JURISPRUDENCE LAW4420

JURISPRUDENCELAW4420

NATURAL LAW THEORY1

PERSISTENCE OF THE IDEA OF HIGHER LAW IN HUMAN HISTORYBelief in the presence of a higher moral law - that human-made law (or positive law) must conform to and shall not violate against - has prevailed throughout the history of both Western and Eastern thinking.

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Found in Greek philosophy at least from the time of Heraclitus of Ephesus (c. 535-475 Be). Has a central place in Judea-Christian doctrine as set out in the writings of Augustine, Thomas Aquinas and the Scholastics. Lived in the natural rights discourses of Grocius, Hobbes, Locke, Pufendorf and others. Found in Vedic (Hindu) philosophy the moral law of governance is revealed in the Dharmasastra. Found in traditional Sinic culture, Confucian philosophy subordinated law to ethics. The religious Sharia is a powerful influence on the law of Islamic nations. Modern age, basic human rights are posited as universal higher norms binding on nation states. In Western philosophy such higher moral law is commonly known as natural law3

Bix: People take it for granted that laws and legal system under which they live can be criticized on moral grounds, that there are standards against which legal norms can be compared and sometimes found wanting. The standards against which law is judged have sometimes been described as a (the) higher law.

The natural law is an imperishable possession of the human mind. In no period has it wholly died out.

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Sophocles play, Antigone

Antigone had to decide whether to obey the command of the King, Creon, that her brothers body (killed in an uprising against the state) should not be buried but left to be devoured by the beasts. The Greeks thought that such a fate would lead to horrible suffering to the afterlife. Antigone scatters earth on her brothers body, and is arrested and brought to Creon. She defends herself by saying:

Yea, for these laws were not ordained of Zeus,And she who sits enthroned with gods below,Justice, enacted not these human laws.Nor did I deem that thou, a mortal man,Could'st by a breath annul and overrideThe immutable unwritten laws of Heaven.They were not born today nor yesterday;They die not; and none knoweth whence they sprang.5

Nelson Mandelas speech from the dock before being sentenced in 1962 for engaging illegally in the struggle against the apartheid state of South Africa

Your [Lordship], I would say that the whole life of any thinking African in this country drives him continuously to conflict between his conscience on the one hand and the law on the other. This is not a conflict peculiar to this country. The conflict arises for men of conscience, for men who think and feel deeply in every country. Recently in Britain, a peer of the realm, Earl Russell, probably the most respected philosopher of the Western world, was sentenced, convicted for precisely the type of activities for which I stand before you today, for following his conscience in defiance of the law. For him, his duty to the public, his belief in the morality of the essential rightness of the cause for which he stood, rose superior to his high respect for the law. He could do no other than oppose the law and suffer the consequences for it. Nor can I Nor can many Africans in this country. 6

Bram Fischers explanation of his plea when he stood charged with acts of sabotage directed against the apartheid regime of South Africa.

I accept my Lord the general rule that for the protection of a society laws should be obeyed. But when the laws themselves become immoral then I believe that a higher duty arises. This compels one to refuse to recognize such laws. [The apartheid laws] were enacted for the purpose of silencing the opposition of the large majority of our citizens to a government intent upon depriving them solely on account of their colour, of the most elementary human rights My conscience, my Lord, does not permit me to afford these laws such recognition as even a plea of guilty would involve.

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DIFFICULTIES IN UNDERSTANDING NATURAL LAW TRADITION/PROGRAM IN MODERN CONTEXT

Some people today find it difficult to accept the idea of a higher law(or natural law). This is due to modern legal mindset.

For lawyers think of the law as rules enforceable in a court of law.

Hence, for natural law to make any sense to the modem legal mind, it must be capable of judicial recognition and enforcement even against positive state law.

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But natural law thinking represents a much broader philosophical program. It investigates the moral principles that ought to govern political action, law making and adjudication as well as the personal lives of citizens.

The 'law' that natural law theory speaks of has a much wider meaning than the positive law of the state.

According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. 9

MEANINGS OF HIGHER LAW LITERAL AND METAPHORICAL

Literal meaning:

That there are law-like standards that have been stated in or can be derived from divine revelation, religious texts, a careful study of human nature, or consideration of nature.Metaphorical meanings:It at least reflects our mixed intuitions about the moral status of law.That not everything properly enacted as law is binding morally; orThat the law, as law, does have moral weight it should not be simply ignored in determining what is the right thing to do.

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THE NATURE OF NATURAL LAWWhy Natural Law?

So called because it is believed to exist independently of human will. It is 'natural' in the sense that it is not humanly created.

Lloyd:

The essence of natural law may be said to lie in the constant assertion that there are objective moral principles which depend upon the nature of the universe and which can .be discovered by reason.

Michael Doherty:

Natural law core assertion: Rather than all moral rules being created by reason, there are some moral rules that exist independently of reason, but may be understood by it. The way in which man should live is locked up in his nature and the nature of his universe.

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The central idea: There is a kind of higher (non-human) 'law', based on morality, against which the moral or legal validity of human law can be measured.

Thus, natural law theories emphasize the relation between the moral natural law and positive human law of a given political community, society, or nation-state, and serves as a standard by which to measure or critique the said positive law.

Extreme position of critique: Proclamation by Saint Augustine's doctrine: UNJUST LAW IS NOT LAWlex injusta non est lex.

Todays commonly accepted position: The duty to obey the law is ultimately a moral duty. 12

CONCEPTUAL CLARIFICATIONS - LAW OF NATURE, NATURAL RIGHT AND NATURAL LAW

The three concepts signify distinct concepts, though connected. They are often used interchangeably - leading to misunderstandings.

LAW OF NATURE

It is a scientific theory about the physical universe and how it functions.

It is accepted as inflexible law until refuted by evidence.

Human life is governed by the laws of nature. Laws of nature also have much to do with human behaviour.

Laws of nature are not normative laws. They inform us about the world as it is but not about how we ought to behave.

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NATURAL RIGHTS

Human existence depends on life sustaining conditions.

Thus, some philosophers (Thomas Hobbes and John Locke) argue that a person in a a state of nature is endowed with certain natural rights and liberties simply by virtue of being born. These are the rights necessary for existence as a human being. The most basic of these are

right of self-ownership and liberty of self-preservation.

State of nature - the conditions before there was civil government. 14

Since these rights are inherent in all persons they must have existed before the establishment of kings, parliaments and courts - that is, before positive law.

There were human rights before there was human law. Hence, a 'natural law'.

Natural rights are sometimes identified with the law of nature. Particularly in the older literature. They are certainly not part of the laws of nature in the scientific sense.15

NATURAL RIGHTS AND NATURAL LAW

The idea of natural law is different from that of natural right, though they are loosely related.

A right has to be based on law.

Legal positivists- the law of the state.Natural law theorists- natural law.

A natural right is derived from a principle of natural law.But natural law is not coextensive with natural rights.

Some Greek philosophers - universal moral rules are part of the unchanging law of nature.

Modern scientific sense - law of nature is about the way the universe is.

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PROBLEMATIC OF NATURAL LAWThe method used to derive rules of natural law makes an illogical jump from questions of fact (what is) to the question of obligation (what ought); (This is crucial for natural law - If moral propositions could be deduced from factual statements, we would be able to set up moral truths which would demand general consensus).

Natural law theories have frequently been employed to justify the status quo (e.g. slavery) and to validate what would seem to us to be unjust regime (apartheid); and

Natural lawyers have failed satisfactorily to explain what effect the difference between natural law and human law.

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Theories of natural law differ with respect to their effect on human actors rulers and subject.

natural law only creates moral obligations;Hence, law makers have moral obligations not to make laws in violation of natural law and individuals may have no moral obligation to obey an immoral law, though they may face legal consequences for disobedience.

natural law has superior legal force; Human law that violates natural law has neither moral nor legal validity (lex injusta non est lex). 18

Natural law theories face the challenge of demonstrating how the universally valid moral laws to be discovered.

Philosophers of classical antiquity - the eternal order of the universe. Theologians - divine will. Natural rights and social contract theorists - dictate of necessary and indispensable conditions of human life. Other theorists - self-evident values and practical reason (e.g. Finnis)

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Three questions confronting natural lawyers position:

Are there pre-programmed patterns of behaviour in nature and in human nature?Why should a human being follow the pattern of behaviour with which he has seemingly been programmed?How do we know that it is good to follow the natural patterns of behaviour and, even it is, might it not sometimes be better to go against it?

(An independent concept of good has to stem from some persons non-rational preference)20

Two alternative responses:

There is a superior entity that requires us to do what is good and has ordained these laws. Justification: We obey God rather than the devil because God is good. If we can show that all men think that a particular thing is good, then we might say that natural law is self-evidently good and needs no rational justification. (Cf Finnis)

But the questions remain:

Who determines the injustices of positive law? On what basis does a law fail the test? Natural law theorists base morality on nature and not on positive law, and they disagree over the origins of natural law.21

THHE QUESTIONS CONFRONTING NATURAL LAWThe content of natural law

According to the different theories, the content is varied and sometimes contradictory. E.g.: slavery and freedom

Most thinkers prefer to assert the existence of principles from which a variety of rules can be derived, rather than asserting the rules themselves.

Hence, while the principle of justice is universal, its application varies. (Stammler)

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The obligation to obey natural law

Empiricists raise the question Where does obligation to obey natural law come from? Even if universal patterns can be demonstrated, this does not show that there is an obligation to follow them. Just because people do something, does not mean they ought to do this.

Alternative answers:People and things have a purpose and are part of a definite order, established by a benevolent creator.The universal principles are motivation, not patterns of behaviour. This requires separation of bad motivation from good motivations.The principles are only rather obvious facts which practical reason dictates we should obey.

However, this approach provides us with reasons for doing something on grounds of expedience, or self-interest only, rather than principles for action that are to be followed for moral reason. Morality and self-interest do not appear to coincide.23

Is there a conflict between natural law and individual conscience?

In the absence of objectively provable moral norms one can only know ones own conscience. Why then is the need to subjugate individual morality to a universal morality? Is it not a moral contradiction if one were to ignore ones own conscience in order to obey some universal moral law?24

TYPES OF NATURAL LAW THEEORIESTwo main strands in Natural law theories in their identification of the higher law;

metaphysical/theological, or secular. Theological or Metaphysical theories divine will

The universe, including human society, as created and governed by some deity, who has laid down constant principles which must be externally controlling all of creation.

This is known to humanity through revelation in the scriptures, and they are common for all societies.

Such principles provide the morality which must govern all human communities and they constitute a higher law to which all social arrangements, including the laws created by people, must strive to approximate.

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Secular theories - conscience

Human have a certain conception of morality which is intrinsic to them and to their nature.

This morality, manifests itself in the form of conscience, and is made up of basic principles which form the basis for proper human action.

Principles are identifiable through the application of reason - a faculty that all humans have, enabling them to understand the universe.

The principles make humanity tend towards the virtues, such as justice and kindness, and away from the vices, such as malice and violence.

Such principles, ought to form the proper basis for law making and, to this extent, they constitute a higher law, to which all human laws must strive to conform.26

Modern natural law common good

Modern natural law idea tends to deemphasize the theological and metaphysical element of classical natural law theories, with their reliance on a higher law. It concentrates on the notion of the common good, which is seen as the basis for the existence of society.

Law must conform to or advance the requirements of the general welfare human flourishing - if its existence and operation is to be justified and if society is to continue to exist and function as a viable entity. 27

MAIN PRESUPPOSITIONS OF NATURAL LAW THEORY

Natural Law is based on value judgments which emanate from some absolute source and which are in accordance with nature and reason. These value judgments express objectively ascertainable principles which govern the essential nature of persons and of the universe. The principles of Natural Law are immutable, eternally valid and can be grasped by proper employment of human reason.These principles are universal and, when grasped, they must overrule all positive law, which will not truly be law unless it conforms to natural law. Law is a fundamental requirement of human life in society.

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METHODOLOGY OF NATURAL LAW THEORIESTHE GOAL:

a teleological view of the universe and of human society.;the world, especially human society, has an ultimate purpose - some state of perfection towards which society must inexorably advance; some social goal as being self-evidently good and which all right thinking persons must desire - the common good; Law, as a device for promoting the desired good, is regarded as being a social necessity. Without it, persons in society are liable to be corrupted by the exigencies of existence in a relatively harsh and unfriendly environment; they will not be able to achieve or even work purposefully towards the desired goal. Law is a guide to those working for the common good and a deterrent to those who would work against it.

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Human laws and Natural law

Created only to provide the optimum conditions, resources, and opportunities for the attainment of the desired goal.

Human laws must be evaluated in light of the principles of natural law - specify the proper path towards the ultimate state of perfection and which provide humans with a proper basis for their morality and law. 30

Nature of law about oughtThe important question - not what the law is at any point of time, but what the law ought to be so that it to be a true reflection of natural law principles. Validity of human lawPurpose of human laws - to provide for the attainment of the ultimate state of perfection in accordance with the principles of natural law.Hence, the validity or otherwise of laws must be judged in accordance with the extent to which they accord with these principles. A law which substantially deviates from these principles is not only a bad law, but can be regarded as invalid as well, since it does not truly reflect the model of what the law ought to be. 31

Deriving the ought of lawMorality is ultimately based on the value judgments of persons in society which are properly reached at after the exercise of reason. The goal which it is intended to achieve through law is also identified through reflection, and may be objectively discovered from the attitudes or preferences of all moral persons in society. Starting point - an assessment of what the moral attitudes are of people in society. From this, they deduce what the desired state of perfection and the moral principles leading to it should be. On this basis, they decide how the desired result can be achieved through the law. This is what is meant by the assertion that Natural Law theorists try to derive an ought from an is, that is, from the is of actual existing moral attitudes to the ought of what must be the desired and, therefore, proper set of social arrangements. It is then on this basis that they proceed to evaluate the laws that are actually in place the law that is and decide whether they are valid or not depending on whether they are what they ought to be.32

NATURAL LAW OF THE EARLY SOCIETIESFusion of law and moralsModern people living in politically organised states associate law with enactments of law makers in one form or another;distinguish between legal rules, which can be enforced with the assistance of the courts, and moral rules, which are sustained by social pressures and the good sense of individuals.

People living in traditional or tribal societiestraditional societies do not have the institutions of modern state;a tribal society has no central law maker;life was organised according to customary rules of behaviour. people in older societies considered certain customary rules of conduct were binding upon them, but having no knowledge how those rules were established;these customary rules were different from rules of law enforced by courts in modem states;yet, for people who observed them, they were obligatory in the same way that people in modern society consider legislation to be obligatory.

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In the natural history of humankind, deliberate and conscious law making is a relatively recent activity.

Edmund Leach (an anthropologist) - in the context of human history as a whole, law making is unusual.

FA Hayek - humans lived in groups held together by common rules of conduct for something like a million years before they developed reason and the language needed to articulate those rules.34

When the law takes the form of social custom, it is not easy to separate law and morals .

(See Fritz Kern, in his classic work Kingship and Law in the Middle Ages).

Continuing influence:

In many languages legal right and moral right are expressed by the same word. The English word 'right' signifies what is right in law as well as what is morally right. The Sanskrit word dharma has both legal and moral connotations. These words go back to a time when the legal law and the moral law were for the most part one and the same.35

Law making in ancient world

The great law codes of the ancient world were attributed to mythical law givers - legendary kings, heroes and prophets who claimed to have received the law from divine sources - Ur-Name, Hammurabi, Solon, Lycurgus and the authors of the Roman Twelve Tables.

The theory was that:

Ancient 'law givers' did not intend to invent new law but to declare existing law. The ruler's duty in medieval feudal society was to uphold the law, not to make or remake it. When rulers legislated they purported to clean the law of its corruptions.

In practice the ruler made law out of practical necessity, without actually repudiating the myth that the law could not be violated.

As Kern stared, if the law of the mythical law giver stood in the way of desirable innovations, it would simply be regarded as perverted, by corrupt tradition, and hence capable of improvement. 36

Birth of the idea of higher law

Originally there was no higher natural law by which the validity of the law could be adjudged. The law was the moral law, binding on ruler and subject alike.

The idea of a higher 'natural' law came about only when law separated into state law and moral law the separation which occurred when rulers gained political power to alter the law at will, and the realization that not all law was unalterable and unchanging divine law.

As states grew, law became associated with the will of authorities such as legislatures and courts. Once human authorities were conceded the power to actually make law, as happened in the Greek city states, the need to curb that power was obvious. No appeal could be made to the law itself, as the law was what the law maker willed. Only a higher law was capable of setting aside the human law.

The Greeks formulated a theory of natural law in accordance with their understanding of the universal good.37

EARLY GREEKS - NATURAL PHILOSOPHY

The original Greek understanding of nature (physics) was formulated by the natural philosophers of Ionia in the 6th century BC. Thales and Anaximander began to reflect rationally on the basic principle which regulated the origin and decay of the natural world.

This was the birth of Western philosophy, which gradually began to displace the traditional Olympic mythology which dominated the Homeric world. 38

The basic insight of the first natural philosophers:

From a fragment of a text by Anaximander:

But where things have their origin, their passing away occurs according to necessity; for they are judged and make reparation to one another for their injustice according to the ordinance of time'.

Nature (physics) is presented by Anaximander as an intelligible order regulated internally by a principle of justice, which corrects all the transgressions of proportion, place and function in the cosmic order.

The Anaximander fragment represents but one example of early Greek natural philosophy, which also included Ionian physics, Eleatic rationalism, Democritian atomism and Pythagorian mathematics.39

THE SOPHISTS THE SOCIAL PHILOSOPHY AND PRAGMATISMAt the end of the 5th century BC, the great variety of views about the rational essence of physis, compounded by the paradoxes of Zeno, began to generate sceptical concerns about the whole philosophical endeavour to penetrate nature rationally.

The Sophists discarded the cosmological project and introduced a new sense of pragmatism into Greek philosophy and a concern with society and human affairs.

When the Sophists began talking about physis, the term no longer carried with it the sense of an inherently just order of objective proportions and relationships which Anaximander ascribed to it.

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A shift in the understanding of law (Nomos)Undermining of Natural LawThe shift from natural to social philosophy which the Sophists initiated was accompanied by an equally incisive change in the traditional understanding of law (nomos).

As long as mythology remained an effective force, the laws were attributed to the gods, and so the existence of universal and eternal laws, like those to which Antigone appealed, was accepted. But as the older mythology became challenged by the new rational cosmologies of the natural philosophers, the universal authority for the unwritten laws of the gods lost its force.41

42In this context of upheaval, intensified by wars of expansion, appeals to unwritten laws took on a more sinister meaning. This was the stage reached in Athens at the end of the 5th century BC where, when democracy was restored after the Peloponnesian War, even magistrates were expressly forbidden to make use of unwritten law.

Rise of the IndividualismIt was during this time of scepticism and distrust of both cosmology (physis) and mythology (nomos) that Sophists, like Protagoras, boldly stated that man is the measure of all things. With this statement, the figure of the naturally free and self-serving individual entered the historical scene.

This spirit of individualism set the Sophists against the objectivism of both the traditional understandings of physis and nomos.

In place of the old understandings, the Sophists introduced a contrast between physis and nomos of their own. On the one hand, laws were dismissed as artificial human creations which lacked any objective foundation in justice. On the other, nature was reduced to the free play of human passions and instincts. At its most radical (as represented by Callicles, the person credited with formulating the phrase 'natural law), the Sophists claimed that nomos was an unjustifiable and artificial curb on the natural operations of physis. The real task of the legal philosopher was to free physis from these contingent constraints.43

Natural law without moral contents

According to Callicles, there is such a thing as natural law, but it consists simply in this: That the strong man should live to the utmost of his natural powers and give free play to his natural desires. Existing human laws are unnatural, because they represent the attempt of the weak to curb the natural passions of the stronger.

In other words, it is natural and just for the strong to dominate the weak and that it is unfair for the weak to resist such oppression by establishing laws to limit the power of the strong.

Callicles argued that the institutions and moral code (of his time) were not established by gods but by men who naturally were looking after their own interests.

Although Callicles used the term to challenge the legitimacy of the laws and customs of the state, the term lacked any of the moral content which is usually associated with it. 44

PLATOS - ATTEMPTS AT RESTORING THE FOUNDATION OF JUSTICEIn response to the challenge posed by the Sophists, and after the injustice of the trial and execution of Socrates, Plato and Aristotle each established philosophical schools in Athens in the hope of restoring justice in the city. Platos and Aristotles strategy: They eliminated the contrast which the Sophists introduced between physis and nomos, by arguing that physis contained the objective foundation of right (dikaion), justice and the good.

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In his famous student textbook on justice, The Republic, Plato opposes both the democratic faith in the written laws of the state, and the brutish and radically individualistic natural law which [the Sophists] Callicles and Thrasymachus advocated.

To counter the second, Plato develops a new understanding of physis as itself permeated by an intelligible and just order.

Plato derives this idea by returning to the cosmology of the early natural philosophers, and, in particular, to the mathematical discovery of fixed proportions of harmony and geometric forms in nature. Plato believed that everything in the world had an ideal Form, and that a knowledge of mathematics and geometry could assist the philosopher to gain knowledge of these essential Forms. 46

Justice

Plato developed the idea of justice as an absolute thing in itself, having qualities of truth and reality higher than those of positive law, which could then be seen as a mere shadow of real justice.

Law must constantly strive to approximate to the Absolute Idea of justice.Ideal justice could only be achieved or fully realized in an ideal state, ruled over by philosopher-kings, who would be capable of grasping the Absolute Idea of justice.To oppose the reliance on written law, he proposed the direct rule of a class of philosopher kings which governed the state exclusively on the basis of their knowledge of the ideal Form of the right, the good and the just.47

Discovering the Ideal Form

Plato explained his dualistic conception of reality through the simile of a cave in which the shadows of things in the outside world are cast on the walls by the light of a big fire. In the darkness of the cave, a group of prisoners who are chained with their backs to the opening mistake the shadows for real things. If one prisoner were to escape from the cave, he would be able to see the real objects (the ideal Forms) which cast the shadows on the cave wall, and eventually, but most difficultly for a person used to darkness, he would be able to see the sun itself (the form of the Good). If this enlightened prisoner returned to the cave, he would, after readjusting himself to the darkness, be able to distinguish much better than the other prisoners between the shadows and objects casting the shadows and know what they are shadows of, because he had seen the true Form of everything. The prisoner who had returned (the philosopher king) would take up the task of ruling the rest as an unavoidable necessity. As this simile makes clear, it is on the basis of the insight of the philosopher king into the intelligible essences or Forms contained in nature, that Plato hoped to restore the objective foundation of justice which the Sophists had undermined.48

ARISTOTLE ATTEMPT AT RESTORATIONPhysis Telos - Justice

Aristotle took up Plato's project to counter the Sophists' brutish version of natural law but adjusted it in important aspects.

Aristotle was not a mathematician but a botanist. He therefore declared in The Nicomachean Ethics that Plato's attempt to locate the objective foundation of justice in static and quasi-geometric essences, hidden behind the world of appearances, was too abstract to regulate practical human affairs.

He preferred, instead, to locate the objective foundation of justice in the observation and study of biological growth. Aristotle claimed that everything in nature grows or inclines as its final cause towards a pre-determined natural end, purpose or function (telos).

The telos of an entity determines its predetermined place in the world and is identical with its nature.

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Aristotles Approach:Aristotle was concerned with the world as he saw it existing around him. natural phenomena were in a state of perpetual change There was always progress. Throughout the living world in the birth and growth of animals and plants, the earlier stages always lead up to a final development. The process is constant; there is always potential for further change: in everything there is potentially striving to reach further stage of actuality. for Aristotle the universe is dynamic, always engaged in the process of becoming, of moving towards an end immanent within itself from the start.

Aristotles teleology extended beyond the individual phenomena of the natural world to the activities of creatures within it, including human beings.

For Aristotle, the highest form of human society lay in the Greek city state (a polis).The polis provided the society in which man could achieve his culminating fulfillment.Mankind has been progressing towards that which has been its end from the beginning. 50

No distinction between what is and what ought to be

Since the nature of a thing provides its telos or final end, there is in Aristotle's cosmology no distinction between what is and what ought to be.

The Good is relative to the nature, proper functioning, or telos of the specific thing in question. It [the Good] cannot be defined abstractly as an Idea.

To know the Good for human beings one must know what the nature or essential function of a human being is. The goodness of any person who has a specific function in society, like a flautist or sculptor, lies in the proficiency with which she performs that function. The same is true of human beings in general. The unique function of human beings which sets them apart from other living beings, is to live a rational life of complete virtue over the course of a complete lifetime.[It is only through such life of complete virtue and the performance of good actions that happiness, which is the ultimate good in Aristotles ethical world, can be attained]. 51

Two types of Virtue

Further, virtue can be of two types:intellectual, which can be taught and learned; and moral, which is inculcated by legislators in the form of habit.

Justice as highest form of virtue

For Aristotle, justice is the exercise of virtue, and is the sovereign virtue. Justice is not a part of virtue but the whole of it. It is not a concept simply invoked in a court of law, or for resolving distinctly legal issues, but is the idea at the very core of our ethical existence. 52

Justice and political lifeHowever, in Aristotles scheme of thing, the political context of mans existence is pivotal. Accordingly, justice (as a concept of political philosophy) only has meaning in the political situation.

Such justice is termed political justice, and is only found among those whose mutual relations are compelled by law. It follows that the virtue of justice only has meaning in the political context.

Like all virtues it exists only in the mean, and justice must enact what is moderate and fair, as an accommodation of extremes and extreme interests.

Thus, as a matter of political ethics, justice is complete virtue not unqualified but in relation to somebody else. Justice is the exercise of virtue in the real political situation. It is the recognition that the common interest is always superior to the individual interest.

Understood in this political context, justice exists both in the universal sense, as an idea in Platonic terms, but also in the particular.53

Law and Virtue

Law plays a key role in encouraging a virtuous life.

Political justice is constituted by principles of natural law and is realised as civil law. In these terms, civil law is written to reflect the guiding principles of natural law, which direct us to act virtuously towards one another. Although natural law is constant, civil law can vary from one particular to another; as of course, does justice. Indeed, the definition of civil law is its mutability. If it did not change, it would not be civil law but natural law. 54

At the same time, for Aristotle, law is simply a means, not an end. Law is not an absolute good.

It is justice which is an absolute good, and justice has priority.

This distinction establishes the genus of natural law.

It is also the reason for Aristotles introduction of a principle of equity. Equity corrects the deficiencies of law as it is applied in the particular situation, and, as such, ensures justice in all situations.55

Reason

Aristotle thus presents a vision of physis in which everything inclines towards its natural purpose or end.

Further, reason can penetrate the purposive harmony contained in nature itself.

For determination of just solutions to human affairs, the form of reason in issue is not that involved in science or mathematics, but what Aristotle calls prudence or practical wisdom (phronesis). Thus within the Aristotelian cosmology, the task of the judge was to discover the dikaion or the right, to find the just solution contained in the intrinsic order and relationships of nature, not merely to study or apply the laws in a logical fashion. The jurist discovered the right or dikaion by discerning or understanding the nature or telos of the things in question.

This understanding of physis is the objective foundation of justice, understood as either giving each person her due according to the nature or function of that person in the bigger cosmos (distributional or geometrical justice), or rectifying the difference caused by an injury to an otherwise geometrically just relationship (rectificatory or arithmetic justice).56

Summary of Plato and Aristotle

By constructing their comprehensive cosmologies, Plato and Aristotle wished to restore the old objective foundations of the right (dikaion). Their cosmological approach to natural law remained influential until roughly the 16th century, when the purely mechanical understanding of nature developed by the modern empirical scientists brought an end to the classic natural law belief in an ethical order contained in nature itself. 57

ROMAN NATURAL LAWAccording to Douzinas, the Romans adopted the Aristotelian approach to justice and developed it into an advanced legal system. Roman jus (the equivalent of the Greek dikaion) was not a collection of rules or rights, but the just and rightful outcome of a dispute. The jus designated the just share of each citizen in her relationship with others. Thus Ulpian could define justice as suum jus cuiquetribure. In this sense, jus referred not to individual rights, but to the just share or due given a person on the basis of an established structure of relationships, which varies with each person's status and role.58

STOIC PHILOSOPHY AND ITS INFLUENCE ON THE ROMANS

Roman law and legal philosophy was also strongly influenced by a new strand of Greek natural law thinking Stoicism.

This new understanding of natural law was developed by the Stoics philosophers, a school of thought founded in Athens, in the early 3rd century BC.Factors for rise of Stoicism:Platos and Aristotle's attempt to rehabilitate the old Greek idea of a closed and meaningful cosmos containing fixed patterns of relationships, lost some of its attraction during the imperial reign of Alexander the Great. The encounter with strangers beyond the confines of a localised cosmology and a growing sense of dislocation brought about change in the understanding of the natural law. According to the Stoics, all reality was pervaded by an intelligent divine force, the Logos or universal reason, which ordered all things. Seeds or traces of this Logos were planted in the reason of all human beings. What mattered in life was an inner state of mind in harmony with the Logos, and not the external circumstances of the outer life. Stoics therefore celebrated a life of rational self-control over all other passions, including the fear of death.59

Emphasis on Human reason; on individual, not collective lifeThe result was in a sense un-Greek: ethics was divorced from the maintenance of external and predetermined relationships in the world; but turned into the cultivation of an inner state of mind independent from society.

Amongst Roman Stoics like Cicero, Seneca and Marcus Aurelius, the change in the older cosmological Greek thinking initiated by the Stoics became apparent.A person was no longer considered an organic part of a group, but an individual under a universal legal code. All individuals were, in principle, equal before the law and their rights were determined not by their predetermined functions, but by the universal law that is applicable everywhere and at all times. The sage did not need to observe nature any longer, but only had to listen to his inner voice. Human reason thus replaced nature or physis as the source of natural law.

In one of his most celebrated passages of the Roman Stoics, Cicero describes natural law explicitly as right or universal reason: 'There is in fact a true law namely, right reason which is in accordance with nature, applies to all men, and is unchangeable and eternal'.60

Regarding the universality of law, Cicero added,And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is God, over us all, for he is the author of this law, its promulgator and its enforcing judge. Cicero established the view that an unjust law is not law, arguing that a test of good law was whether it accorded with the dictates of nature.61

In this remarkable passage, Cicero captured all the elements of the Stoic natural law theory:natural law reflects the cosmic order of nature and is not manmade; the dictates of true law are universal, unchanging over times and does not differ in different societies;every person has access to the standards of this higher law by use of reasons: as such we do not need wise men to tell us about the natural law, for reason reveals its principles; natural law is moral law; hence it cannot be repealed or altered by legislation and human standards must conform with these higher moral standards in order to be legally valid;Only just laws really deserve [the] name law, and in the very definition of the term law there inheres the idea and principle of choosing what is just and true. (Cicero, Law .v. 11-12)natural law is morally binding on rulers and subjects alike, though it can be and is violated by state law; and state law may excuse immoral acts, bur those who commit them pay a heavy moral price in the form of the debasement of their own human nature.62

THE CIVILIZING INFLUENCE OF THE STOICS ON ROMAN LAW

Suri RatnapalaThe Stoics did not end slavery. (Even Cicero owned a slave - his secretary.) However, Stoic natural law ideas had a civilising influence on Roman law. Early Roman law treated women, children and slaves as the disposable property of the pater familias, the male patriarch of the family. The condition of slaves, freemen (libertini- emancipated slaves) and women improved gradually as Stoic thought filtered into Roman jurisprudence through the ius gentium (law of nations) and ius naturale (natural law). Roman law was both written and unwritten. The written law (ius scripca) comprised mainly the statutes of various comitia (representative assemblies) and the Senate, the magisterial and imperial edicts and the written opinions of select jurists (responsa prudentiun). Edicts were statements clarifying the law. Responsa prudentium were answers to specific legal questions given by learned jurists who were legally authorised to give opinions, which were binding as law. The unwritten law (ius non scripta) was made up initially of the customary private law that was the heritage of Roman citizens - the ius civile. 63

The ius civile literally meant the law of the citizens. It had no application to foreigners (peregrini) and freemen. This created a serious problem as Rome expanded from a village to a city, and then to an extended republic, and finally to an immense empire that embraced most of what is now Europe, England, Asia Minor and North Africa. The empire, at its zenith, had about 4 million citizens and 50 million non-citizens, including slaves, freemen and people of the diverse Roman colonies. As the peoples of the empire began to interact, Roman magistrates (praetors) faced the bewildering challenge of administering justice between citizens and foreigners and among foreigners from different nations. They noticed that all nations shared a common stock of fundamental laws, such as those concerning person and property and the honouring of contracts. This body of laws became known as the ius gentium (law common to all nations), and this law was applied to civil disputes involving non-citizens.64

The apparent universality of these laws led some jurists, including Rome's two greatest law codifiers, Gaius and Justinian, to equate the ius gentium with the ius naturale, the natural law of reason that the Stoics spoke about. This position was unsustainable because there were many laws of the ius gentium- such as those legitimising slavery - that the ius naturale of the Stoics condemned.

However, it is likely that, at least until the end of Emperor Hadrian's rule (117-138), the two were regarded as the same. Principles of the ius gentium and the ius naturale initially applied only to non-citizens, but were received eventually into the ius civile through law reform.

There were two ways in which this occurred. First, the jurists providing response were influenced by Stoic natural law ideals. The responsa were a primary source of law. Second, the praetors, in formulating their own edicts, were guided by the opinions of jurists. The introduction of the concept of equity (aequitas), which allowed judges to ameliorate or reduce the harsher consequences of the law, was a notable case of Stoic law reform. 65

RELIGIOUS NATURAL LAW: THE CHRISTIAN ERADuring the rise of Christianity, natural law of the teleological kind became the bedrock of Christian jurisprudence.

Belief in an omnipotent, omniscient and rational Creator leads naturally to the idea of a higher law to which all creatures are subject.

Moreover, if God is responsible for all things and Gods rational, the universe must be ordered according to a divine plan in which all things have a divinely determined purpose.

Christian natural law theory was developed first by Saint Augustine of Hippo, and later by generations of Christian philosophers known as the Scholastics or schoolmen, of whom the greatest was Saint Thomas Aquinas.

The Scholastics were so named because most of them studied in cathedral schools. They were scholar monks who sought to rationally justify their faith, and in that quest were greatly influenced by the classical masters, particularly Aristotle and the Stoics.66

Saint Augustine of HippoChristian natural law is present in the New Testament. Saint Paul wrote that even Gentiles (a Christians as distinguished from Jews) by nature followed God's law, which showed that the law was 'written in their hearts, their conscience also bearing witness'.

However, the first systematic exposition of a Christian theory of natural law was undertaken by Saint Augustine (354-430). Augustine was an African, born in Tagaste (in present day Algeria), who rose to become the Bishop of Hippo and Christianity's first great scholar.

[As a student of rhetoric, he became familiar with Stoic philosophy, mainly through the writings of Cicero. The Stoics considered the natural law as part of the authorless eternal order of the universe. The universe for them was not random, but functioned according to a kind of cosmic reason. Stoics, like most Greeks and Romans of the classical age, had no concept of a single responsible creator God. Cicero's god was not the personal god of monotheistic faith but the impersonal god that represents the laws of the cosmic order. The classical world had many gods, who were themselves subject to universal law. Cosmic reason governed gods, humans, animals, plants and all objects].67

In Christian cosmology there is no law above God. God is the creator of the universe and all its laws. God is not like a computer programmer who writes the laws of a universal program and allows it to run its course. The Christian God keeps watch over his creation and intervenes at will.

Augustine supplanted the impersonal cosmic reason with the reason of the purposeful personal God.

The eternal cosmic law (lex aeterna) is God's law. Augustine wrote: 'eternal law is the divine reason and the will of God which commands the maintenance of the natural order of things and which forbids the disturbance of it. God created human beings and endowed them with reason. Human reason, though, is seriously limited and is only capable of an imperfect understanding of the eternal law.However, a part of the eternal law is imprinted on the human soul. We can discover it within us by searching our souls with the torch of reason. The law so discovered is the natural law (lex naturalis). Natural justice is that which is in accordance with the natural order. Injustice is the lack of concord with this order.

Augustine stated two cardinal principles of natural law: (1) give unto each person their proper due; (2) do nothing unto another he would not have done unto himself.68

Dual citizenship of Human Beings

In His great work, The City of God, Augustine suggested that every human being is a citizen of two cities, the City of his Birth and the City of God. Human beings are thus both citizens of the fallen earthly kingdom, and of the spiritual kingdom of the soul.

All earthly kingdoms, including the Roman Empire, are grounded on the passions of the body and must therefore eventually pass away in strife. Only the heavenly kingdom of the soul is in a permanent state of peace.

Augustine claimed that the kingdom of the City of God is represented on earth by the church, which, through the sacraments, provided the only means through which God's saving grace can nevertheless break into fallen human history.69

Human LawAugustine thought that at the beginning there was no human law, as the natural law was sufficiently recognised and observed by people. Inevitably, the natural law became obscured as reason was corrupted by vice.

Human law became necessary to restore the natural law with the force of political authority. It is also the case that the natural law is general and abstract. The state, by its enactments, works out the application of the general natural law to the variable conditions of social life.

State

Augustine, unlike some of the early Church Fathers, did not regard the secular state as a consequence of original sin. Instead he viewed the state as the product of man's social instinct, which is a natural and divinely ordained aspect of the created universe. The state thus is a natural part of the divine eternal order.70

The Role of Human Law

Human laws role isto serve the natural law and, through natural law, to serve the eternal law.

Wise and virtuous people do not need human law, as they live by the natural law without any compulsion. Hence, human law is not made for the righteous but for the wicked.

The role of human law is not to make people good but to prevent people being bad. Human law cannot eliminate all evil, only the worst excesses.

The problem is that not only citizens but also the state can be, and often is, wicked. A wicked state in fact can cause more harm to the natural order, whatever that may be, than a wicked individual. The state from time to time makes diabolical laws.

Augustine was very clear about unjust laws. A law is unjust when it is at odds with the natural law, and such laws should be ignored by everyone. In other words, unjust laws create no legal or moral obligation.71

[From Roederer and Moellendrof]Implications of Augustine's theory of dual citizenship on natural law thinking

For Plato and Aristotle, the key to justice remained the philosophical contemplation of the external natural order. In the work of Augustine, justice could no longer be conceived by an outward gaze at the fallen world, but only through inward contemplation of the presence of God in the soul. Against the theoria of the Greeks, Augustine claimed that thinking was enlightened from within by God's Biblical revelation. Philosophy and reason was thus completely subjected to theology and faith.Against the Greek view of the intelligible or rational nature of the animating principle of the cosmos, Augustine claimed God's essence as pure Will. Unlike the Greek cosmology, Jewish cosmology did not possess an inclusive, purposive and intelligible concept of the cosmos. The universe was, on the contrary, understood as something which was created out of nothing by an absolutely free and unconditioned act of God. Nature itself lacked any direction, but for the Will of God which is imposed on it from outside. Under the influence of this alternative understanding of nature, the focus of the natural law could no longer be the objective relations within the external natural world, but had to shift towards the free Will of the creator God. 72

Augustine gave up on the fallen world and claimed that the true reality of the world could only be known through an individual's internal experience of God as mediated by the Church and its sacraments. This implied that the natural law of the Stoics could no longer be understood as the immanent Logos or reason in nature. Rather, it became the wisdom and declared Will of the creator God. Augustine thus directed the moral tradition inward and ever further away from a concern with objective nature or physis. Obedience to the Will of God became the only moral imperative.

This shift in natural law thinking is still echoed in the Decretum of Gratian (a codification of church law which appeared about 1140) which states in the opening paragraph: `Mankind is governed by two laws; the law of nature and custom. The former is that which is contained in the Scriptures and the Gospel'.73

Revival of Aristotles classical philosophy of natureAugustine's nature-denying version of Christianity dominated the Western world until the early 12th century.But contacts with the Arab world brought Western thinkers once again into contact with the old manuscripts of Aristotle. This lead to a revival of the classic interest in nature and led to radical shift in the philosophical underpinnings of the Christian understanding of natural law.

The initial response of the church was to ban the study and teaching of Aristotle's work. However, the new reconciliation, which Thomas Aquinas achieved between the Greco-Roman and the Jewish-Arab traditions by relying on Aristotle (as opposed to Plato), soon gained the upper hand and turned the tide.

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Natural law in the Middle Ages

In the Middle Ages, natural law theory was maintained by the Canonists, the ecclesiastical lawyers concerned with the governance of the Church. Around 1140, Gratian, a scholar monk at Bologna, the great centre of legal learning, produced the Decretum Gratiani, the first of a series of six collections of canon law that became the Corpus Juris Canonici. (The Corpus remained as the law of the Roman Church until 1917, when it was replaced by the Codex Juris Canonici, promulgated by Pope Benedict XV.)

The opening words of this first collection state: 'Mankind is ruled by two laws: Natural law and Custom. Natural Law is that which is contained in the Scriptures and the Gospel.

Elsewhere it is asserted that natural law 'came into existence with the very creation of man as a rational being, nor does it vary in time but remains unchangeable. 75

As to its force, the Decretum Gratiani states:

Natural law absolutely prevails in dignity over customs and constitutions. Whatever has been recognised by usage, or laid down in writing, if it contradicts natural law, must be considered null and void. (I, viii, 2; D'Entreves 1951, 34)

The Canonists were mainly concerned with the positive law of the Church, and not with philosophy. The best exposition of Christian natural law theory is that of the Dominican philosopher Saint Thomas Aquinas (1225-74). 76

Saint Thomas AquinasAquinas was influenced by the Aristotelian doctrine (through Ibn Rushd) that everything has its own nature or end which is necessarily good to attain. To be an oak tree, for instance, is the optimum state of existence towards which an acorn tends.

Aquinas fused these Aristotelian concepts with Christian thinking, saying that it is God who directs everything in nature towards this end.

This divine plan he calls eternal law.

For Aquinas, human beings, unlike other creatures, have the capacity for reason and reason allows us to discern what ends are natural for us and therefore the good we should pursue and the evil we should avoid, as directed by God.

Natural Law

This part of the eternal law, which humans are capable of discerning with human reason, Aquinas called natural law: the natural law is nothing else than the rational creatures participation of the eternal law.

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Thus natural law for Aquinas consists in those rules for guiding our conduct which reason reveals are the routes to human flourishing in the way intended by God.

The divinely ordained function of government, according to Aquinas, is to translate the dictates of the natural law into temporal or positive standards.

Law, says Aquinas, is rational ordinance made for the good of the community by those who have the powers of government. And human laws which deviate from this ideal standard are therefore a perversion of law.

Such laws are not binding in conscience, except perhaps in order to avoid scandal or disturbance78

Imperfect or Limited Participation of Human Reason in Eternal Law

Human reason, however, 'participates' in Divine Reason or the Eternal Law in an imperfect manner. Our practical rationality or the Natural Law provides us only with certain self-evident general principles, but not with the particular determinations of individual cases.

For Aquinas, these first principles of natural law were derived from human inclination.

First, good is to be done and pursued, and evil avoided. Second, as humans incline towards self-preservation, whatever is a means to preserving human life forms part of the natural law. Third, the same applies for the natural inclination of human beings to sexual intercourse, to educate their children, to know the truth about God, and to live in society.

The Natural Law prescribes these things universally as goods which have to be pursued rationally. The Natural Law is therefore not a set of rules (like the Decalogue) but a guide to, or method of, reasoning about practical affairs.79

Two additional layers of law:

In addition to the Eternal Law and the Natural Law, Aquinas identifies two additional layers of law.

Divine Law and Human law.

Divine law refers to that part of the Eternal Law that God has decided to reveal to human beings in the Holy Scriptures (the Bible).

Human law is positive or human-made law. The function of this level or type of law is to give concrete expression to the Eternal and Natural Law, and thus to maintain justice in the cosmic order.

Aquinas illustrates the relationship between the Natural Law and Human Law with the example of ownership. The Natural Law prescribes the possession of all things in common, but human law recognises private property and individual ownership. Does this mean that the Human Law has changed or abolished the Natural Law? No, says Aquinas, the Human Law has here only added further detail to the natural law for the benefit of human life; it has not changed the Natural Law by subtracting anything from it.80

The effect of unjust human lawsAquinas essential point: Whichever way human law is derived, its moral justification is in serving the natural law and hence also the eternal law.

Aquinas three pre-conditions for the recognition of an enactment as a law at all. made for the common good; made by the whole people or by God's vice regent for the whole people, who is the monarch ruling by divine right; and Promulgated.

Thus, a statute that serves the ruler's private interest may not be a law. Since law is made by the whole people or the vice regent of God, the commands of a usurper will not be law. A law has to be known by those to whom it is addressed. These are only the formal requirements of law. A law that is formally valid may yet fail the ultimate moral test.81

Aquinas conceded that law makers cannot be as precise as scientists in deriving particular conclusions from indemonstrable general principles: 'Human laws cannot have that inerrancy that belongs to the demonstrated conclusions of sciences.

Nevertheless, the central message is clear. Law makers have no business other than to serve the natural law by working out the logical implications and the practical applications of its precepts.82

Does a person have a duty to obey an immoral or unjust law?

Aquinas adopted the general legal doctrine that a command of an authority need not be obeyed if it is against the command of a higher authority. Since the authority of God is supreme over secular authority, human law that offends the natural law (or the divine law) is not binding on persons. Wherefore if the prince's authority is not just but usurped, or if he commands what is unjust, his subjects are not bound to obey him, except perhaps accidentally, in order to avoid scandal or danger.

Aquinas conceded that practical reason may sometimes dictate that a person ought to obey an unjust law if disobedience would destabilise a legal system that is generally just.83

Summary on Aquinas natural law theory

It affirms that law properly so called is law that is derived directly or indirectly from the eternal law of God and that does not violate the eternal law. The individual is directly and indirectly under the command of the eternal law. Apart from the physical laws of nature that govern all things, human beings are duty bound to obey the divine law of the scriptures and the moral precepts of the natural law that are imprinted in the form of reason. Individuals also have a moral duty to obey the laws of the state that do not violate the natural law or the divine law. 84

Features of Aquinas Theory of Natural Law

The multi-layered theory of law developed by Aquinas sought to combine the cosmology of Aristotle with the Christian faith in a Divine Creator or God. Aquinas gave new content to the classical cosmological assumptions by claiming that nature embodied the eternal reason or law of God. In the process, he re-asserted, against the Augustinian tradition, the presence of a rational or intelligible essence or order of justice in nature, and the primacy of reason or law as God's essence above the Will. Thus, Aquinas declared the eternal law as the same as God's essence: 'no one can know the eternal law, as it is in itself, except the blessed who see God in His Essence'.Aquinas was the last major theorist of a cosmological conception of natural law in the history of Western political thought. The reconciliation between reason and faith, or nature and grace, which Aquinas effected was soon challenged by the debates that raged in late medieval scholasticism.85

William Ockham and the Nominalist Rejection of the Great Reconciliation

Three debates dominated late scholastic thought (i.e. the thought associated with the schools established by the Church).

The universalia debate concerned the existence of universals;the poverty debate the difference between ownership and possession, and the slavery debate the right of people to voluntarily sell themselves into slavery.

The last two debates had a decisive influence on the development of the modern idea of rights as subjective domains of absolute power (potestas).

The first debate, however, lead to the dissolution of the classical cosmological view of nature and thus of the classical Greco-Roman tradition of natural law.

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The Realists v Nominalists

The universalia debate pitted the realists against the nominalists.

The realists defended the position adopted by Aquinas, namely that there were universal intelligible essences or concepts contained in nature.

The nominalists claimed that universal concepts were only words and that in nature only concrete entities exist.

William of Ockham (1290-1350), a Franciscan monk, was a leading participant in this debate. He defended the nominalist position against Aquinas, by re-asserting the Augustinian idea of the primacy of God's Will (a position called voluntarism) against Aquinas's claims about the primacy of reason or law in God's essence. 87

Separation of the empirical from the eternal

It was because God's Will was free and absolute, that there could be no natural essences in nature or no eternal or natural law to which God was bound. God could will that the good be turned into the bad. Furthermore, God's will could only be known through faith and not through reason.

Thus, Ockham rejected Aquinas's idea that human beings rationally participated in or had knowledge of the lex aeterna through natural law. The only rational knowledge we can have is of empirical things, not of deeper essences in nature.

The concepts we use to describe essences are only names (nomina). 88

Voluntarism

Many thinkers regard the ascendancy of the voluntarist position of the nominalists as an important precursor to the purely mathematical view of nature developed later in the thought of Descartes and Newton.

The realist world-view of Aristotle and Aquinas held that movement in nature was determined by intrinsic relationships based on inherent qualities in things.

The voluntarist world view held that all movement in nature was the result of external forces (such as God's will) operating on things. Thus, God remained free to change the physical laws of nature (as happened in the miracles described in the Bible).

The voluntarist tradition made possible a disenchanted view of nature which harboured no intrinsic qualities. Science no longer had to study the intrinsic qualities (or final causes) of things, but could describe movement in purely mathematical terms.89

Disenchanted NatureThis new scientific or disenchanted view of nature was one from which no meaning or ethical guidance could any longer be derived.

Knowledge of nature enabled us only to control nature. The modern scientific world-view entailed the radical negation of nature as a source of moral value, and effectively brought the Greco-Roman or classic tradition of natural law to an end. Faced with the mechanical and morally disenchanted view of nature, the absolute freedom of the subject to act in the disenchanted natural world, that is, her technological sophistication, became the only source of her dignity and measure of her progress. At the same time, the view emerged that the essence of modern law was to be understood as a closely coordinated system of subjective rights. It is in this way that Ockham's critique of Aquinas marks an important moment in transition from classic to modern natural law thinking.90

Nominalist impact on Law

The first signs of the legal impact which the nominalist revolution eventually exerted could be seen in the legal philosophy of Hugo Grotius (1583-1645).

Grotius turned voluntarism into the claim that ownership (dominium) is the wilful, i.e. not naturally given, extension of suum (the objective or natural division of things in the world) by agreement or contract.

Ownership as a limited but natural share in the common world is thus transformed into an unlimited subjective power (potestas) or absolute right. Ownership, in this sense, eventually became the paradigm of all subjective rights, understood as the unrestricted and exclusive control over the object of that right.

However, it was in the thought of a contemporary of Grotius, Thomas Hobbes (1588-1670), that the dramatic change in moral and natural law thinking, brought about by the new scientific understanding of nature, became clearly apparent.91

THE MODERN RE-STATEMENT OF NATURAL LAWIt was inevitable that the radically new way in which nature was approached by the modern scientists had to lead to an equally radical change in the way the law of nature was understood.

Nature could no longer be regarded as a source of normative criteria and the rational mastery of nature became its substitute.

The human sense of the good life changed from a life lived according to nature, to a life lived in control of nature. 92

Thomas Hobbes

One of the first and most spectacular attempts to apply the new mechanical and completely secularized view of nature to law and politics, is that which Thomas Hobbes undertook in his influential work, Leviathan.

The opening lines of the book read as follows:

Nature (the Art whereby God hash made and governs the World) is by the Art of man, as in many other things, so in this also imitated, that it can make an Artificial Animal [i.e. engines that move themselves] ... Art goes yet further, imitating that rational and most excellent work of nature, Man. For by Art is created that great Leviathan called a Commonwealth, or State which is but an Artificial Man.93

State of Nature

With this opening statement, Hobbes takes up the challenge to prove man as equal to God in his ability to create and maintain order in a world otherwise devoid of meaning. The creative act by which the Leviathan is brought into being takes place in a natural world or state of nature devoid of any moral meaning and direction.

Hobbes describes the state of nature as a state of 'war of all against all' and the life of human beings in that state as 'solitary, poor, nasty, brutish, and short'.94

The state of nature is completely devoid of justice, and the categories of right and wrong do not apply, as there is no sovereign power to impose a law which would define them.

There is for the same reason no property or ownership. Distribution is regulated by the principle 'to every man that which he can get; and for so long, as he can keep it'.

Question:How is it possible in this world devoid of any normative content, to still speak of a natural law?95

Hobbes's Natural Law:

It is possible to get out of the a-moral state of nature by a combination of human (a) passion and (b) reason.

The PASSIONS in question are fear of death and the desire to live peacefully. The REASON in question is purely instrumental and sets out the necessary steps to survival and peace. The totality of these rational steps is what Hobbes calls the natural law.

The natural law, as Hobbes understands it, thus prohibits everything which could lead to a disturbance of the peace and a return to the state of nature 96

0n the basis of this general definition Hobbes deduces a large number of specific injunctions or natural laws The first law of nature is to seek peace but, when necessary, to defend yourself by all the means you can. The second law of nature is to enter into a social contract in order to mutually restrict the power of each person.

From these two injunctions follow a host of others, including: that covenants should be obeyed; that gifts should be received in gratitude; that nobody should seek revenge; that no person should engage in hate speech; that no person should take undue pride in herself; that disputes should be referred to arbitration; and that no person should serve as her own judge. 97

How Natural are the Principles?

These precepts can be described as 'natural' because they are all conclusions derived from the premise that everybody has a natural inclination to survive.

They are properly called 'laws' even though they are deduced by reason because they are also commanded by God 98

Social Contract Idea

The second law of nature (social contract) is of particular importance to Hobbes.

In terms of the contract every person confers all her power and strength onto the State, which, from that moment onwards, has absolute or sovereign power over all its subjects, including the sole prerogative to define the Right or the Just.Nothing remains here of the classic natural law tradition in terms of which the objective foundations of the Right were contained in a natural order of proper relationships and prescribed functions.

Hobbes simply equates the Right with the decision or will of the Sovereign, which he significantly calls a 'Mortall God'.99

Natural Law as Survival Manual?

With Hobbes, natural law does not even provide any guidance about the content of the Right. It has become no more than a survival manual containing all the technical prescriptions for a peaceful social existence.

Instead of pointing the human subject to her proper place in nature, the natural law has become the isolated and self-serving subject's blueprint for the control and mastery of nature.

Hobbes's theory of the state still remained a theory of the (universal) Right. It is only in the work of John Locke (1632-1704), that the transition from the classic idea of the Right (dikaion or jus) to the modern idea of subjective rights is completed.100

JOHN LOCKE

Locke attempted another re-interpretation of the natural law. He combines natural law with the new theory of subjective rights already developed by Grotius and others. The result is a theory of inalienable or natural rights.

In this form Locke could reassert the old idea that the natural law provided an objective moral limit to the power of the state and its positive laws. It was also in this form, as a theory of rights, that modern natural law found its most influential and enduring formulation.

Locke presented his theory of the limited state also as a social contract theory.101

Lockes state of nature

Locke describes the state of nature as a state of perfect freedom and equality, but not as one devoid of law or rights.

For Locke, the natural law provides persons living in the state of nature with natural or pre-political rights to life, liberty and property.

These rights are in no way dependent on the existence of a sovereign lawgiver, as Hobbes had claimed, but are an intrinsic part of human existence as such. 102

The need for Social Contract

However, in the state of nature there is no central authority; hence, every person has the right and power to execute the law of nature by punishing offenders and exacting reparations.

The danger of human bias and self-interest, the absence of impartial judges, and the lack of an executive power further complicate this process.

There comes a moment, therefore, when those living in the state of nature find it of necessity to enter into a social contract and set up a civil government.103

Role of Civil GovernmentFor Locke, the sole purpose of this civil government is to provide remedies for the three problems encountered with the enforcement of the natural law in the state of nature. This means that

the civil authority is bound to govern and exercise power through clearly defined laws, through impartial judges, and through the effective execution of the laws and judgments;the legislative power of parliament is limited by the law of nature, which does not terminate with the creation of civil society, but is on the contrary made more secure by the establishment of a central enforcement agency.104

Humanist Natural Law?

In Locke's theory of natural law the voluntarist assumption about the absolute freedom of the will against a nominalist world devoid of any inherent moral essence found its fully humanistic restatement.

Thus we arrive at the classic liberal (and male) vision of social life as the exercise of subjective rights, i.e. as the essentially negative interactions between isolated individuals wielding absolute power within legally circumscribed domains.105

THE DECLINE OF NATURAL RIGHTS AND THE TRIUMPH OF HUMAN RIGHTS

Contributing factors:

the industrial revolution;the rise of the nation state;unrestrained empire-building;the rise of the empirical social sciences;the challenge of positivism; increasing demands for large scale social engineering;the steady decline of the doctrine of natural or inalienable rights.

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Towards the end of the 19th century, progressive thinkers in favour of social reform thus began attacking natural law thinking as a reactionary force in modern society. The 'same gospel which was once the cry of the revolutionary [had become] the clich of the conservative who wished to check attempts on the part of government to remedy inequalities'.

Alf Ross - modern natural law is, 'like a harlot, . . . at the disposal of everyone', both conservative and revolutionary. 107

Whatever Ross's views of the matter might be, the American experience with the doctrine of natural or fundamental rights is of decisive importance for any attempt to understand recent developments in natural law thinking.

American Declaration of Independence (1776)

The first and second paragraphs of the American Declaration of Independence (1776) set out the 'laws of Nature' and the 'self-evident truths' which justified the American rejection of English rule. These natural law truths were distilled directly from the work of John Locke and included: that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that to secure these rights governments are instituted, and that whenever a government becomes destructive of these ends, it is the right of the people to alter or abolish it and institute a new government.108

Declaration of the Rights of Man and the Citizen (1789)

The French revolutionaries issued a Declaration of the Rights of Man and the Citizen (1789) which highlighted the radical impact which the modern natural law doctrine had in the dying years of the old feudal order. The French declaration starts with the bold assertion that ignorance, forgetfulness or contempt for the rights of man are the sole causes of public misfortune and governmental depravity, and therefore that the French People have resolved to expound in a solemn declaration the natural, inalienable and sacred rights of man. The second article of the declaration states, after Locke, that the aim of every political association is to preserve the natural and inalienable rights of man. These rights are those of liberty, property, security and resistance to oppression.109

CRITIQUE OF MODERN RIGHTS BASED NATURAL LAW THINKINGMid-20th century saw a return to the classic natural law tradition, and in particular to elements of Thomism.

Some writers see this as one of the strands within the broader critique of the liberal rights paradigm.

Thus we are increasingly presented with reviews of the contrast between the natural law tradition and the modern tradition of natural or human rights, on the one hand, and studies mapping the historical gap between the two traditions, on the other.

The recent turn to Thomism is closely related to both the republican and communitarian critiques of classical liberalism.

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These critiques seek to disrupt the priority given by liberals to the right (read rights) over the good. Different formulation on the relationship between the good and rights:

Republicans favour a political conception of the good. That is, they wish to replace the idea of natural or pre-political rights with the idea of rights as the means of deepening political debate and fostering relationships. The communitarians favour a traditional or customary conception of the good, and completely subordinate the rights of individuals to the substantial good of the community.111

Objective, universal or absolute (ie natural law) status of the Good

Recent natural law thinkers like Finnis and Van der Walt make a further claim that rights should be approached from the perspective of the good, but are set apart from their republican and communitarian counterparts by the fact that they claim an objective, universal or absolute (ie natural law) status for the good.

They therefore resist the relativism implied in the republican attempt to reduce the good to political dialogue, or the communitarian attempt to reduce the good to the tradition or customs of a given community. 112

JOHN FINNIS AND THE NEW (OLD) NATURAL LAW THEORY

The following statement contains nearly all the elements of Finnis's natural law theory.

'There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy'.

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The Human Good

Finnis's starting point is not with rights recognized by law, but with the way in which human goods can be secured.These forms of the good can only be secured if the demands of practical reasonableness are satisfied. In order to secure the human goods in question, it is therefore necessary that we know both

what those basic good are, and how to reason practically about their realisation. 114

The task of securing the human goods is complicated by the fact that some of the basic goods and some of the demands of practical reasonableness can only be met through law.

This suggests a complex relationship between morality (the process of securing the human goods through practical reasoning) and law; or, to put the same point differently, between natural law and natural rights.115

Question:

Does this mean that the legitimacy of the law depends on its ability to contribute to the realisation of human good(s), as claimed in the classic natural law tradition, and not on its ability to protect certain subjective rights, as claimed by Locke and the modern natural law tradition?116

Finniss Natural Law principle of reasonableness

Following Aristotle and Aquinas, the natural law Finnis has in mind is a method through which human good (or the Right) can be discerned and realized.

It is not a code of higher rules or rights in the way natural law lawyers of the classical school had come to regard.

As Finnis uses the term, it is not 'law' in the modern sense of a code of rules or rights, nor is it 'natural' in the sense that it is derived or deducted from the nature of the cosmos or human beings.

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118In his re-interpretation of the writing of Aquinas, Finnis argues that the normative conclusions of natural law are not based on observation of human or any other nature.

Rather, they result from a reflective grasp of what is self-evidently good for all human beings and from a practical understanding gained by experiencing ones own nature and personal inclination.

The principles of natural law are called `natural' because they 'have their force from their reasonableness, not from any originating acts or circumstances'.

These principles are natural and unchanging because they are self-evidently rational or reasonable.

119Finnis argues that objective knowledge of what is right is made possible by the existence of what he calls basic forms of human flourishing, which are objective goods, distinct from any moral evaluations of goodness.

These are generally things which, for most people, make life worthwhile, and they are self-evident that is, they would be obvious to anyone acquainted with the range of human opportunities.

120For Finnis, thus, natural lawis a set of principles of practical reasonableness to be utilized in the ordering of human life and human community in the process of creating optimum conditions for humans to attain the objective goods. These conditions constitute the common good.

The natural law method for securing the basic human goods contains two distinct sets of general principles.

First, knowledge of the basic human goods. Second, an understanding of what practical reasoning requires when it comes to taking practical decisions about those goods.

Together these principles set out the procedure or method which should be followed, to secure the basic human goods.

This method cannot be altered, and it remains universally valid, even if it is not followed by decision makers. 121

Finnis claims that we can discover what this method is by merely looking at the way we ourselves reason about practical affairs. When reasoning about practical affairs, we understand ourselves to be free and to act purposely. We act for the sake of something.

The first thing we ask is 'Why must this be done?' If this question is pursued to the end, we eventually reach a point beyond which it would be impossible to provide a better reason for acting. These bottom-line reasons are what Finnis calls the basic forms of the human good. These basic goods are self-evident and cannot be demonstrated or inferred.122

Finniss Seven Basic Goods or Reasons for Acting

For Finnis, there are seven basic goods or bottom-line reasons for acting:

life (because I want to stay alive or be healthy), knowledge (because I want to know more), play (because I enjoy the performance), aesthetic experience (because it is beautiful), friendship (because I want to live in peace with others),practical reasonableness(because I want to be authentic and act with integrity, ie have peace of mind),and religion (because I want to be at peace with God).

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This list contains all the basic goods and defines the basic aspects of human well-being. Each good is basic; none can be reduced to the other and there is no obvious hierarchy between the goods.

Examples:

In a life dedicated to knowledge or sport, art may become secondary. In a life dedicated to art, friendship or health might suffer the same fate. In this way every person establishes for herself a subjective order of priority amongst the basic goods. This priority is more or less stable and constitutes that specific person's understanding of the good life. How are decisions of this sort taken? How do we decide how the various goods are to be combined and pursued in everyday life? Finnis answers that our pursuit of the basic goods is structured by the requirements or principles of practical reasonableness.

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The importance of practical reasonableness lies in the facts that:

all basic values are worth pursuing; and

b)life is too short to enable us to pursue each and every value to the maximum extent.

Hence we need to make choices concerning commitments, projects and actions.]125

Basic values and Pleasures

Finnis maintained that the basic values cannot be reduced to a more fundamental value such as pleasure. Finnis made the Aristotelian argument that virtuous persons pursue the basic values not because they lead to pleasures, but because engaging in them is the highest form of pleasure. Utilitarians will say that we pursue friendship for the pleasure we get from it. Finnis' point was that although many people do seek friendship for pleasure, what makes friendship good is not the pleasure but its self-evident rightness. He distinguished the reasons why people happen to be good from the reason why something is good. 126

Principles of Practical ReasonablenessThe first or most fundamental principle of practical reasoning - good is to be done and pursued (and evil avoided). This principle prohibits pointlessness in life.

It could also be stated as the requirement that everybody should pursue a rational and coherent plan of life. The moral life dedicated to the pursuit of the human good(s) cannot be squared with the life of a drifter who lives from moment to moment. The basic human goods should be pursued purposefully and rationally. 127

In addition to this first principle, Finnis identified eight other requirements of practical reasonableness (2-9). In order to take rational decisions about the basic goods one must: (2) not harbour arbitrary preferences amongst the basic goods and reject some out of hand as not valuable; (3) remain impartial and not harbour arbitrary preferences among persons; (4) remain detached from your own projects and not become fanatical; (5) be creative and committed; (6) be efficient and maximise preferences with each decision; (7) not take the end as a justification for the means and thus take decisions which would directly violate (as opposed to merely not furthering) any basic good; (8) favour and foster the common good of one's community and be just wh