Natural Law

ways all these are facts in an order, external to our own understanding, which our
understanding can only discover. This order is often . called the order of nature.
He concedes, however, there is also disorder in nature. This leads him to conclude that
"direct speculative questions about the significance, . implications, or source of the
orderliness of things yield, by themselves, no clear or certain answers." SQ For Finnis
further explanation can only lie in theology: “As well as the orderliness of the order(s) of
things, there is . their sheer existence." He reasons that concern for the "basic - value of
truth" is essential of our "reasoning is to lead from questions about states of affairs which we
experience to knowledge of the existence of a state of affairs which we do not as such
experience. For principles of theoretical rationality, although they do not describe anything
are objective, not conventional or relative to individual purposes or commitments.” One
cannot but be impressed with the force and sincerity of Finnis's arguments. Yet what is this
reality we must experience and believe in to be satisfied that there are objective goods or
values which i exist independently of anyone's valuation of them? Finnis seems to be saying
that what one has to believe in is itself one of the basic goods (religion). Is this not a boot-
strap argument? We would agree with MacCormick that, to say the least, Finnis's claim is
“not proven."

THE ATTRACTIONS OF Natural LAW

It was Pascal who seized on the irony that, as he put it,“there are people in the world who,
having renounced all the laws of God and nature, have themselves made law which they
rigorously obey." Yet throughout civilisation human beings have striven for something better
than they found in their own laws and institutions. So long as these are not perfect, so long
as there is perceived to be injustice, the search for an ideal system will continue. From the
tirades of Old Testament prophets through Antigone's impassioned plea in Sophocles' plays
to the prosecutors' arguments at the Nuremberg War Trials the plea has been similar: there
are more important obligations, higher ideals, than obedience to the positive laws of the
state. This raises three questions.
First, there is the problem of defining injustice. For Aquinas "the force of a law depends on
the extent of its justice... according to the rule of reason. But the first rule of reason is the law
of nature... Consequently every human law has just so much of the nature of law as it is
derived from the law of nature. But if in any point it departs from the law of nature, it is no
longer a law but a perversion of law." Aquinas was not in doubt as to when human laws were
just. They were when they served the common good, distributed burdens fairly, promoted
religion and were within the bounds of the law-maker's authority. All these concepts are, of
course, value-laden and require interpretation. Opinions differ not only on what constitutes
the common good, but on whether it exists. It should be added that injustice may be done
not just by following the law but by applying it unfairly.
Secondly, there is the question of who decides whether a "law" is so flagrant a breach of
principles of justice as not to merit the appellation of law? Is this a decision that can be left to
everyone's conscience or can it only be taken by professionals, judges or jurists, applying
criteria which they consider principled and morally coherent? If the basis for valuation is
reason, it is difficult to deny this decision to anyone. The consequences of so doing have
disturbed many natural lawyers, including Aquinas. Fuller, on the other hand, comes close to
reserving the decision to professional opinion. "
Thirdly, what are the consequences of deciding that a “law" should not be regarded as
law? Aquinas was in no doubt that such perversions of law did not bind the moral
conscience of man and could be ignored but this was subject to one highly significant
caveat. The “law" should be obeyed when to break it would lead to scandal or civic
disturbance. Aquinas, in other words, weighed up the consequences of disobedience to
unjust laws against the possibly deleterious consequences of permitting it, including the
example that disobedience sets to others who may, as a result, choose to flout other laws
which may not be morally defective. Finnis's conclusion on this is close to Aquinas's. "The
good citizen," he argues, “may be morally required to conform to [an unjust] stipulation to the
extent necessary to avoid weakening 'the law,' the legal system... as a whole." However,
since the ruler should repcal such a law rather than enforce it, he has no right to expect
conformity to it. Presumably, though Finnis does not address the issue, he may, however,
punish those who disobey it.
· Fianis also passes over the dilemma that such "laws" present to officials such as judges.
Are judges supposed to enforce unjust laws? There is an argument, found in Hart's Concept
of Law, that not to enforce such a law would infringe a principle of justice (though this does
not commit Hart to the view that unjust laws should always be enforced for the vaiue of
implementing a law, fidelity to law, may be outweighed by the worse injustice which
enforcing the law might perpetrate). What is the judge to do? Much must depend on the
political context. What independence does he have? Is there a rule of law in his society? Is
he merely a puppet of the régime? If he has merely been “planted" by an authoritarian
régime to give it a vencer of respectability by lehding his good name to its adjudicative
processes, it is difficult to see what moral dilemma this presents. Failure to implement an
unjust law in such circumstances might will lead to unpleasant consequences for him but he
- would not be violating a moral principle. His assumed obligation of fidelity to law is
overridden by the circumstances of his appointment.
Even within a democratic system there are circumstances where a judge, or other official,
may be said not to be in violation of his duties to uphold the law when he refuses to
implement an unjust law. Just as a soldier's duty to obey commands does not extend to
orders to shoot unarmed civilians, so a judge's obligation to implement the law has moral
limits. What these are will depend on the content of the law, the social and political context
and the consequences of applying it and not applying it..
The dilemma of the moral judge provoked a lot of interest and controversy in South Africa
when the system of apartheid still existed? An official has a general obligation of fidelity to
law, but, it may be argued, there are moral bounds to this. As Lyons puts it:
"A misguided or naive official under the Third Reich, who initially believes that the law he
shall be called upon to administer will not be outrageously immoral, may find that it requires
him to verify the eligibility of persons for extermination in the gas chambers because they are
Jews. He may in good conscience have undertaken to apply the law as he finds it, but I see
no reason to suppose that this resulting obligation of fidelity to law extends this far. Such an
obligation has moral limits."
Should the judge who finds the law he has to apply radically immoral "give up his job as
judge and join the revolution"?
The judge might think that there are reasons for staying in his post. He may think most of
the law is just (what percentage of the law in Nazi Germany or apartheid South Africa was
racially polluted?) so that most of his judging takes place on morally neutral terrain.
Secondly, he may believe that there are the opportunities for him to interpret the law
humanely, even giving him the capacity to frustrate the immoral intentions of the legislature.
And thirdly, there is the understandable intuition that, should he resign, he is likely to be
replaced by a less moral judge. .
The second response may well be that of the positivist. Hart, for example, held thai open-
textured rules—and many discriminatory laws by virtue of their very vagueness would come
into this category-gave judges scope to make law and to draw upon moral principles to reach
a decision. This version of the judicial enterprise gives the judge "slightly thicker ice on which
to skate. It produces an area of strong discretion which he might do good. Certainly, in South
Africa liberals sought to show how, "within the interstices of unjust law, humane
interpretations (were) possible."
 It is also the response of Dworkin, though, as we shall see, it is not as easy for him to
sustain it in his adjudicative theory. Dworkin's.judge must ask "which interpretation of his
country's legal practices would put them in what we believe would be their least bad
light."The judge has to think of himself not as giving voice to his own personal moral
convictions, but was an author in the chain of the common law."In Dworkin's view, the
dilemma is best solved by the judge lying because "he cannot be of any help unless he is
understood as saying, in his official role, that the legal rights are different from what he
believes they are.",He says that resigning is of "little help," but, given the legitimacy that the
role of the judge gives the system, this is a somewhat pessimistic analysis: public
resignation might be thought to provoke debate at the very least about the moral propriety of
the laws in question. Perhaps it is not surprising that Dworkin should encounter this
dilemma. His theory of adjudication is based on the concept of constructive
interpretation"which is to be understood as an explanation for the process of "law as
integrity." But this process does not operate independently of the -"dimension off it." The
quest is for the right answer." And an answer is "right" not only in the sense that it is morally
the best justification of the law, but also in that it "fits" in with "institutional history." The judge
is now an oracle for the values immanent in the legal system. Where these values are not
just, then in hard cases involving unjust laws, in Dworkin's view, the judge must lie. This is,
of course, to place fidelity to justice above fidelity to law. But to “be of any help" the judge
would have to institutionalize lying. Would a judge who did this survive? And, if he did, would
his competence, his integrity, not be called into question? Further, even a -lying judge may
lend the system he deplores much-needed legitimacy. Resignation for all its problems may
thus be the most justifiably moral decision. But, it may be asked, why just judges? Should
lawyers too refuse to participate in a systein they regard as morally unacceptable or can a
distinction be drawn between their roles? Like Wacks, I think it can. Lawyers are not state
officials: they may have duties to the state but their primary obligation is to their clients. Nor
do they only work within a court system. Those oppressed under an unjust system need the
independent advice and protection that moral lawyers-and sometimes only such lawyers-can
offer.
Those who espouse naturalism also see other attractions in natural law. It is, D'Entrèves
noted, part of the "unrelenting quest of man to rise above the letter of the law to the realm of
the spirit." It is a useful corrective to counteract the tendency to exaggerate the historical,
fortuitous growth of law. It can explain why positive laws have obligatory force, even when
those laws cannot be deduced from natural law principles. It can give us insight into why
laws are made, for, like other social institutions, laws are only fully intelligible by reference to
the values they ought to realise, such as justice and the public good.
Perhaps, though, the most compelling attraction of natural law for the student of
jurisprudence is that, in exposing deficiencies in positivist thinking, it broadens the whole
scope of the discipline. We must agree with Finnis that "a theorist cannot give a theoretical
description and analysis of social facts, unless he also participates in the work of evaluation,
of understanding what is really good for human persons, and what is really required by
practical reasonableness." Positivist jurisprudence, as we shall see, gives us both
description and analysis of law as a social institution but it has tended, as Shklar notes, to be
legalistic, to assume a “discrete entity." As she notes, and Finnis re-emphasises “the
subject-matter of the theorist's description does not come neatly, demarcated from other
features of social life and practice." The jurist's subject-matter is "law” but how does he
decide what is to count as law for the purposes of his theory?
Neither Austin nor Bentham shows much awareness of this problem. Each starts with a
definition of law which is then taken as an unproblematic given. Neither advances any
justification for the definitions postulated, aor for their conceptions of jurisprudence, built, as
so often is the case, on the backs of the definitions. Kelsen is at least aware that function is
intrinsic to the subject matter of law (he defines law as a specific “social technique") but he
too gives no critical attention to the problem of justifying his definition of law. Thus, he asks
what it is that unites disparate social orders and finds an answer in “law": "the word refers,"
he tells us, "to that specific social technique which is ... essentially the same. ...". By looking
for the lowest common denominator, Kelsen is forced to employ an explanatory term to a
series of situations even though participants in those disparate environments would not use
the concepts or use them in the same way. To say, as he does, that a stateless society
under a despotic chieftain and the Swiss republic both use the "social technique" of law is to
assume a level of sophistication in the notional “primitive society" such that it is able to
distinguish law from morality or custom or religion or might even be interested in so doing.
Both Hart and Raz have consciously abandoned this spurious quest for unity. They
concentrate on central cases and build up a concept of law by appealing to the practical
components of the concept. For Hart law is described in terms of rules for the guidance of
officials and citizens : for Raz it is a system of norms providing a method of settling disputes
authoritatively. But what is a central case? How are importance and significance to be
assessed? Hart and Raz insist that a descriptive theorist in "deciding to attribute a central
role" to some feature must "reproduce" a particular practical viewpoint, Hart, as we shall see,
gives explanatory priority to the concerns and evaluations of those with an "internal point of
view." Raz has shifted from the "ordinary man's point of view" to "the legal point of view" (the
view of those like judges who believe in the validity of norms and follow them). There are
central and peripheral cases of the internal view" and "the legal point of law," but Hart and
Raz seem unwilling to acknowledge this. They refuse to attribute significance to differences
that any actor in the field ... would count as practically significant." It is not clear which
viewpoints bring law, as opposed to some other form of social order; into existence. To
Finnis the conclusion is clear.
"If there is a point of view in which legal obligation is treated as at least presumptively a
moral obligation, ...a viewpoint in which the establishment and maintenance of legal as
distinct from discretionary or statistically customary order is regarded as a moral ideal if not a
compelling demand of justice, then such a viewpoint will constitute the central case of the
legal viewpoint. For only in such a viewpoint is it a matter of overriding importance that law
as distinct from other forms of social order should come into being, and thus become an
object of the theorists' description."
To Finnis, the key is "practical reasonableness." He argues that a theorist cannot identify
“the central case of that practical viewpoint which he uses to identify the central case of his
subject-matter, unless he decides what the requirements of practical reasonableness really
are... In relation to law, the most important things for the theorist to ... describe" are the
things which in his judgment (for his values inevitably influence his selection of concepts to
use in describing law) “make it important from a practical viewpoint to have law." It follows
that when these important things are missing or debased the theorist must explain what it is
in the situations of such societies that causes absence or debasement. Finnis concludes that
a theory of natural law distinguishes "the practically unreasonable from the practically
reasonable," It claims “to be able to identify conditions and principles of practical
rightmindedness, of good and proper order among men and in individual conduct." Whether
it succeeds is considered later.
GREEK ORIGINS
:
If there are traces to be discerned of a conception of natural law among almost all peoples, it
is nevertheless to the Greeks that we must look. Whether the law of nature was first
conceived as governing the cosmos and only later applied to man or society, or whether (as
Kelsen contends) the idea of universal law was a projection of the law of the state into the
physical universe, may well be disputed. Certainly the notion of divine retribution operating ü
human affairs tended to create confusion between natural law as a nor prescribing conduct
and physical law compelling it, and Kelsen even suggests that it was not till Hume that the
idea of causality as a norm directed at nature by the divine will was substantially abandoned.
 The Greeks themselves, though comparatively uninterested in the technical development
of law, were much concerned in expioring its philosophical foundations, and in doing so
evolved many fundamental concepts, of which natural law was one of the most important. In
the classical period, however, little attention was paid to the idea of universal law, though it
was current doctrine that there was in each city-state a body of law (vopos), fundamental
and unchangeable and often unwritten, and which it was à usurpation to override, though the
assembly might pass decrees changing the law in matters of less moment. Plato, by his
idealist philosophy, laid the foundations for much of subsequent speculation on natural law
themes, but he had nothing to say on natural law as such in the sense of a normative and
overriding system of rules. Indeed his Republic was based on the substitution for law of the
philosopher-king, who could attain absolute justice by consulting the mystery locked in his
own heart, which partook of the divine wisdom but remained uncommunicable to lesser
mortals. And even Aristotle, for whom nature played a cardinal role in the unfolding of man's
social development, was so little interested in natural law in the form of normative rules that
he contented himself with a passing reference to the distinction between natural and
conventional justice, while immediately qualifying this by pointing out that, among men, even
natural justice is not necessarily unchanging.
It is with the decline of the city-state and the rise of large empires and kingdoms in the
Greek world, associated with the conquests of Alcxander, that natural law as a universal
system comes to the fore, and for this the stoic philosophers were particularly responsible.
Until the Stoics "nature" had meant "the order of things": with them it came to be identified
with man's reason. When man lived according to "reason" he was living “naturally." To the
Stoics precepts of reason had universal force. They stressed the ideas of individual worth,
moral duty and universal brotherhood, and though in the early days theirs was a philosophy
of withdrawal enjoining conformity to the universal law upon the select few of wise men
alone, in its later development, especially under Panaetius of Rhodes, in the second century
B.C., stress was placed on its universal aspects as laying down a law not only for the wise,
but for all men.
Jus GENTIUM
...
It was in this form, especially through the Greek-loving Scipionic circle, that Stoicism passed
over to and influenced Roman thought. The best representative of this thinking is the Roman
orator, Cicero. His definition of natural (true) law as “right reason in agreement with nature”
has been enormously influential. Cicero was the first natural lawyer to contend for the
striking down of positive laws which contra vened natural law. A legislature, he said, which
said that theft or forgery of wills or adultery was lawful would no more be making law than
what a band of robbers might pass in their assembly. But the more pragmatic mind of the
Roman jurist was little interested in "higher law" and regarded it as more suitable for
oratorical rhetoric. The opening sentence of Gaius's Inscitutes (A.D. 160) may be regarded
in this light, as can Ulpian's “what nature has taught all animals,” though the latter was taken
at face-value by Aquinas, and vestiges plague even contemporary polemics.
But conquest and commerce necessitated the development of law which could be applied
to foreigners, peregrini. Jus Gentium, the jus civile stripped of formalities and with
cosmopolitan trimmings, was the result. Against the intellectual background of stoicism, the
Roman jurists can be forgiven the fact that they confused the law they applied universally
with the law of nature which stoicism had taught was of universal validity. In truth, this was
but an early example of the "naturalistic fallacy," a confusion of "is" and "ought," of what
Jolowicz called "practical" and "theoretical" jus gentium.

MEDIEVAL PERIOD
Throughout the Middle Ages, the theology of the Catholic Church set the tone and pattern of
all speculative thought. As Gierke has pointed out, two vital principles animated medieval
thought: unity, derived from God, and involving one faith, one Church, and one empire, and
the supremacy of law, not merely man-made, but conceived as part of the unity of the
universe. Yet, until Aquinas in the thirteenth century, Christian thought was also bedevilled
by the notion of law and human dominion being rooted in sin. It was not the least of
Aquinas's contributions that, in his synthesis of Aristotelian philosophy and Catholic faith in a
universal divine law, he rejected the idea that civil government was necessarily tainted with
original sin and argued for the existence of a hierarchy of law. derived ultimately from God,
and in which hunian or positive law had a rightful though lowly place and was worthy for its
own sake.
Aquinas (1224–74) is in many senses the "paradigm ‘natural law theorist' and dominates
the period from the church fathers to Kant." He divides law into four categories, though the
concept as a whole is unified. The ler aeterna is divine reason, known only to God and "the
blessed who see God in his essence." It is God's plan for the universe, a deliberate act of
God and everything, not only man, is subject to it. The lex aeterna is necessary since man is
ordained to a particular end (eternal happiness) and cannot attain this through his own
powers alone but needs guidance and direction. The lex divina is the law of God revealed in
the Scriptures. The lex naturalis consists of participation of the eternal law in rational
creatures. It is thus the eternal law in so far as this is intuitively and innately known and
knowable. Natural law is the same for all men since all are rational and "it is proper for man
to be inclined to act according to reason." This only applies to the general or primary
principles of natural law. As far as the detailed working out of the principles is concerned, it
is the same only for the majority of cases. Aquinas conceded that the will to do right and
awareness of what is right may be distorted by habit, custom or temperament.
Aquinas believed that natural law could be added to, though, as far as first principles were
concerned, not subtracted from. Secondary precepts, however, could be changed in rare
cases. This does raise considerable problems. First, it is not clear which precepts are
primary and which secondary. Nor is it clear how the secondary principles are derived from
the primary ones. There may be only one primary precept: "good is to be done and evil to be
avoided.” How can change in secondary precepts be explained? It cannot be that human
nature changes so that obligations change also. Aquinas admits that human law, which
derives its validity from natural law, changes with human circumstances and human reason.
Attitudes to usury are an example. Aquinas proscribed this as contrary to natural law but
Cardinal Cajetan, a sixteenth-century commentator on Aquinas, had no difficulty in
abandoning this doctrine. The growth of commerce and industry and the need for investment
justified the change. But may not other natural law doctrines by similarly interpreted? Can
the “bellum justum” doctrine, as formulated in St. Augustine and expounded by Aquinas,
survive the growth of nuclear weapons? (It was under attack already in the early sixteenth
century from humanists such as Erasmus and More). Can the ban on contraception,
explicitly restated in the Papal Encyclical Humanae Virae in 1968, be defended in a world
plagued by over-population and challenged by the changed status of women?
There is finally the lex humana or positive law. This derives its validity from secondary
natural law but "it is not a mere emanation from or copy of natural law.” It is necessary for
two reasons. First, natural law does not provide all or even most of the solutions to everyday
life in society. Secondly, there is "need for compulsion, to force selfish people to act
reasonably.” Human laws are either just or unjust. To be just a positive law must be virtuous,
necessary, useful, clear and for the common good. Slavery is thus justified. Unjust laws are
a perversion of law and do not bind man's moral conscience. If contrary to divine will, for
example laws commanding idolatry, man is released from obedience (“We ought to obey
God rather than men"). With other unjust laws obedience.is recommended to avoid scandal.
Man is to "yield his right of rebellion," though such a law clearly does not bind his
conscience. It is difficult to distinguish these classes of unjust law. Aquinas also
distinguishes between the positive laws of particular societies and the ius gentium. He
implied that where a law was common to all societies this fact itself supplied its moral
underpinning. The ius gentium was thus analogous to the natural law, though separate from
it. It was also more fundamental than ordinary positive laws. One of the consequences of
this was that Aquinas was able to endow certain common institutions like private property
with a special sanctity.
The difference between practice and theory was never more manifest than in the
medieval period, with its high-sounding moral doctrine combined with barbarous usages and
strong-arm justice.
RENAISSANCE, REFORMATION AND COUNTER-REFORMATION
The Renaissance led to an emphasis on the individual and free will and human liberty and a
rejection of the universal collective society of