#19669 - 5.D. The Relationship Between Law And Morality Natural Law - Jurisprudence

LECTURE(s)

• Natural law precedes Hart-Dworkin debate = it’s an ancient polemic

• NL assumes slightly different questions – e.g., why have law at all? Should we obey the law?

• Practical reason (PR) – reason for action (vs theoretical reason – reason for belief)

  • E.g., meteorologist may give you knowledge about weather, but not how to act

Practical Reason

• NL pertains to practical reason – reason that guides our actions

• If Finnis is right, NL is binding on us; we are capable as humans of ascertaining practical reason, and therefore, the value of law

• NL pertains ethics as much as to law – what does practical reason tell us? (first question)

  • By extension, we get to law, but NL theory doesn’t begin with law

• Origins of NL are religious – Thomas Aquinas; BUT idea of NL is within our grasp regardless of religion

• PR is reason for action, BUT that’s no different than understanding the way things are (Aquinas) – we understand how the world works (e.g., motion, gravity, etc.)

  • Just as we make true judgments about how things are, so we make true judgments about what to do

• Finnis ACK Aquinas, but his ideas stand regardless of religious dogma

  • For Aquinas, PHI and religion are intimately connected

    • Even if something is revealed (religiously), there can be both theological and PHI discussion

• Good to be done, evil to be avoided – we can apprehend what is in fact good

“New Natural Law Theory”

• Synderesis – capacity to apprehend what is good; innate capacity

  • We attain this capacity by inclination, reflection, etc. = we flesh it out

• For Finnis, this goes far beyond a formal notion (e.g., love thy neighbor); he isn’t content that some sort of categorical imperative – PHI reflection also reveals certain basic forms of human flourishing

  • These too can be discovered by reflection (synderesis)

• These are self-evident and indemonstrable = truth of these goods cannot be shown

• Basic goods/forms of human flourishing – life, knowledge, religion, work, practical reasonableness (PR) etc.

  • Odd for PHI to make very substantive claim about what is claim (Finnis does this)

• These goods are self-evident, but they’re also incommensurable + non-hierarchical

  • Cannot be put into a utilitarian calculus – they may conflict

• Practical reasonableness overarches these goods – PR directs us how to identify/achieve these goods

• Point is – no one can doubt/dismiss the value of these basic goods = they are self-evident

  • BUT his theory doesn’t depend on a precise list

The Common Good

• HOWEVER, the common good (CG) is crucial

• Basic goods = each of us individually has reason to value/act upon; BUT we live with others – we need to live a life where each of us can pursue BG = non-instrumental concern for other persons (Golden Rule)

• We are capable, via exercise of PR, to identify which types of behavior facilitate BG

• Laws – support the achievement of BGs; e.g., law that prohibits murder – support basic good of life

• Law doesn’t always get it right, but in “central case”, laws do facilitate attainment of BG

• The evils of not having law are obvious = law is a remedy against anarchy and tyranny

  • Law is by its nature morally valuable

    • RAT force of this claim is INDEP of content of law

Law in New Natural Law Theory

• Practical PHI – how should I act?; POL/legal PHI – how should I act in community with others?

• Law, like morality, gives us reasons to for action in community with others = subject matter of practical PHI

Natural Law Theory of Positive Law

• NL is ostensibly superior to LP – it has a theory of PL AS WELL

  • Does everything that LP does, and more – makes LP redundant

  • NL has a better theory of PL than PL – explains something that POS LP

• NL is a misnomer – it’s a theory of PL (in a certain sense)

• Law’s source-based character (LP claim) depends on SOC facts = critical in enabling CG

  • We don’t just need to trivially point out that law is source-based

    • It’s critical for a community to have source-based FOR the COMM to advance CG

• Positive law provides a reason for action and moral obligation to comply

• PL can be both social and NOR – presupposed by slogan “unjust laws aren’t laws”

  • If we look at idea of LP, it was invented by NL – LP is therefore true, but besides the point

    • All that LP does is focus on first part of exercise = law as a SOC fact, BUT completely neglects the second part – reasons for law as a SOC fact/reasons for complying with it

• Strong connection between POS law and morality

  • Common error – you have moral requirements, which are then translated to legal requirements

    • Law isn’t simply a copy of what morality requires

  • Two types of connection:

    • Derivation – restating requirements of PR in legal form; move from A to B is simple – in those cases, force of law comes not just from POS law

      • E.g., you don’t murder just coz the law says so

    • Determinatio – more indirect; requirements of PR aren’t fully determinant (i.e., how to act in every situation) = broad principles; law determines what would be indeterminate

      • More than one option may be available; NL provides framework for POS law – role of POS law is to make determinate those requirements of PR that are broad

      • This means that legal authorities have discretion – they select between options that might equally satisfy PR = arbitrary?

• Once we have POS law, we have a new obligation – simultaneously legal (coz established by authority) AND moral (although it’s arbitrary, based on PR ultimately, coz PR allows for discretion/arbitrariness)

• There’s a truth in LP, but it’s a limited one

  • There is something like legal validity – we can identify valid law if it came from authorities that are authorized; to that extent, we can identify the law without examining its merits

    • This is trivial, however = it’s insufficient – tells us nothing about what we should do

      • If we’re trying to understand SOC INSTs, it’s better to ask “why have it?”, rather than “what is it?”; by asking why, we get BOTH NOR and SOC aspect

A Presumptive Moral Obligation to Obey the Law?

• Moral obligation isn’t unconditional – it can be defeated sometimes = must accord with PR

  • BUT NL ACKs the authority of POL INSTs – law depends on facts to an extent

• Prime example – UNJUST laws

  • How can something that is a SOC fact as law not be a law?

• Some ways around it (unjust):

  • Still a law, but shouldn’t be obeyed

  • Shouldn’t be applied, but is still law

  • Isn’t law at all – loses quality of law itself

    • An unjust law is no law at all; lex iniusta non est lex

• Finnis – unjust laws are laws in a secondary sense (made by directives of authority), BUT not in terms of FOCAL meaning of law; e.g., bad ARGs aren’t really ARGs, or medicine that’s so bad that it’s not medicine

  • There can be DEFECTIVE instances of law, in other words

• Crucial in Finnis’ ARG – POS law still makes presumptive obligation to obey

• Finnis ARG works, however, only where a SOC is relatively just; not in rotten SOCs (where this presumption might not even arise)

• NOTE – CG is critical = non-compliance must be balanced contra CG

Methodology: The Point of Law

• Similar to Dworkin – human INSTs (unlike natural sciences) must be understood for their point; not DESCR

• Similarly, cognate concepts (e.g., justice) aren’t external to law, but are part of concept of law in focal sense

• The fundamental question – why have law at all? Gives us answer to why we need to accord to INSTs

• Reason to have law = CG requires it – not in utilitarian sense, it’s about securing conditions to pursue BGs

• Whole enterprise of POS juris is redundant – questions of law are always questions of reasons for actions

• HOWEVER, Hart sees this to an extent, BUT he doesn’t take it to its end

  • For Hart, it’s about survival in community – for Finnis, it transcends it = flourishment

• Two questions remain, however:

  • Why presume that central case of law is morally just?

    • There are deeply unjust laws – theory should account for all laws, not just PR-abiding

  • If we want to accept that ARG makes moral obligation to obey, at what point does injustice undermine this?

• Duke – is law just instrumentally valuable to achieve the stability of authority, or is there some more substantive moral ARG for obeying law?

READING(s)

Stanford Encyclopedia

• NL = law is BOTH a sheer SOC fact of power/practice AND a set of reasons for action

  • Presupposed by “unjust laws are not laws”

• Main question – how and why can law, and its positing LEGIS/judicial decisions/customs, give subjects solid reason for acting in accordance with it?

• NL – “source-based character” of law is crucial in its ability to advance good

  • The question whether law in its very nature is problematic has therefore been important since the outset; necessary, but potentially evil

• Natural in the sense of “REASON”

Finnis, “Natural Law and Natural Rights”, pp. 3 – 19

I – Evaluation and the Description of Law

I.I – The Formation of Concepts for Descriptive Social Science

• Some human goods can only be secured via INSTs of human law

• Actions/practices/habits are certainly influenced by “natural” causes investigated by methods of natural sciences, BUT they can only be fully understood by understanding their objective

  • These A/P/H vary greatly from one SOC to another – tough to make general descriptive theory

• Conceptions of law (jus, lex, nomos, etc.) are varied; even listing these various practices requires a principle of selection of items = juris is more than lexicography

• Austin, Bentham, show little awareness about selection; similar case with Kelsen

  • Selecting concepts for purpose of...