THE ROLE OF THE LAW AND THE RELATION BETWEEN POSITIVE AND NATURAL LAW
law. Thus cast, the problem would seem to invite a definition of positive law, and . of rudimentary positive legal organization in relation to which natural law may . Natural Law is said to have three sets of principles: a set of principles that direct human choice and action toward intelligible purposes; another set of. The dynamic relation between natural law, the theory of an objective moral theory of Aquinas on the relationship between natural and positive law, . For example, Hart, H.L.A., The Concept of Law at 8, (Clarendon Press.
Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good.
On Finnis's view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows: Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity: Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law.
Unjust laws may obligate in a technical legal sense, on Finnis's view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide. Thus, Finnis argues that "a ruler's use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' or party's or faction's advantage, or out of malice against some person or group" Finnis For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community's co- ordination problems" Finnis Finnis's theory is certainly more plausible as a theory of law than the traditional interpretation of classical naturalism, but such plausibility comes, for better or worse, at the expense of naturalism's identity as a distinct theory of law.
Indeed, it appears that Finnis's natural law theory is compatible with naturalism's historical adversary, legal positivism, inasmuch as Finnis's view is compatible with a source-based theory of legal validity; laws that are technically valid in virtue of source but unjust do not, according to Finnis, fully obligate the citizen.
Indeed, Finnis believes that Aquinas's classical naturalism fully affirms the notion that human laws are "posited. The Procedural Naturalism of Lon L. Fuller Like Finnis, Lon Fuller rejects the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality.
On Fuller's view, human activity is necessarily goal-oriented or purposive in the sense that people engage in a particular activity because it helps them to achieve some end. Insofar as human activity is essentially purposive, according to Fuller, particular human activities can be understood only in terms that make reference to their purposes and ends. Thus, since lawmaking is essentially purposive activity, it can be understood only in terms that explicitly acknowledge its essential values and purposes: The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort Fuller To the extent that a definition of law can be given, then, it must include the idea that law's essential function is to "achiev[e] [social] order through subjecting people's conduct to the guidance of general rules by which they may themselves orient their behavior" Fuller Fuller's functionalist conception of law implies that nothing can count as law unless it is capable of performing law's essential function of guiding behavior.
And to be capable of performing this function, a system of rules must satisfy the following principles: P1 the rules must be expressed in general terms; P2 the rules must be publicly promulgated; P3 the rules must be prospective in effect; P4 the rules must be expressed in understandable terms; P5 the rules must be consistent with one another; P6 the rules must not require conduct beyond the powers of the affected parties; P7 the rules must not be changed so frequently that the subject cannot rely on them; and P8 the rules must be administered in a manner consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve law's essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy P2 or P4for example, cannot guide behavior because people will not be able to determine what the rules require.
Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that they are built into the existence conditions for law. These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two respects: Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fuller's view, that they constitute a morality.
Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist. Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of classical naturalism.
First, Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law, holding instead that there are necessary moral constraints on the procedural mechanisms by which law is made and administered: Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists.
The classical naturalists view morality as providing substantive constraints on the content of individual laws; an unjust norm, on this view, is conceptually disqualified from being legally valid.
In contrast, Fuller views morality as providing a constraint on the existence of a legal system: Fuller's procedural naturalism is vulnerable to a number of objections. Hart, for example, denies Fuller's claim that the principles of legality constitute an internal morality; according to Hart, Fuller confuses the notions of morality and efficacy: Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. But to call these principles of the poisoner's art "the morality of poisoning" would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned Hart On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have their own internal standards of efficacy.
But insofar as such standards of efficacy conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral standards. Thus, while Hart concedes that something like Fuller's eight principles are built into the existence conditions for law, he concludes they do not constitute a conceptual connection between law and morality. Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral ideals of fairness.
For example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably calculated to give notice of what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent rules, and rules that require what is impossible.
Poisoning may have its internal standards of efficacy, but such standards are distinguishable from the principles of legality in that they conflict with moral ideals. Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles of efficacy.
As Fuller would likely acknowledge, the existence of a legal system is consistent with considerable divergence from the principles of legality. Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of vagueness.
And officials all too often fail to administer the laws in a fair and even-handed manner even in the best of legal systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior. Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditions and not because they function as moral ideals.
Ronald Dworkin's "Third Theory" Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism, which is essentially constituted by three theoretical commitments: The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature.
The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials. Thus, for example, the U. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states.
The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality.
As Hart more narrowly construes it, the Separability Thesis is "just the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" Hart Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts.
In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition Dworkinp. Palmer, for example, the court considered the question of whether a murderer could take under the will of his victim. At the time the case was decided, neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victim's will.
Despite this, the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong. On Dworkin's view, the court decided the case by citing "the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills and in this way justified a new interpretation of that statute" Dworkin On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal standards when it considered this principle.
For the Riggs judges would "rightfully" have been criticized had they failed to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds to criticize a failure to consider it Dworkin Accordingly, Dworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law.
Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive from promulgation in accordance with purely formal requirements: On Dworkin's view, the legal authority of the Riggs principle can be explained wholly in terms of its content. The Riggs principle was binding, in part, because it is a requirement of fundamental fairness that figures into the best moral justification for a society's legal practices considered as a whole.
A moral principle is legally authoritative, according to Dworkin, insofar as it maximally conduces to the best moral justification for a society's legal practices considered as a whole.
Dworkin believes that a legal principle maximally contributes to such a justification if and only if it satisfies two conditions: The correct legal principle is the one that makes the law the moral best it can be. Accordingly, on Dworkin's view, adjudication is and should be interpretive: There are, thus, two elements of a successful interpretation.
First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light. For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the following way: A thoughtful judge might establish for himself, for example, a rough "threshold" of fit which any interpretation of data must meet in order to be "acceptable" on the dimension of fit, and then suppose that if more than one interpretation of some part of the law meets this threshold, the choice among these should be made, not through further and more precise comparisons between the two along that dimension, but by choosing the interpretation which is "substantively" better, that is, which better promotes the political ideals he thinks correct Dworkin As Dworkin conceives it, then, the judge must approach judicial decision-making as something that resembles an exercise in moral philosophy.
Thus, for example, the judge must decide cases on the basis of those moral principles that "figure in the soundest theory of law that can be provided as a justification for the explicit substantive and institutional rules of the jurisdiction in question" Dworkin And this is a process, according to Dworkin, that "must carry the lawyer very deep into political and moral theory.
Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights Thesis, according to which judicial decisions always enforce pre-existing rights: It remains the judge's duty, even in hard cases, to discover what the rights of the parties are, not to invent new rights retrospectively" Dworkin In "Hard Cases," Dworkin distinguishes between two kinds of legal argument.
Arguments of policy "justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole" Dworkin In contrast, arguments of principle "justify a political decision by showing that the decision respects or secures some individual or group right" Dworkin On Dworkin's view, while the legislature may legitimately enact laws that are justified by arguments of policy, courts may not pursue such arguments in deciding cases.
For a consequentialist argument of policy can never provide an adequate justification for deciding in favor of one party's claim of right and against another party's claim of right.
An appeal to a pre-existing right, according to Dworkin, can ultimately be justified only by an argument of principle.
Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must ultimately be based on the moral principles that figure into the best justification of the legal practices considered as a whole.
Notice that Dworkin's views on legal principles and judicial obligation are inconsistent with all three of legal positivism's core commitments.
Each contradicts the Conventionality Thesis insofar as judges are bound to interpret posited law in light of unposited moral principles. Each contradicts the Social Fact Thesis because these moral principles count as part of a community's law regardless of whether they have been formally promulgated.
Most importantly, Dworkin's view contradicts the Separability Thesis in that it seems to imply that some norms are necessarily valid in virtue of their moral content. It is his denial of the Separability Thesis that places Dworkin in the naturalist camp.
Hart Publishing, Brian Bix, Jurisprudence: Theory and Context Boulder, CO: Westview Press, Ronald M. Dworkin, Law's Empire Cambridge: Harvard University Press, Ronald M.
Dworkin, Taking Rights Seriously Cambridge: Then, again, man remembers Natural Law, but after the event. In these cases, Natural Law can function as law. Because ideas have a universal force, that is, they apply to everyone, and when a person understands this reality and ceases to interpret them individualistically, he is then in a position to respect what they enjoin for the common good, even if this is not in his interests. We could here recall an incident preserved by Plutarch.
The Athenians then told him to reveal it only to Aristides whom they trusted so that they could examine it together. What was Themistocles' idea?
Since it now seemed that the danger from the Persians had passed, they should burn the ships of the other Greek cities so that Athens would remain an all-powerful naval power. Aristides reported to the Athenians that he had never heard an idea more beneficial to the city — or more unjust.
Natural Law and Positive Law
The Athenians then ordered Themistocles to abstain from the implementation of his idea. Unfortunately, it is only rarely and in individual instances that men are truly social.
Most of the time, they are characterised by an anti-social attitude concealed by an outer sociability. As Ioannis Zisis says, there is "a social organisation of anti-sociability" [iv] in a society which is fundamentally alienating and competitive. What is the practical benefit of these thoughts? Up to the point where Positive Law contains principles of Natural Law, there seems to be no problem.
The problem begins to appear when Positive Law that is, lex lata is cut off from the abstract moral principles of natural law through the gradually increasing estrangement of the structure and direction of the ruling power from the popular mandate, or, worse, from the common good.Natural Law Theory in less than 6 minutes
We must accept that usually a subversion of principles does not occur out of the blue. Anti-social power does not increase instantaneously, but by degrees. No overthrow of social balances occurs suddenly without prior preparation. Men are usually enticed by values which are interpreted individualistically such as freedom and by the 'substitutes' with which they are supplied provisionally, and for that reason they do not interest themselves in those barely perceptible and gradual qualitative changes by which they are not directly affected.
Natural Law and Positive Law - Oxford Scholarship
However, these small - seemingly 'insignificant' - interpretative changes are agents of the accumulation of power by those who seek them and may be averted peacefully only when the power of enforcement is still inadequate. In this critical period of time, understanding on the part of society and its 'moral and political' preparedness to reject what goes against the individual and society are of great importance.
But, on the one hand, complacency, with the inertia which accompanies it, and the expectation of personal benefit, on the other, have always been a support for distortions of power and, thus, the responsibilities of societies themselves, in spite of the fact that they do not admit this. These scarcely perceptible steps towards the subversion of principles of law may initially start out from a field of distortion of interpretation of the principles of law and justice, such as freedom, equality, individual development, about which no one cares, since the issue of principles in a period of prosperity seems a matter of indifference, and perhaps an annoyance, when the model of human life is only or by any means individual material prosperity.
This, when it becomes surplus to needs as in the case of excessive concentration of moneycan no longer be based on these principles. For example, how does the principle of equality serve the desire for needless economic development or for over-consumption or for social superiority?
Naturally, at the ultimate point of need, for example, in conditions of starvation, there is an accord and coincidence of the moods of the crowd, but that occurs at the level of instincts and the need for instinctive collectivity which is protective for the individual. However, this is not the true sociability of democracy.
Sociability is understanding and self-initiated responsibility as an element of freedom. The interpretation of freedom as irresponsibility which is the prevailing interpretation is as anti-social as it is foolish. Self-initiated responsibility must be a constituent part of democracy and not unaccountable 'liberty'.
The element of self-initiation shows that responsibility is not imposed from without and thus freedom is retained - and that is also a necessary constituent of democracy. The fact, however, is that for the present, man is not mobilised in good time and before the visible results, because he has no vision and inspiration.
Visions for the many are totally obscure or so closely tied up with the desire for material prosperity that when this is fulfilled, man remains void of vision and inspiration for life. It must be understood that concepts are not a theoretical construct which serves us in an instrumental way in our pursuits by providing moralistic excuses. Furthermore, no theory is valid unless it is an evolutionary part of life.
We would stress the 'evolutionary', because there also is the opposite, which, however, destroys life, such as, for example, power as a selfish imposition of strength which is not true governance destroys social and individual life, although it is an animalism as part of life, an animal characteristic which we clearly encounter in nature, and, consequently, is a part of life, the predominance of which, however, must be surpassed.
This vision and inspiration exists in Natural Law. How this will be interpreted or whether someone arbitrarily undertakes its representation is an issue which must be dealt with by self-initiated responsibility and the preparedness of men and their society. One thing which is certain is that in each case of inaction, refusal, and inability to understand, the abuse of power lurks.
- Natural Law
Voluntary responsibility also leads to preparedness, otherwise preparedness on its own is competitive and without vision. Focusing on causes, to sum up, leads to timely apprehension and reaction. Otherwise, the reaction is inappropriate as regards timing, and ineffectual.
The abrogation of principles of Natural Law already legislated 1. Undefined principles There is not only the case of those principles of Natural Law which are unknown, or, even if known, are still unintelligible.
To the extent that the abstract principles of Natural Law are undefined or capable of a host of definitions, a double problem arises as to: It is here that the principle difficulty in the interpretation of Natural Law lies. A rational judgement is needed as to the real possibilities of man's approaching the interpretatively absolute.
Since the answer can only be an honest admission of man's inability to approach the absolute, what is required of each of us is a modesty in interpretation, and a systematic 'serving' of the principles of Natural Law through intensive dialogue. In no circumstances, however, can we be deprived, because of the difficulties, of this source of inspiration and of the great principles which relate to the Common Good, which has been both the cause of all positive individual and social developments, and the concern of religions and major social movements, regardless of their distorted interpretation and implementation.
In the last analysis whatever good has been contained in Positive Law has been based on principles of Natural Law. The legislated principles of Natural Law The truth is that, in contemporary societies, Natural Law is not entirely undefined. Modern constitutions, as fundamental laws, contain a host of its principles, such as human dignity and the value of man. Consequently, if these principles are suddenly abrogated - whether directly or indirectly — by interpretations which restrict them or reverse them, we must take the view that the new law even if this is a constitution which by a revision abrogates these principles violates these higher principles, whether these are still contained in the constitution or have been rescinded.
In this case, moreover, we cannot maintain that Natural Law is unknown and undefined, since it was already contained in the constitution, and that its abrogation constitutes a social involution or cultural degradation - and anyway we cannot regress from these principles. The interpretation of such principles is subject to evolution, but this cannot contract their content or their universality, which would be contrary to democracy.
If the personal development of the individual, for example, as an individual right means that someone can gain so much power that it permits him to use it at will against society and individuals, this can only be a distortion by interpretation which without due form turns freedom into unaccountability, which abolishes the freedom of others, and, consequently, democracy.
In other words, it is unsound for any constitutional provision to be cut off from the provisions of the constitution as a whole, because in this way distorting emphasis on the interpretation of a certain principle contrary to the content of the other principles, as, for example, of freedom against the welfare state, is being allowed.
And, naturally, the checks themselves which must be applied may, in their turn, be turned into lawlessness.