ESSAY ON CLASSICAL AND MODERN NATURAL LAW THEORY

ESSAY ON CLASSICAL AND MODERN NATURAL LAW THEORY INTRODUCTION

Natural law was the only kind of legal theory from the ancient Greeks up until the 16th or 17th century. The essence of natural law `was that law must be understood as a practical application of morality hence law and morality are intimately connected. Legal positivism idea however denies that law is simply a matter of applied morality. Many positivists noted that many legal systems are wicked and what is really required by morality is controversial – abortion is an example of where law continues to make rules guiding it. Positivists conclude that law is a kind of social technology which regulates the behavour of its subject and resolves conflicts between them. The philosophy of law is therefore of a particular social institution and not a branch of moral or ethical philosophy.

THE RISE OF NATURAL LAW IN ANCIENT GREECE AND ROME

Originally natural law was a general moral theory which explained the nature of morality and not nature of law per se. The basic idea is that man using his reason and possible with the help of revelation of gods and Gods could come to how he could act in respect of his fellow man. The claims of natural law morality applied just as much to the ruler and the ruled. Nowadays, natural law is generally taken to mean only that part of the original moral theory which explains the way that law, narrowly construed, operates as part of broader moral life of human beings. John Finnis emphasizes that the philosophy of law is continuous with general moral or ethnic philosophy. It has been argued that in small, close-knit, primitive societies the inhabitants make no distinction between what is morally right and the way they think is right to do things. Plato believed that those who were properly philosophically instructed might come to appreciate the true form or idea of justice and other absolute values. Aristotle thought that man was social, political and sought knowledge and only when in a position to fulfill these aspects of his nature could men flourish and achieve good life. The law on books that most directly result from intellectual activity was the jus gentium, which started life as a second class legal order, or a stripped-down Roman Civil law which applied to foreigners, but which came to be regarded as a higher or superior legal order, in some sense akin to international law, a kind of common law of citizens which applied throughout the Roman Empire. The single most important theoretical issue is how universalistic perspective is property to be employed to judge the laws of any particular society. In most extreme form, one can adopt the Latin maxim ‘lex injusta non est lex i.e. an unjust law (according to principle of morality) does not count as law, is not law e.g. law passed by everybody to kill their first born will not be considered as law. This most extreme version of the force of natural law has been primary target of positivists that such a law is validly passed is law, even when might be morally obliged to disobey it. It is a common exam mistake to state something silly along the line that ‘only natural lawyer judge the law by moral standards. Legal positivists are happy to criticize immoral laws; they simply do not deny an immoral law is a law. Jeremy Bentham attacked England law throughout his life as bad laws and did not claim they are not laws because they were bad. Natural lawyers tried to show more plausible connection between law and morality. In conclusion, natural law tradition arose as the application of theory of morality which emphasized man’s common moral nature to the legitimacy of states. This became politically important when empires sought to rule over different people with different customs so natural law seem ideally place to provide universal standard of justice. Different theories arise which did not agree on universal basis.

THE NATURAL LAW OF AQUINAS: STRUCTURE

Thomas Aquinas uses his genius to reconstruct classic natural law tradition of the Greeks and Romans with Christian theology. The central idea was the grace of God was held not to conflict with or abolish man’s nature but to perfect it in a way a Christianized version of natural law could continue to bring to fruition the natural law tradition. According to Aquinas man was able to participate in the moral order of nature designed by God. The orders of law were as follows: a) Eternal law: the whole universe is governed by divine providence which is the ultimate order imposed by the Creator. b) Natural Law: The participation of man in ordering his affairs in participation in the rational affairs by a reason is participation in the rational order ordained by God through his divine wisdom through the use of his free will. c) Human Law Human law constitute of particular rules and regulations that man using his reasons deduced from the general precepts of natural law to deal with particular matters that crimes must be punished with a severity that corresponds with the seriousness of a crime e.g. death, imprisonment 2, 10, live or fine for certain offences. These are also positive laws as they actually deposited by men d) Divine law: This is the law that is revealed my God to man more or less directly through the provision of the Ten Commandments. Much of the divine law would be church or cannon law and enforced by church or in some case by state e.g. (usury or blasphemy or witchcraft), divine law could be instantiated in secular law as well. Furthermore, there could be overlap for example the Ten Commandments, where prohibition against, murder, theft, bearing false witness which are divine law are also appreciated as natural law.

THE NATURAL LAW OF AQUINAS: LEGAL REASON, HUMAN LAW, AND THE OBLIGATION TO OBEY THEM

Sometimes human law is simply a deductive conclusion from general precepts of natural law. Aquinas explored the analogy of the architect to explain how human law is created. Natural law precepts or requirements of house building e.g. doors, windows, foundation roof, wall etc while human laws deduct from this and come up with proper measurement, punishment etc. Aquinas uses specification (specified) while human law decides the determinatio, determination within the boundaries set by natural law. Human law must be general to all things. Since human are granted limited reason and insight, there will always be exceptional case in which a departure between the strict rule will be justified, human judge must maintain and nature this sense of equity in the face of the rule. Human law is mutable and will be different in different times and places but it is unwise to change the law frequently or radically. They should only be changed if the benefits clearly outweigh the drawbacks. The fact that a law is unjust does not provide one with an absolute licence to disobey it because of the consequences because some might be encouraged to disobey law for selfish reasons.

MODERN NATURAL LAW THEORY 1:

FINNIS Moral skepticism is what a natural theory must address. Realists about morality believe that moral values and principle exist and cognitivists about morality believe human can come to know these moral values. Moral skeptics deny these views. Emotivists of various kind belief what we call our moral belief are express of our emotional attitudes. Moral skepticism has often been attacked as incoherent and nonsensical but the debate remains a live one. The second argument is fact/value distinction i.e. distinction between description and prescription. David Hume famously pointed out that one cannot validly infer or derive evaluative proposition from factual one. One cannot derive ought from is. Because of their biology woman can bear children, therefore women ought to bear children and is morally right to do so and immoral for them to avoid to having children. The argument is that natural law trading is founded on the fallacy of deriving ought from his. Finnis argues that natural laws theory is founded on man’s ability to grasp value directly not inferring from facts of the world. The values of life, knowledge, play aesthetic experience, friendship, religion and practical reasonableness. These basic values are irredeemably plural and incommensurable.

FINNIS’S NATURAL LAW THEORY OF LAW AND CRITICISM OF POSITIVISM

Law is a social institution whose purpose is to regulate the affairs of people for all people to flourish and therefore law is a moral project. Finnis welcome the insights into the nature of law originated by positivists, in particular HLA but denies that positivism provides a full or accurate picture of law Attempt to sustain natural law theory.

MODERN NATURAL LAW THEORY II: FULLER

In his own case, Fuller sought to explain the moral content of the idea of the rule of law i.e. government by rules and judicial institutions as opposed to other sort of political decision-making. The morality he described is morality as legally meaning morally sound aspects of governing by rules. Moral skepticism is what a natural theory must address. Realists about morality believe that moral values and principle exist and cognitivists about morality believe human can come to know these moral values. Moral skeptics deny these views. Emotivists of various kind belief what we call our moral belief are express of our emotional attitudes. Fuller is often credited with devising a procedural natural theory in that he does not focus on the substantive content of legal rules and assess them as to whether they are moral or not, but rather concerns himself with requirement of just law-making and administration.

THE CONTINUING DEBATE OVER THE CONNECTION BETWEEN LAW AND MORALITY

HLA who though a positivist was always sensitive to the natural lawyers claims and again addressed the different connection he saw between morality and law. Dworkin sees an intimate connection between morality and law although from different perceptive. Dworkin believes his theory refutes positivism.

CONCLUSION

This essay examines natural law theory i.e. law and morality and intimately connected which was the only legal theory from the ancient Greeks up until the 16th or 17th century. Legal positivism idea however denies that law is simply a matter of applied morality and concluded that simply a social institution that regulates the behavour of its subject and resolves conflicts between them. Some of the thinkers include John Finnis, Plato, and Aristotle. Thomas Aquinas use his genius to reconstruct classic natural law tradition of the Greeks and Romans with Christian theology of Eternal, Natural, human, and divine law, Finis and Fuller who sought to explain the moral content of the idea of the rule of law. Finally HLA who though a positivist was always sensitive to the natural lawyers claims and again addressed the different connection he saw between morality and law. Dworkin sees an intimate connection between morality and law although from different perceptive. Dworkin believes his theory refutes positivism.