicates why—unless based upon some skeptical denial that there are any sound reasons for action (a denial which can be set aside because defending it is self-refuting)—positivist opposition to natural law theories is pointless, that is redundant: what positivists characteristically see as realities to be affirmed are already affirmed by natural law theory, and what they characteristically see as illusions to be dispelled are no part of natural law theory. But because legal theories conceived of by their authors as positivist are, by and large, dominant in the milieux of those likely to be reading this entry, it seems appropriate to refer to those theories along the way, in the hope of overcoming misunderstandings that (while stimulating certain clarifications and improvements of natural law theorizing) have generated some needless debate. The point made in the preceding paragraph is made in another way by Orrego (Orrego 2007). When the accounts of adjudication and judicial reasoning proposed by contemporary mainstream legal theories are added to those theories’ accounts of (the concept of) law, it becomes clear that, at the level of propositions (as distinct from names, words and formulations), those theories share (though not always without self-contradiction) the principal theses about law which are proposed by classic natural law theorists such as Aquinas: (i) that law establishes reasons for action, (ii) that its rules can and presumptively (defeasibly) do create moral obligations that did not as such exist prior to the positing of the rules, (iii) that that kind of legal-moral obligation is defeated by a posited rule’s serious immorality (injustice), and (iv) that judicial and other paradigmatically legal deliberation, reasoning and judgment includes, concurrently, both natural (moral) law and (purely) positive law. Orrego’s point seems to be confirmed by, e.g., the adjacent entry on Legal Positivism (Green and Adams 2019). Contemporary “positivist” theories are, it seems, natural law theories, distinguished from the main body of natural law theory (a) by their denial that the theory of law (as distinct from the theory or theories of adjudication, judicial duty, citizens’ allegiance, etc.) necessarily or most appropriately tackles the related matters just listed, and accordingly (b) by the incompleteness of their theories of law, that is, the absence from them (and usually, though not always, from their accounts of those related matters) of systematic critical attention to the foundations of the moral and other normative claims that they make or presuppose. In short: a natural law theory of (the nature of) law seeks both to give an account of the facticity of law and to answer questions that remain central to understanding law. As listed by Green 2019 (having observed that “No legal philosopher can be only a legal positivist”), these further questions (which “legal positivism does not aspire to answer”) are: What kinds of things could possibly count as the merits of law? What role should law play in adjudication? What claim has law on our obedience? What laws should we have? And should we have law at all? All these questions, though organized and articulated a little differently, are under consideration in the present entry. 1. Enabling positivity: social facts made reasons for action 1.1 Basic reasons for action and the need for governmental authority 1.2 Political authority as remedy for anarchy, injustice and impoverishment 1.3 Rule of law as remedy for the dangers in having rulers 1.4 Ius gentium—ius cogens—mala in se—human rights: legal rules and rights posited because morally necessary parts of any legal system 1.5 “Purely positive law”: determinationes and their legal-moral authority for citizens and judges (facts made reasons for action) 2. Human persons are not law’s creatures but its proper point 3. Legal principles to remedy defective positive law 3.1 Adjudicating between exclusive and inclusive legal positivism 3.2 Natural law and (purely) positive law as concurrent dimensions of legal reasoning 3.3 Implications of the rule-of-law need for positivity 4. “Lex iniusta non est lex”? Do seriously unjust laws bind? Legally? 5. Can general theories of law be value-free? moral-value-free? 6. Other elements of natural law theory 6.1 Intention in action and utterance 6.2 Responsibility and punishment 6.3 Each legal system is of and for a particular political community Bibliography Academic Tools Other Internet Resources Related Entries 1. Enabling positivity: social facts made reasons for action The fulcrum and central question of natural law theories of law is: How and why can law, and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it? How can a rule’s, a judgment’s, or an institution’s legal (“formal,” “systemic”) validity, or its facticity or efficacy as a social phenomenon (e.g., of official practice), make it authoritative in its subject’s deliberations? The sense and force of these questions, and the main features of the kind of answer given by natural law theories, can be given a preliminary indication. On the one hand, natural law theory holds that law’s “source-based character”—its dependence upon social facts such as legislation, custom or judicially established precedents—is a fundamental and primary element in “law’s capacity to advance the common good, to secure human rights, or to govern with integrity” (cf. Green and Adams 2019). On the other hand (cf. Green 2003), the question “whether law is of its very nature morally problematic” has from the outset been the subject of consideration by leaders of the tradition. (The first issue that Aquinas takes up about human law in his set-piece discussion of law, Summa Theologiae, I-II, q. 95 a. 1, is whether human law [positive law] is beneficial—might we not do better with exhortations and warnings, or with judges appointed simply to “do justice”, or with wise leaders ruling as they see fit? And see I.3 below.) Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so, both in settling the content of its rules and principles and in the procedures and institutions by which they make and administer it. Natural law theories all understand law as a remedy against the great evils of, on the one side anarchy (lawlessness), and on the other side tyranny. And one of tyranny’s characteristic forms is the co-optation of law to deploy it as a mask for fundamentally lawless decisions cloaked in the forms of law and legality. 1.1 Basic reasons for action and the need for governmental authority If one thinks perceptively and carefully about what to pursue (or shun) and do (or forbear from), one can readily understand and assent to practical propositions such as that life and health, knowledge, and harmony with other people are desirable for oneself and anyone else. The intrinsic desirability of such states of affairs as one’s flourishing in life and health, in knowledge and in friendly relations with others, is articulated in foundational, underived principles of practical reasoning (reasoning towards choice and action). Such first principles of practical reasoning direct one to actions and dispositions and arrangements that promote such intelligible goods, and that directiveness or normativity is expressed by “I should…” or “I ought…” in senses which although truly normative are only incipiently moral. A natural law moral theory will give an account of the way in which first principles of practical reason take on a moral force by being considered, not one by one but in their united (“integral”) directiveness. That integral directiveness is given specific (albeit highly general) articulation in principles such as the injunction to love one’s neighbor as oneself; or the Golden Rule of doing for others what you would want them to do for you and not doing to others what you would not have them do to you; or the “categorical imperatives” to respect, and treat as intrinsically valuable, humanity (the basic aspects of human flourishing) in oneself and in others, so that each of one’s communities is treated as a kingdom of ends—of persons each ends in themselves. Such high-level but far from contentless moral principles can be given further specificity in two ways (1) by identifying what, given some broadly stable features of human reality, they entail (see 1.2–4), and (2) by a rational but more or less non-deductive selection among alternative specifications, a selection named by Aquinas determinatio (plural, determinationes) (see 1.5). Political communities are a kind of institution whose rational status as a normally desirable and obligatory objective of and context for collaborative action (and forbearance) can easily be seen to be entailed by the foundational practical and moral principles. In such communities, the normal means for making the needed determinationes is the institution of governmental authority acting in the first instance through legislation and other forms of law-making, i.e., acting as a social-fact source of positive (posited) law. The political-theoretical part of natural law theory explains and elaborates the grounds and proper forms of governmental authority. It explains the similarities and differences between the practical authority of rulers (including democratic electors acting as selectors of representatives or as plebiscitary decision-makers) and the theoretical authority of experts and persons of sound judgment. It shows the grounds for instituting and accepting practical authority as an almost invariably necessary means for preventing forms of harm and neglect which, because contrary to the high-level moral principles (at least as they bear on relationships between persons), involve injustice. Political theory subsumes, as one of its branches, legal theory. As legal theory, political theory explains the normal desirability that governmental authority in political communities be exercised within the framework of (in the classic slogan) a “rule of law and not of men” (1.3). 1.1.1 Why “natural” law? Naturalistic fallacy? What does the mainstream of natural law theory intend by using the word “natural” in that name for the theory? The shortest accurate answer is “of reason,” as in “the law of reason” or “the requirements of reason.” Aquinas is particularly clear and explicit that in this context, “natural” is predicated of something (say, a law, or a virtue) only when and because that of which it is predicated is in line with reason, practical reason, or practical reason’s requirements: see Finnis 1980, 35–6. Moreover, he employs, through all his works, a methodological axiom: X’s nature is understood by understanding X’s capacities, which are understood by understanding their act[uation]s, which are understood by understanding their objects. But the objects of chosen acts are the intelligible intrinsic goods (aspects of human flourishing) which we are directed to by practical reason’s first principles. So the equation, in this context, of “natural” and “rational” and its cognates is no mere confusion, but grounded in a sophisticated distinction between ontology and epistemology: in the order of being, what is good and reasonable for us is a resultant of what is foundational, our given nature; but in the order of coming to know, our knowledge of our nature is in significant part a resultant of our understanding of what kinds of possible objects of choice are good. Though the core of classic and mainstream natural law theory is thus untainted by any “naturalistic fallacy” (Finnis 2018, 2.4.2), non-practical knowledge of facts counts, in that theory, in various ways. Knowledge of the factual possibility of (say) acquiring knowledge, or of losing or saving life, is a datum (not really a premise) for the understanding that such a possibility is also an opportunity—that actualizing the possibility would be good for oneself and others. Other kinds of relevant facts include the facts about certain human radical capacities and their absence in other animals—these facts are the data for the insight into the sense and bounds of the class (persons, human beings) of “others” in “good for oneself and others.” Or again, facts about the limited supply of resources and the limited strength of human will (the need for incentives, etc.) make (1.5) appropriation of resources to particular owners a normal requirement of justice to non-owners and owners alike. 1.2 Political authority as remedy for anarchy, injustice and impoverishment The texts that are earliest (e.g., the Platonic or pseudo-Platonic Minos: Lewis 2006) and most foundational (e.g., Plato’s Gorgias, Republic and Laws, and Aristotle’s Politics) in the tradition of natural law theory remind their readers of the evident evils of anarchy: a condition of things in which no person or body of persons efficaciously claims or is accepted widely as having authority to restrict the use of violence, theft and fraud, and in which any conventional norms of conduct are made hollow by irresolvable disputes about their content and/or their application. In such a state of affairs, the more strong, cunning and ruthless prey on the less, education of children (which calls for resources outside the family) is difficult to accomplish, and economic activity remains stunted by the insecurity of holdings and the unreliability of undertakings. There is evident need for persons who will articulate and enforce standards of conduct which will tend to promote the common good of bodily security, stable access to resources, cooperation in economic and educational activities, and rectification (by punishment, compensation and restitution) of at least the grosser inter-personal injuries of commission and neglect. To articulate that need is to state the reasons for instituting and supporting political authority, notably state government and law, on condition that these institutions carry on their legislative, executive and judicial activities substantially for the common good of the inhabitants of the relevant territory, rather than in the interests of a segment of the population unfairly indifferent or hostile to the interests and wellbeing of other segments. 1.3 Rule of law as remedy for the dangers in having rulers Aristotle (Politics III.15.1286a–IV 4 1292a) vigorously debates the question whether political authority is better exercised through a “rule [primacy, supremacy] of law” or “a rule of men,” say of one best person, or a democratic assembly, or indeed (Rhetoric I 1 1354a32–b16) a court. He takes his arguments to suggest the answer that in almost all societies, on almost all occasions and issues, it is preferable that government be by or in accordance with law, since (i) laws are products of reason(s) not passion(s), (ii) the sovereignty of a ruler or assembly tends to tyranny (i.e., rule in interests of a section, not common good), (iii) equality demands that each mature person have some share in governing, and (iv) rotation of offices and office-holders is desirable and can hardly be managed without legal regulation. So for Aristotle, the central case of practical authority is government of a polis by law and legally regulated rulers. Thomas Aquinas’ account of human positive law treats the central case of government as the self-government of a free people by the rulers and institutions which that people has appointed for that purpose, and the central case of law is the co-ordination of willing subjects by law which, by its public character (promulgation), clarity, generality, stability and practicability, treats those subjects as partners in public reason (Summa Theologiae I-II q. 90 a. 4c; q. 95 a. 3c; q. 96 a. 1; q. 97 a. 2). For he defines law as universal (in the logician’s sense of “universal”) practical propositions conceived in the reason of the ruler(s) and communicated to the reason of the ruled so that the latter will treat those propositions, at least presumptively, as reasons for action—reasons as decisive for each of them as if each had conceived and adopted them by personal judgment and choice. Lon Fuller 1969, acknowledging Aquinas’ lead in this discussion of formal and procedural aspects of legal system, pulls together Aquinas’ scattered and fragmentary remarks about them into an orderly list of eight elements of the rule of law, that is of la primauté du droit, the legal system of a Rechtsstaat. He shows that these hang together as a set of desiderata (or requirements) because they are implications or specifications of the aspiration and duty to treat people as presumptively entitled—as a matter of fairness and justice—to be ruled as free persons, fundamentally the equals of their rulers, not puppets or pawns to be managed and kept in order by manipulation, uncertainty, fear, etc. The normal result of such fairness in the procedures of making and maintaining the law will be to strengthen the law’s efficacy, too. Unfortunately, the surface of Fuller’s text gives more prominence to effectiveness than to fairness, and many critics (e.g., Hart, Dworkin), overlooking the moral connotations of Fuller’s allusions to reciprocity between rulers and ruled, thought his book’s title, The Morality of Law, a misnomer. This thesis has been elaborated more carefully and on a different basis by Raz 1979 and Kramer 2004a and 2004b: although the rule of law (and compliance with it) can be morally important and even a moral virtue (because normally necessary for fully just government in a just society, and especially for alleviating dangers that arise from the existence of political authority, and of law itself), it is nonetheless in itself morally neutral since (in states which employ the forms of law) it will normally be needed even by deeply unjust rulers for advancing their immoral purposes. It is like a sharp knife, whose sharpness makes it apt for life-saving surgery but equally for stealthy callous murders (Raz 1979, 224–6). Finnis 1980 (273–4) and Simmonds 2004, 2005, 2006, 2007 have challenged the quasi-empirical claim that even vicious tyrants need or find it apt, for the efficacy of their domination, to comply with the requirements of the rule of law. The eighth of Fuller’s elements of the rule of law, viz. adherence by the rulers to their own rules in their conduct of government, is especially obstructive, rather than supportive, of a tyranny’s purposes. But the focus of Fuller’s concern, and the most fruitful locus of debate, is not so much on historical or sociological phenomena or causalities as on the “internal,” practical reasons at stake. If the rulers somewhere do not respect the rights and interests of some of their subjects in relation to issues of substance (life, bodily security, freedom, property, and so forth), why should the rulers—what reason have they to—respect their subjects’ rights or interests in the matters of procedure involved in the rule of law (giving them fair notice of what is expected of them, and adhering as rulers to the promulgated law when assessing these subjects’ conduct and in other governmental dealings with those subjects)? A more or less inconsistent willingness of rulers to tie their own hands by scrupulous adherence to procedural justice while yet being substantively unjust, is of course psychologically possible. But Fuller’s primary concern, like that of the wider tradition of natural law theory, is with rationality and the specific implication of fully coherent reasonableness: morally reasonable judgment and choice. 1.4 Ius gentium—ius cogens—mala in se—human rights: legal rules and rights posited because morally necessary parts of any legal system Fuller offered a merely procedural natural law theory, though he did not deny that a substantive natural law theory is possible and appropriate. And indeed there is no sufficient reason to follow him in restricting the range of practical-theoretical reflection on what is needed for a political society worthy of the self-restraints and acceptance of responsibilities that the law requires of those to whom it applies. For it is clear that the procedures and institutions of law are in the service of substantive purposes: the restriction of violence, theft and fraud, the recovery of things misappropriated from their lawful owners or possessors, and of losses wrongfully imposed, protection of intangible goods such as reputation against unwarranted defamation, and of the immature, the mentally disabled and other vulnerable people against sexual or other exploitation, and so forth. That portion of our positive law which consists of legal principles or rules giving effect to purposes such as those just listed was often named, by natural law theories, ius [or jus] gentium. Minted by jurists of classical Roman law such as Gaius (c. 165 AD), this name—literally “the law of peoples”—alludes to the set of rules and principles found in similar if not identical forms in virtually all legal systems. The reason for their ubiquity is, generally speaking, that any reasonable consideration of what it takes for individuals, families and other associations to live together in political society, tolerably well, will identify these principles and rules as necessary. In modern law they are picked out, in principle, by names such as “the general principles of law recognized by civilized nations” (Statute of the International Court of Justice, art. 38), ius cogens erga omnes (literally “law that is compelling [obligatory without agreement or enactment or other forms of adoption] in relation to [for/on, ‘against’] everyone”), “higher law”, or “fundamental human rights.” In Aquinas’s theory of law, they are referred to as conclusions (entailments) of the very highest-level, most general moral principles. In the common law tradition, the legal wrongs picked out by such principles have been called mala in se, as distinct from mala prohibita—things wrong in themselves as distinct from things wrong only because prohibited by (positive) law—and this distinction remains, for good reason, in use in judicial reasoning. Some legal theories speak of these principles and rules as belonging to law by a kind of “conceptual” necessity. Hart (1961) can be so read. But even Hart’s account, on closer examination, identifies the relevant necessity not as conceptual or linguistic but as an instance of the rational necessity of means needed to secure purposes which are non-optional. It was for this reason that Hart spoke of them as constituting “the minimum content of natural law.” He would have expressed his own meaning more perspicuously had he spoken instead of “the minimum content of positive law, the minimum set of principles which, because rationally necessitated —given certain fundamental ‘truisms’ about human nature and the human predicament—for the securing of purposes shared by all survivable human societies, can be called natural law.” The fact is that these elements of our law are both positive (made and part of official practice) and natural (rationally required for at least minimal human flourishing). These issues are discussed further in Section 3 below. 1.5 “Purely positive law”: determinationes and their legal-moral authority for citizens and judges (facts made reasons for action) Natural law theory of law has its most distinctive characteristic in its account of purely positive law which, though “entirely” dependent for its legal status on the fact that it has been authoritatively posited by some persons(s) or institution, nonetheless shares in law’s characteristic of entailing—albeit presumptively and defeasibly—a moral obligation of compliance. About these rules of a positive legal system, Aquinas says that, though they certainly should be, and be presumed to have been, “derived from natural law”, they have their legal force only from their part in this posited system (ex sola lege humana vigorem habent: ST I-II, q. 95 a. 3). His explanation, slightly updated: this very large part of our law could reasonably have been different, in the way that every detail of a maternity hospital could have been somewhat different and large portions of the design could have been very different, even though some features (e.g., that the doors and ceilings are more than two feet high) are entailed by the commission to build a town maternity hospital, and every feature has some rational connection with the commission. The kind of rational connection that holds even where the architect has wide freedom to choose amongst indefinitely many alternatives is called by Aquinas a determinatio of principle(s)—a kind of concretization of the general, a particularization yoking the rational necessity of the principle with a freedom (of the law-maker) to choose between alternative concretizations, a freedom which includes even elements of (in a benign sense) arbitrariness. Once the determinatio is validly made, fulfilling the criteria of validity provided by or under the relevant legal system’s constitutional law, it changes the pre-existing state of the law by introducing a new or amended legal rule and proposition(s) of law. The new or amended legal rule gives judges, other officials, and citizens a new or amended reason for action (or forbearance). The fact that the new or amended rule depends upon the social-fact source constituted or employed by the act of determinatio does not entail that a normative reason (an “ought”) is being illogically derived from a bare fact (an “is”). Rather, the new or amended rule is normative, directive and (where that is its legal meaning ) obligatory because that social fact can be the second premise in a practical syllogism whose first premise is normative: “there ought to be a maternity hospital in this town,” “people ought to be protected against homicidal assault,” “people ought to be required to contribute to the public expenses of appropriate governmental functions”, “victims of assault, theft, broken contracts, negligence, etc., ought to be compensated,” “road traffic should be regulated to reduce damaging collisions,” and so forth. The moral normativity of the principle is replicated in the more specified rule created by the determinatio, even though the latter is not an entailment of the former. That is to say: the concretized rule is (morally as well as legally) normative because such normativity is (presumptively and defeasibly) entailed by the (moral) principle that the common good (whose fundamental content is given by the foundational principles of practical reason: 1.1) requires that authoritative institutions take action to specify, apply and enforce some rules on the relevant matters. Social facts make a positive legal rule a reason for action because the desirability of authority as a means of securing common good, and the desirability of the “rule of law and not of men,” are standing and potent reasons for acknowledging such facts as an instance of valid legislation giving presumptively sufficient reason for compliance. Purely positive law that is legally valid is (presumptively and defeasibly) valid and binding morally—has the moral form or meaning of legal obligatoriness—when and because it takes its place in a scheme of practical reasoning whose proximate starting point is the moral need for justice and peace, and whose more foundational starting-point is the range of basic ways in which human wellbeing can be promoted and protected, the way picked out in practical reason’s first principles. Thus, in relation to the settled positive law, natural law theory—as is acknowledged by a number of legal positivists, (e.g., Raz 1980, 213; Gardner 2001, 227)—shares the principal thesis of contemporary legal positivists, that laws depend for their existence and validity on social facts. 1.5.1 “Presumptive” and “defeasible” obligatoriness The legal-moral obligation or obligatoriness of a legal rule is counterpart to the legal-moral authority or authoritativeness of its author (enacter) or other source. The idea of authority has been clarified by contemporary legal theorists such as Raz and Hart, by reflection upon the kind of reasons for action purportedly given to potentially acting subjects by an exercise of practical authority. The relevant kind of practical reason has been variously called exclusionary, peremptory or pre-emptive, and content-independent. The core idea is that subjects are instructed to treat the proffered reason (say, a statutory provision, or a judicial order), in their deliberations towards choice and action, as a reason which does not simply add to the reasons they already have for acting one way rather another, but rather excludes and takes the place of some of those reasons. And this exclusionary, peremptory or pre-emptive force is owed not to the inherent attractiveness to reason of the (content of the) proffered reason, but to the status of its author or other source as one entitled—for example, by its role in a constitutional scheme of governance for the solution of a political community’s coordination problems—to be obeyed, complied with, treated as authoritative. See e.g., Raz 1986, 35–69. This content-independence of authoritative reasons entails their presumptive obligatoriness. The defeasibility of that presumption is entailed by the dependence of such reasons’ peremptory, pre-emptive or exclusionary force upon a background of presupposed basic human needs and goods, and of basic moral principles and norms, a background which entails that if a purportedly authoritative proffered (posited) reason conflicts sufficiently clearly with those standing needs, goods, principles or norms its exclusionary force is exhausted or overcome and the purported obligatoriness defeated. Less abstractly put, both the effectiveness of laws as solutions to coordination problems and promoters of common good, and the fairness of demanding adherence to them, are dependent upon their being treated both by the subjects and the administrators of the legal system as legally and morally entitled, precisely as validly made law, to prevail against all other reasons save competing moral obligations of greater strength. It is this entitlement that is negated by the serious injustice of a law or legal system: see 3 and 4 below. 2. Human persons are not law’s creatures but its proper point Talk of human flourishing’s or wellbeing’s aspects, and of principles of practical reason, should not be allowed to distract attention from an important truth, implicit both in classical Greek and Roman philosophical and juristic treatments of justice and in modern juristic attributions of human rights. Indeed, the Universal Declaration of Human Rights (1948) links the two traditions of discourse by placing at the head of its articulation of human rights the core (“all human beings are born free and equal in dignity and rights”) of the Roman juristic saying (Institutes 1.2.2) that “by nature, from the outset, all human beings were born free and equal,” a saying about iustitia, justice as a ground and standard for ius, law. The same Roman law texts, promulgated as permanent law by Justinian 533–535 AD, state more than once that law’s point (its “final” causa, explanatory reason) is the human persons for whose sake it is made, that is, all human persons until the time when the ius gentium, the common law of peoples, was distorted by wars and slavery. Law, fit to take a directive place in practical reasoning towards morally sound judgment, is for the sake of human persons: all the members of the community regulated by that law and all other persons within that law’s ambit. That thesis falls within those parts of legal theory that are acknowledged but not much explored by contemporary legal positivists. It was ignored and in effect denied by earlier forms of legal positivism more ambitious to cover the whole of legal philosophy, e.g., Kelsen’s. Kelsen denied that persons were known either to law or to a proper legal theory or science of law, except insofar as they were made the subject of a posited legal rule. But against this restriction, which has misled some courts which have treated Kelsenian legal science as a guide to judicial reasoning, it can be said (Finnis 2000) that the fundamental equality and dignity of human beings should defended as part of a rationally sound understanding (concept) of law. This defense requires an account of the difference between capacities which are activated here and now, or are more or less ready to be so actuated, and radical capacities such as exist in the epigenetic primordia of even very young human beings, and in the genetic and somatic constitution of even the severely disabled. Though such an account makes possible a defense of the fundamental equality of human beings, and thus a humanist legal theory, the point of the account is not to privilege a biological species as such, but to affirm the juridical significance of the status of persons—substances of a rational nature—as inherently the bearers (subjects) of rights of a kind different and more respect-worthy and end-like than the rights which are often, as a matter of technical means, attributed by law to animals, idols, ships or other objects of legal proceedings. 3. Legal principles to remedy defective positive law 3.1 Adjudicating between exclusive and inclusive legal positivism The so-called positivist thesis that all law depends for its existence, validity and obligatoriness on its social-fact source(s) is often accompanied, as in Raz’s “exclusive legal positivism” (Raz 1980, 212–24; Raz 1985), by the thesis that judges, as the “primary law-applying institutions,” have a duty (moral, if not also legal) to decide certain sorts of case (e.g., cases where the existing legal rule would by work injustice) by applying moral principles or rules which warrant amending or even abandoning part of the existing law. “Inclusive” legal positivists temper this by holding that the judicial duty and authorization to depart from existing law by applying moral rules or principles is restricted to those classes of case where an existing social-fact sourced legal rule directs the court do so; the effect of such a directive, it is said, is to include within the legal system the moral rules or principles (if any) thus pointed to. Natural law theory concurs with Raz and Gardner in rejecting the inclusivist restriction as ungrounded, but dissents from them in holding (as Dworkin does too: Dworkin 1978, 47) that any moral rule or principle which a court is bound to apply (or reasonably can apply), precisely as a court, can reasonably be counted or acknowledged as a law, i.e., as a rule or principle which should be considered already part of our law. Against positivists generally, it holds that (i) little or nothing turns on whether or not moral principles binding on courts precisely as courts should be called part of our law; but (ii) if something does turn on the name—if, for example, it be recalled that courts cannot “take judicial notice” of any rule or principle not “part of our law” (and so, as in respect of rules of foreign law, have to hear evidence of the rule’s existence and content)—it is sounder to say that judicially applicable moral rules and principles (unlike applicable foreign law) are ipso iure (i.e., precisely as morally and judicially applicable) rules of law. Such rules belong to the ius gentium portion of our law. Does this amount to acknowledging that natural law theory is significantly less concerned than contemporary legal positivist theories to establish the precise boundaries and content of the social-fact sourced (posited, purely positive) law of our community? Not really. For (i) contemporary legal positivist theories have abandoned the thesis of “classical” legal positivists such as Bentham that judges and citizens alike should (as a matter of political-moral obligation) comply with the positive law of their community: their treatises or essays on legal theory explicitly or implicitly commend to judges as much as citizens the Hartian “This is law; but it is too iniquitous to be applied or obeyed” (Hart 1961, 203; 1994, 208) rather than the Benthamite “Under a government of laws … obey punctually and … censure freely” (Bentham 1776); so the concern of
— The Cambridge Companion to the Philosophy of Law - July 2020
The theory of the nature and purposes of law. In its most abstract it concerns law in general, but it may also be applied to the study of the principles and aims of specific systems of law, hence ‘Roman jurisprudence’, ‘Chinese jurisprudence’ etc. The fundamental issue of general jurisprudence is whether law is simply the system created by human customary practice and legislation: ‘positive law’; or whether there is beyond and above this a standard of legal justice that is not of human making: natural law. This was debated in early Greek philosophy and discussed in Roman jurisprudence in which the case for natural law was strongly argued for by Cicero. This Ciceronian view greatly influenced medieval, renaissance and modern thinkers through to the framers of the US Constitution but in the past two centuries there has been a strong movement in favour of the idea that all law is a matter of convention.