Natural Law

For over twenty-five hundred years there was only one philosophy of law (at least in Western
Civilisation which is what we study exclusively in this class). This was Natural Law. From
Socrates to Aquinas and on, philosophers were concerned with finding the perfect set of laws
to govern humanity. Essentially, the goal is to distil a set of rules which govern every
situation. Can you think of one law which does this? (Perhaps the Golden Rule?) What about
ten laws? Or a hundred?

Suppose I told you that the school issued a decree at 11 am this morning that all students are
to wear red neck ties, and that since none of you wore them to tutorial, you are all suspended.
Your first reaction would probably be to say, "Hey, that isn't fair! That goes against all
principles of natural law!" So you have an idea in your head about what a fair law would be.
But how do you right this down? Should it be a rule that a person should not be penalised for
failing to obey a law that was only laid down that morning? Perhaps that is too narrow. (And
it comes into conflict with the rule that ignorance of the law is no excuse.) How about stating
it as a rule that no-one should be penalised retroactively for an act which predated a law? In
other words, since you weren't in breach of any rules when you got dressed at 8 am this
morning, you should not be penalised under a law passed at 11. That seems reasonable.

So, one way to go about writing the perfect laws might be to think inside yourself of how you
would want to be treated in various situations. This is almost exactly the process that many
natural law philosophers go through. They believe that natural laws can be reasoned from
within -- they are not found externally. Usually they start by defining natural rights. The laws
are meant to protect the rights. Hence, if we define that the right to life is a fundamental
human right, then one needs a law "Do not kill".

(Note that these rules are not meant to be strictly a legal code, but rather a moral code. There
are many administrative matters which have nothing to do with this type of law, e.g., what
side of the road one should drive upon and what the maximum speed limit should be in a
district.)

Of course a major problem is that principles of fairness and morality vary so much from
person to person and around the world that it is hard to see how there could be one standard
to apply to all humans. Think about how strongly people feel about the definition of
marriage. Should it include polygamy? Common law marriage? Same sex marriage? One
way to get around this is to frame natural rights so that they can be interpreted according to
local custom, "e.g., a right to a family life." This is what the United Nations has done in
getting hundreds of countries to agree on a list of principles.

Of course, as stated, this is not the end of the matter. Problems still arise in
balancing fundamental human rights against each other. What happens when my right to
privacy is in conflict with your right to freedom of speech? A defamation law suit. Is my right
more important than yours? And what principles should you use for interpretation? In fact,
natural law has been used to support both liberal and conservative theories and many
different kinds of ideologies. The Scandinavian Realist Alf Ross once said, "Like a harlot,
natural law is at the disposal of everyone." This was what led the positivists to try to lay
down strict definitions of law so that there would be less room for judicial
interpretations based on individual judge's ideas of morality and propriety. However, after the
atrocities of World War II, natural law had a revival that continues to this day. What we have
in our legal system today is a hybrid of natural law and positivism -- the ideas which govern
our society are codified and you can take them to Court.

The Social Contract Theories

At this point in our study of natural law, it is useful to have a brief introduction to the social
contract theories. These go hand-in-hand with natural law and form much of the basis for
what came later, even though some of the philosophers were not primarily concerned with
law. The social contract theory is essentially that each citizen who seeks to reap the benefit of
living in the State should be subject to the rules of the State.

Socrates
Socrates said that he had agreed to be bound by the laws of Athens and had reaped the
benefits of this agreement. To that end, he felt he also had the burden of obeying the laws
even if it meant willingly drinking poison after he had been condemned to death. He is
considered the first of the social contractarians, and is one of the few to actually speak about
signing the contract himself.

Hobbes
Hobbes felt that before humans signed the social contract, they lived in a state of nature,
where life was "solitary, poor, nasty, brutish and short". He thought that there was perpetual
war of all against all, with humans free to rape, pillage and murder. Eventually, humans came
together and agreed that each would give up some of their rights in exchange for the others
giving up those rights. For example, each would give up his right to kill. The peace would be
kept by the government. Hobbes' idea of government was totalitarian -- any abuses by the
government had to be accepted as the price of peace.

Locke
Locke, on the other hand, felt that life before the contract was absolute bliss -- a garden of
Eden. But humans lived in a state of fear that others would take their life, liberty or property
(where property is defined as the product of one's labour). Humans therefore formed the
government to protect them. Instead of each having to protect himself, the government had
the power to prosecute, judge and punish offenders. For Locke, governemnt had duty to treat
citizens fairly, or else they were entitled to overthrow. Locke's philosophy was a major
influence on Thomas Jefferson and the other framers of the American Constitution and
Declaration of Independence.

Rousseau
Rousseau posited that there were certain human rights, but government could infringe on
those rights so long as it represented the general will of the people. Rousseau was therefore a
democrat (govt should represent the general will) and totalitarian (govt could do anything it
wanted).

Rawls
Rawls is NOT a natural lawyer, and can be found instead under the section "Pure Theories of
Law" in the Lloyds. However, his theory fits into this section. Rawls deals with the question
of how one would know which laws were best. He envisions a group of people behind a veil
of ignorance. Those people are charged with making law for a society. They know that after
the veil is lifted, they will be living in that society, but they do not know who they will be. (It
is like writing a program for the Enterprise holodeck and jumping into it without knowing
what character you will be playing.) The group would come up with the best laws for all
situations. For example, they would not come up with laws to favour the rich, since they
might come out from the veil as poor. Similarly, it might not be best to create a welfare state
since they might come out as rich! Ditto for laws relating to gender, religion and sexual
orientation.

Grotius
We will just briefly mention Grotius first (even though he came after Aquinas). He is
considered the father of secular natural law. He believed that natural law would be the same
even if there was no God.

Note that he was not saying that there was no God. Rather, he was unhinging natural law
from religion. He felt that where there was a law such as "do not kill", the reason for the law
was not "Because God said so". Rather, there are good reasons for not killing which have
nothing to do with religion.

Aqunias
Teleology is the philosophy that there are final causes. An acorn has as its final cause an oak
-- it is meant to be an oak, not squirrel food or decoration. similarly, mankind is supposed to
have a purpose, something that it would achieve if not hindered. In the same vein, some
philosophers believe that you cannot understand a part without understanding a whole. [E.g.,
I hold up a pen cover. What is this? It makes no sense unless you know what a pen is.]

St. Thomas Aquinas was one who believed that mankind was supposed to have a purpose,
and also that man was part of a societal whole.

He fit natural law into the context of church law. His theory is that God has a law for the
universe -- lex aeterna. Man can understand and advance the part of this law that relates to
man, the law for human flourishing -- lex naturalis. There is also law for human salvation as
revealed in the scriptures -- lex divina. Finally, man must make laws for society to function
and to solve day-to-day problems -- lex humana. This last is necessary because it is
sometimes necessary to force selfish people to do what is right. Aquinas argues that unjust
laws lose their power to bind, but in some cases should be obeyed rather than risk civil
disorder. [Corny joke for the day -- you will notice that he leaves one lex out of his list: Lex
Luthor. :)]

Finnis
Finnis is one of the most influential modern day philosophers.

He attempts to take natural law back to what he saw Aristotle and Aquinas portraying, and in
fact restates their theories.

He believes that natural law is the set of principles of practical reasonableness in ordering
human life and human community. He sets up the proposition that there are certain basic
goods for human beings, which he feels that every reasonable person will agree with: 1)Life,
2) Knowledge, 3) Play (peformance which has no point beyond the performance itself), 4)
aesthetic experience (beauty), 5) sociability (friendship), 6) practical reasonableness, 7)
religion (questions of cosmic order).

Practical reasonableness is being able to use one's own intelligence to choose actions,
lifestyle and character. It has nine requirements: 1) active pursuit of goals, 2) coherent life
plan, 3) no arbitrary preference among values, 4) no arbitrary preference among persons, 5)
detachment and commitment, 6) efficiency within reason (the limited relevance of
consequences), 7) respect for every basic value in every act, 8) requirements for the common
good, 9) following one's conscience.

For Finnis, these goods relate to life in a community, and unjust laws lose their power to bind
because they go against the common good.

Similarly, Finnis believes that human rights are a fundamental component of the common
good, but that they are subject to or limited by each other, and by other aspects of the
common good. His list of natural rights includes: 1) not to be tortured, 2) not to be lied to, 3)
not to have one's life taken as means to any further end, 4) not to be condemned on
knowingly false charges, 5) not to be deprived of one's capacity to procreate, and 6) the right
to be taken into respectful consideration in any assessment of what the common good
requires.

What are the criticisms of Finnis?

First: he argues that the list of basic goods is self-evident, but he is only able to show this for
one of the goods -- knowledge. His argument is that it is impossible to argue that knowledge
is bad, i.e.,: Assume you say that knowledge is not good (ignorance is bliss). How do you
know? Because you have knowledge. Therefore knowledge is good.

However, Finnis is only able to do this for knowledge. He is not able to use similar reasoning
to show why the other goods are "self-evident".

Second: is knowledge always good? Perhaps it needs to be put to good use.

Third: his lists leave open many questions. For example, if the law is "not to kill" or "not to
kill the innocent", what does this mean for abortion? For capital punishment? For the
execution of Bin Laden without a trial?

The is/ought criticism

Critics believe that by using "internal reasoning", natural lawyers obtain "ought" from "is".
The critics say that natural lawyers reason as follows:

1. All animals procreate

2. Humans are animals
3. Therefore, humans should (ought to) procreate

The critics say that this is false logic. Is this criticism justified? Do natural lawyers really
reason this way? Think of all persons (whether natural lawyers or not) who say that
contraceptions/abortions/homosexuality are bad because they are unnatural, they go against
nature. Have they derived "ought" from "is"? What if they are missing information? What if
in nature only the good-looking animals procreate? How about the fact that some animals are
polygamous and others commit incest? Does this mean that humans should too? How do we
know what laws are best for humanity?
The Constitution
Look at the preamble of your Constitution. The Barbados Constitution states that a group of
citizens, having settled the island and declared their independence from England, agreed on
certain fundamental rights and freedoms. The preamble continues that the citizens affirm
their belief in the rule of law. Sounds rather like Locke's theory. The fundamental rights and
freedoms are enumerated in Chapter III. They are similar to the ones listed by Finnis. Your
job is to compare how the rights work in Finnis's theory with how they work in our Caribbean
cases. For example, are Finnis's rights absolute? He says that they are limited by other rights
and by greater societal good. Are the rights absolute in our law? Is there an absolute right to
life? How can we have a death penalty? Is this because it is necessary for the "greater societal
good?" Give a brief description of how the Courts handled these issues in Boodram and
Boyce, for example. How do the Courts balance the rights of one individual against those of
another.

The Constitution describes the composition and function of the government. The
government's side of the contract is to make laws which are as close as possible to natural
law. Does this really happen? What happens when citizens feel that the government itself is
violating their rights? Constitutions contain savings provisions which preserve pre-
constitutional laws and which therefore have the power to contravene human rights (death
penalty cases). On the other hand, the concept of judicial review permits citizens to apply to
the Court to scrutinize government's laws and actions. How do these two themes play out in
the natural law theories?