Law and morality bear certain similarities. Each speaks of ‘right’ and ‘wrong’, of ‘justice’ and ‘injustice’, of ‘innocence’ and ‘guilt’ and of ‘principles’ and ‘rules’. There is also the fact that much legislation is justified on moral grounds, as being required by natural (moral) justice. At the same time, it is clear that not every law expresses a moral requirement and not every moral imperative is embodied in law. For example, it is widely held that lying and adultery are morally wrong but neither is prohibited by law (with the exception of the first in relation to giving false evidence, i.e. perjury. Equally there are legal requirements that bear no direct relation to morality, eg to drive on a certain side of the road. Advocates of natural law legal theory (‘jurisprudence’) argue that there should be a close relation between legislation (‘positive law’) and natural justice; whereas proponents of the view that law in independent of morality (legal positivism) deny this. Apart from these deep theoretical issues there is the fact that as the number and reach of laws have increased there is a tendency in the minds of many to think that if something is legally prohibited it must be morally wrong, and if it is legally permitted it must be morally acceptable. It does not take much reflection to see that this is a confusion.
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— The obligations and purposes of law and government are to protect public health, safety, and . . . .
— AFRICAN STUDIES CENTER - UNIVERSITY OF PENNSYLVANIA "Letter from a Birmingham Jail [King, Jr.]" 16 April 1963 My Dear Fellow Clergymen: While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms. I think I should indicate why I am here in Birmingham, since you have been influenced by the view which argues against "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here. But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid. Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds. You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city's white power structure left the Negro community with no alternative. In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good faith negotiation. Then, last September, came the opportunity to talk with leaders of Birmingham's economic community. In the course of the negotiations, certain promises were made by the merchants--for example, to remove the stores' humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained. As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: "Are you able to accept blows without retaliating?" "Are you able to endure the ordeal of jail?" We decided to schedule our direct action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic-withdrawal program would be the by product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change. Then it occurred to us that Birmingham's mayoral election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene "Bull" Connor, had piled up enough votes to be in the run off, we decided again to postpone action until the day after the run off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct action program could be delayed no longer. You may well ask: "Why direct action? Why sit ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue. One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals. We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied." We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness"--then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all." Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I it" relationship for an "I thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong. Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured? Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest. I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience. We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws. I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection. I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured. In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God consciousness and never ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber. I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: "All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth." Such an attitude stems from a tragic misconception of time, from the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity. You speak of our activity in Birmingham as extreme. At first I was rather disappointed that fellow clergymen would see my nonviolent efforts as those of an extremist. I began thinking about the fact that I stand in the middle of two opposing forces in the Negro community. One is a force of complacency, made up in part of Negroes who, as a result of long years of oppression, are so drained of self respect and a sense of "somebodiness" that they have adjusted to segregation; and in part of a few middle-class Negroes who, because of a degree of academic and economic security and because in some ways they profit by segregation, have become insensitive to the problems of the masses. The other force is one of bitterness and hatred, and it comes perilously close to advocating violence. It is expressed in the various black nationalist groups that are springing up across the nation, the largest and best known being Elijah Muhammad's Muslim movement. Nourished by the Negro's frustration over the continued existence of racial discrimination, this movement is made up of people who have lost faith in America, who have absolutely repudiated Christianity, and who have concluded that the white man is an incorrigible "devil." I have tried to stand between these two forces, saying that we need emulate neither the "do nothingism" of the complacent nor the hatred and despair of the black nationalist. For there is the more excellent way of love and nonviolent protest. I am grateful to God that, through the influence of the Negro church, the way of nonviolence became an integral part of our struggle. If this philosophy had not emerged, by now many streets of the South would, I am convinced, be flowing with blood. And I am further convinced that if our white brothers dismiss as "rabble rousers" and "outside agitators" those of us who employ nonviolent direct action, and if they refuse to support our nonviolent efforts, millions of Negroes will, out of frustration and despair, seek solace and security in black nationalist ideologies--a development that would inevitably lead to a frightening racial nightmare. Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to the American Negro. Something within has reminded him of his birthright of freedom, and something without has reminded him that it can be gained. Consciously or unconsciously, he has been caught up by the Zeitgeist, and with his black brothers of Africa and his brown and yellow brothers of Asia, South America and the Caribbean, the United States Negro is moving with a sense of great urgency toward the promised land of racial justice. If one recognizes this vital urge that has engulfed the Negro community, one should readily understand why public demonstrations are taking place. The Negro has many pent up resentments and latent frustrations, and he must release them. So let him march; let him make prayer pilgrimages to the city hall; let him go on freedom rides -and try to understand why he must do so. If his repressed emotions are not released in nonviolent ways, they will seek expression through violence; this is not a threat but a fact of history. So I have not said to my people: "Get rid of your discontent." Rather, I have tried to say that this normal and healthy discontent can be channeled into the creative outlet of nonviolent direct action. And now this approach is being termed extremist. But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: "Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you." Was not Amos an extremist for justice: "Let justice roll down like waters and righteousness like an ever flowing stream." Was not Paul an extremist for the Christian gospel: "I bear in my body the marks of the Lord Jesus." Was not Martin Luther an extremist: "Here I stand; I cannot do otherwise, so help me God." And John Bunyan: "I will stay in jail to the end of my days before I make a butchery of my conscience." And Abraham Lincoln: "This nation cannot survive half slave and half free." And Thomas Jefferson: "We hold these truths to be self evident, that all men are created equal . . ." So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary's hill three men were crucified. We must never forget that all three were crucified for the same crime--the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists. I had hoped that the white moderate would see this need. Perhaps I was too optimistic; perhaps I expected too much. I suppose I should have realized that few members of the oppressor race can understand the deep groans and passionate yearnings of the oppressed race, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action. I am thankful, however, that some of our white brothers in the South have grasped the meaning of this social revolution and committed themselves to it. They are still all too few in quantity, but they are big in quality. Some -such as Ralph McGill, Lillian Smith, Harry Golden, James McBride Dabbs, Ann Braden and Sarah Patton Boyle--have written about our struggle in eloquent and prophetic terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach infested jails, suffering the abuse and brutality of policemen who view them as "dirty nigger-lovers." Unlike so many of their moderate brothers and sisters, they have recognized the urgency of the moment and sensed the need for powerful "action" antidotes to combat the disease of segregation. Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a nonsegregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago. But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen. When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church. I felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained glass windows. In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed. I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular. I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Wallace gave a clarion call for defiance and hatred? Where were their voices of support when bruised and weary Negro men and women decided to rise from the dark dungeons of complacency to the bright hills of creative protest?" Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? I am in the rather unique position of being the son, the grandson and the great grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists. There was a time when the church was very powerful--in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society. Whenever the early Christians entered a town, the people in power became disturbed and immediately sought to convict the Christians for being "disturbers of the peace" and "outside agitators."' But the Christians pressed on, in the conviction that they were "a colony of heaven," called to obey God rather than man. Small in number, they were big in commitment. They were too God-intoxicated to be "astronomically intimidated." By their effort and example they brought an end to such ancient evils as infanticide and gladiatorial contests. Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church's silent--and often even vocal--sanction of things as they are. But the judgment of God is upon the church as never before. If today's church does not recapture the sacrificial spirit of the early church, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century. Every day I meet young people whose disappointment with the church has turned into outright disgust. Perhaps I have once again been too optimistic. Is organized religion too inextricably bound to the status quo to save our nation and the world? Perhaps I must turn my faith to the inner spiritual church, the church within the church, as the true ekklesia and the hope of the world. But again I am thankful to God that some noble souls from the ranks of organized religion have broken loose from the paralyzing chains of conformity and joined us as active partners in the struggle for freedom. They have left their secure congregations and walked the streets of Albany, Georgia, with us. They have gone down the highways of the South on tortuous rides for freedom. Yes, they have gone to jail with us. Some have been dismissed from their churches, have lost the support of their bishops and fellow ministers. But they have acted in the faith that right defeated is stronger than evil triumphant. Their witness has been the spiritual salt that has preserved the true meaning of the gospel in these troubled times. They have carved a tunnel of hope through the dark mountain of disappointment. I hope the church as a whole will meet the challenge of this decisive hour. But even if the church does not come to the aid of justice, I have no despair about the future. I have no fear about the outcome of our struggle in Birmingham, even if our motives are at present misunderstood. We will reach the goal of freedom in Birmingham and all over the nation, because the goal of America is freedom. Abused and scorned though we may be, our destiny is tied up with America's destiny. Before the pilgrims landed at Plymouth, we were here. Before the pen of Jefferson etched the majestic words of the Declaration of Independence across the pages of history, we were here. For more than two centuries our forebears labored in this country without wages; they made cotton king; they built the homes of their masters while suffering gross injustice and shameful humiliation -and yet out of a bottomless vitality they continued to thrive and develop. If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail. We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands. Before closing I feel impelled to mention one other point in your statement that has troubled me profoundly. You warmly commended the Birmingham police force for keeping "order" and "preventing violence." I doubt that you would have so warmly commended the police force if you had seen its dogs sinking their teeth into unarmed, nonviolent Negroes. I doubt that you would so quickly commend the policemen if you were to observe their ugly and inhumane treatment of Negroes here in the city jail; if you were to watch them push and curse old Negro women and young Negro girls; if you were to see them slap and kick old Negro men and young boys; if you were to observe them, as they did on two occasions, refuse to give us food because we wanted to sing our grace together. I cannot join you in your praise of the Birmingham police department. It is true that the police have exercised a degree of discipline in handling the demonstrators. In this sense they have conducted themselves rather "nonviolently" in public. But for what purpose? To preserve the evil system of segregation. Over the past few years I have consistently preached that nonviolence demands that the means we use must be as pure as the ends we seek. I have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends. Perhaps Mr. Connor and his policemen have been rather nonviolent in public, as was Chief Pritchett in Albany, Georgia, but they have used the moral means of nonviolence to maintain the immoral end of racial injustice. As T. S. Eliot has said: "The last temptation is the greatest treason: To do the right deed for the wrong reason." I wish you had commended the Negro sit inners and demonstrators of Birmingham for their sublime courage, their willingness to suffer and their amazing discipline in the midst of great provocation. One day the South will recognize its real heroes. They will be the James Merediths, with the noble sense of purpose that enables them to face jeering and hostile mobs, and with the agonizing loneliness that characterizes the life of the pioneer. They will be old, oppressed, battered Negro women, symbolized in a seventy two year old woman in Montgomery, Alabama, who rose up with a sense of dignity and with her people decided not to ride segregated buses, and who responded with ungrammatical profundity to one who inquired about her weariness: "My feets is tired, but my soul is at rest." They will be the young high school and college students, the young ministers of the gospel and a host of their elders, courageously and nonviolently sitting in at lunch counters and willingly going to jail for conscience' sake. One day the South will know that when these disinherited children of God sat down at lunch counters, they were in reality standing up for what is best in the American dream and for the most sacred values in our Judaeo Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence. Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers? If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me. I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil-rights leader but as a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear drenched communities, and in some not too distant tomorrow
— Law, Freedom, and Slavery - Volume 35 Issue 1
— On September 23, 2021, the James Madison Program and the Ethics and Public Policy Center hosted "The Baby and the Bathwater: Toward a Recovery of the American Idea" at The Mayflower Hotel in Washington, D.C. The event featured Robert P. George (Director of the James Madison Program) and Ryan T. Anderson (President of the Ethics and Public Policy Center) in conversation with EPPC Visiting Fellow Alexandra DeSanctis and Antonin Scalia of the James Madison Program. The James Madison Program: jmp.princeton.edu
— In the last few years, some traditionalists have taken up a sharp critique of "liberalism" as essentially incompatible with pre-liberal ideals of human flourishing. Such arguments are often right about what some progressives have made of liberal poli...
— 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.
— Made in the Image of God The most basic principle of the Christian moral life is the awareness that every person bears the dignity of being made in the image of...
— Join the Napa Institute for a conversation with Gerard Bradley #politics #Law
— 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
Law and morality bear certain similarities. Each speaks of ‘right’ and ‘wrong’, of ‘justice’ and ‘injustice’, of ‘innocence’ and ‘guilt’ and of ‘principles’ and ‘rules’. There is also the fact that much legislation is justified on moral grounds, as being required by natural (moral) justice. At the same time, it is clear that not every law expresses a moral requirement and not every moral imperative is embodied in law. For example, it is widely held that lying and adultery are morally wrong but neither is prohibited by law (with the exception of the first in relation to giving false evidence, i.e. perjury. Equally there are legal requirements that bear no direct relation to morality, eg to drive on a certain side of the road. Advocates of natural law legal theory (‘jurisprudence’) argue that there should be a close relation between legislation (‘positive law’) and natural justice; whereas proponents of the view that law in independent of morality (legal positivism) deny this. Apart from these deep theoretical issues there is the fact that as the number and reach of laws have increased there is a tendency in the minds of many to think that if something is legally prohibited it must be morally wrong, and if it is legally permitted it must be morally acceptable. It does not take much reflection to see that this is a confusion.