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WEEK 4 NATURAL LAW THEORIES Introduction to Natural Law Historically the major rival to positivist accounts of law has been 'natural law'. Natural law is famously identified with the slogan 'lex injusta non est lex' [an unjust law is not a law], which appears to be a claim about the validity of individual laws. This is the way that some natural lawyers understand their critique of positivism. Those who do may be regarded as anti-positivists. But there is a different way of understanding the concerns of natural law. Indeed, one of the leading contemporary exponents of natural law, John Finnis, argues that this conception, rather than an anti-positivistic one, is truer to the natural law tradition stretching back to Aristotle, Cicero and Aquinas. The argument here is that legal systems can only be properly understood if we grasp that the point or function of legal systems is a moral function. This natural law critique argues that a positivist conception of legal systems is radically incomplete, and hence distorts our understanding of the nature of law. We will consider two lines of analysis which build upon Hart's argument that to understand law we need to adopt the 'internal perspective' and claim that this leads to the view that the internal perspective is ultimately a moral perspective on law. The twist in this type of natural law is that it can be agnostic on positivism's source-based account of legal validity. Indeed it may even be that the moral function of law depends upon a source-based account of legal validity, so that rather than being complete rivals, natural law is compatible with one of positivism's crucial tenets.
General Reading Primary texts
•• Finnis Natural Law and Natural Rights, esp. Chs. 1, 2, 10 and 12: Chapter 1
There are certain human goods that can only be secured through legal institutions and requirements of practical reasonableness that only those institutions can satisfy.
He says that in describing law, it is impossible to define whether something is law in every single scenario (as opposed to politics, discretion etc) and prefers simply to focus on the central cases. This was Aristotle's view.
He characterises the descriptive approach of Hart/Raz as taking "practical view" i.e. that the theorist must assess the importance and significance in similarities or differences of the subject matter by those whose concerns or decisions or activities constitute the subject matter (i.e. look from POV of judges or politicians). Finnis says this approach is unsatisfactory as it amalgamates the differing IPOVs of different actors in the field and insists on attributing one IPOV to all of them, whether they are anarchists or model citizens. He also believes that Hart's concession that people might be motivated to comply with the law by calculations of self interest "waters down…the function of the law as an answer to real social problems".
Finnis says that a philosopher cannot give a theoretical description and analysis of a social phenomenon unless he partakes in an evaluative exercise too. He has two related
points here, firstly a human artefact like law constituted by human actions and practices can only be fully understood by reference to its point. Secondly Finnis believes that a theorist cannot describe without evaluation because the subject matter (law) doesn't come neatly demarcated from social life and practice.
Instead Finnis argues that we should take the viewpoint that we should view IPOVs as at least presumptively concerned with "practical reasonableness", which is one way of defining morality. The evaluations of the theorist himself are "indispensable" for choosing concepts to use in the description of aspects of human affairs such as law or legal order. Thus Finnis takes an evaluative descriptive view of law (unlike Hart's value free descriptive approach). Finnis denies that this means descriptive theories will be merely the whims/prejudices of individual commentators, since we engage in a disciplined acquisition of knowledge by reasoning.
He says he is not deducing descriptions from evaluations of vice versa, but merely that describing without evaluation will prevent us from seeing which descriptions are really "illuminating and significant".
Finnis defines his version of natural law as saying (1) (i) that there are basic goods necessary for human flourishing; (ii) there are basic methodological requirements; and (iii) there are general moral standards; (2) These requirements justify the exercise of authority in the community and justify the obligatory force of laws; (3) The requirements demand that law is made in compliance with the rule of law and human rights, deriving from the requirements. (4) A law can be regarded as "radically defective" (but NB not invalid) for want of compliance with the above requirements.
He says the portrayal of natural lawyers by Raz/Kelsen that a law has to be moral in order to be valid and is unconcerned with a legal test of validity is wrong: Aquinas' view was that for a law to be valid it has to comply with the legal criteria for validity and must be not be immoral. That is not the same as saying that natural law unconditionally surrenders tests of legal validity for those of moral validity. Also natural law is concerned with practical reasonableness, NOT idealism.
He also denies that natural law depends on everyone sharing the same view of morality (as Hart contends). Rather, it requires that a law is not immoral objectively, regardless of whether or not people accept that objective moral understanding (they must still comply with laws that satisfy it and not with those that do not).
Does natural law fail to distinguish between "is" and "ought"? No: What is practically reasonable is a fact deduced from empirically observing human behaviour- it is NOT saying that this "ought" to be how laws are made and therefore that laws ARE only valid when made thus. The basic human goods and practical reasonableness are self-evident/presupposed and therefore are not susceptible to the argument that one is drawing an is from an ought. They are innate and not inferred from or demonstrable from any other thing.
Law's claim to supremacy is implausible unless it protects its subjects against threats which they would otherwise face e.g. invasion. Law's authority depends on justice or at least its ability to secure justice.
Legal sanction is a human response to human needs. Punishment therefore seeks to restore the "distributively just balance" between the law-abiders and the criminals.
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