[2.2.] Natural Law Theories.

 

Again, natural law theorists maintain the following:

 

(NL1) The human activity of lawmaking must meet certain moral standards in order for it to have law as its outcome [denies the Social Thesis]

 

(NL2) The question whether a principle is a law cannot be separated from the question of that principle/law’s morality. [denies the Separability Thesis]

 

Thus, they reject legal positivism, according to which:

 

(LP1) The Social Thesis: whether a rule or principle counts as law in a given society is a matter of nothing but social convention; more specifically, the law for a given society is just whatever has been enacted by the lawmaking agency of that society.

 

(LP2) The Separability Thesis: law is completely separate from morality; more specifically, the question whether a principle is a law is separate from the question of that principle/law’s morality.

 

Both NLT and LP hold that laws can be morally evaluated, i.e., that positive (enacted) law can be evaluated against a non-legal, moral standard. The difference between them is that, according to LP, if positive law fails to meet that moral standard, it is still law.

 

A crucial question for anyone, including positivists, who admits that positive laws can be morally evaluated is: “What is the moral standard that we should use to evaluate law?”

 

NLTs say that the standard is “natural law” – but not all NLTs agree about the origin or the content of natural law. We will discuss a representative of traditional natural law theory:

·         St. Thomas Aquinas

and a representative of modern natural law theory:

·         Lon L. Fuller.[1]

 

 

 

[2.2.1.] St. Thomas Aquinas.[2]

 

·         1225-1274; Italian

·         Roman Catholic theologian of the Dominican Order

·         heavily influenced by Aristotle

·         was canonized (made a saint) in 1323

 

 

[2.2.1.1.] Aquinas’ Definition of Law.[3]

 

law (defined by Aquinas): “an ordinance of reason for the common good, made by him who has the care of the community, and promulgated.”[4]

 

We can understand this definition to be proving four conditions, each of which is necessary, and all of which are jointly sufficient, for a principle to count as a law:

 

1. “an ordinance of reason”: law is essentially an appeal to one’s reason, to one’s mind, to one’s capacity to understand and deliberately base one’s actions upon that understanding.

 

2. “for the common good”: the purpose of law is to promote the well-being of people living together in a community, and this is one way in which it appeals to our reason, i.e., why we find it rationally compelling.

 

3. “made by him who has the care of the community”: necessarily, a law is enacted or “posited” [from the Latin “positum,” which means put in place] by a sovereign ruler or body, someone whose responsibility it is to take care of the community.

 

4. “promulgated”: a law must be made public; a principle enacted by a sovereign cannot be law if it is kept secret, even if it is intended to benefit society. [We will see something like this idea in the contemporary natural law theory of Lon Fuller.]

 

Aquinas mentions a further characteristic of law, even though he does not include it in the definition that he gives: law must be coercive, that is, it must be backed up with force and threat of punishment if it is not obeyed.

·         This is not part of the definition of law, since it is not a necessary characteristic of law. In a world in which everyone is perfectly virtuous (i.e., in which all people are saints), laws would not need to be coercive, since everyone could be counted on to follow them. Still, there would be laws, principles meeting the four conditions he sets out in his definition.

 

 

[2.2.1.2.] Four Types of Law.

 

Aquinas distinguished four kinds of law: eternal, divine, natural, and human (quotations from p.59)

 

1.       eternal law: “governs the universe according to Divine Reason and establishes an objective order to the physical world and a reality to the moral world”

 

2.       divine law: “God’s law revealed through the Scriptures.”

·         It directs human beings in the achievement of their supernatural purpose, the attainment of the vision of God.

 

3.       natural law: “a bridge for rational creatures between eternal and human law. It enables humans to distinguish, through the natural light of reason, good from evil.” It is nothing other than “the rational creature’s participation in the eternal laws.”[5]

·         It is accessible to humans by reasoning.

·         It directs human beings in the achievement of their natural purposes, including biological life, reproduction, knowledge, social living, and rational conduct.[6]

·         Natural law is both descriptive and normative...

 

descriptive (df.): a descriptive statement, or question, or theory, concerns how things actually are, not how they ought to be.

 

normative (a.k.a. prescriptive) (df): a normative statement, or question, or theory, concerns how things should be, how they ought to be, rather than how they actually are.

 

So, in other words, natural law says both how things actually are and how they are supposed to be. The idea is that things are as they should be when they are performing their natural purposes or functions.

 

Examples:

 

God created human beings with a number of specific functions or purposes. One those purposes is social living. God created us as social creatures who, as a matter of fact, have a natural inclination to want to be around others. Caring about others makes this possible, hence our natural inclination to care for other people. But in some people this natural tendency goes awry and they cease to act in ways that harm other people. So, our moral obligation not to harm others (the fact that we should not harm them) and to behave well towards them (the fact that we should do so) stems from the fact that humans actually are naturally socially creatures.

 

Another of our natural human purposes is reproduction. Sexual activity that has no chance of leading to pregnancy (e.g., sex using contraception, or homosexual sex, or masturbation) defeats this natural human purpose. So, our moral obligation not to engage in those sorts of sexual activities (the fact that we should not do those things) stems from the fact that humans actually are naturally reproducing creatures.

 

·         These examples help show how humans are supposed to be able to discover, by way of reason, what the natural law is. We need only think about what our natural purposes are, and then figure out what sorts of activities will promote those purposes and what activities will defeat or undermine them. The former are in accordance with natural law and are therefore moral; the latter are in violation of natural law and are therefore immoral.

 

 

4.       human (positive, enacted): made by humans “for the purpose of leading them gradually to virtue.”

• By reasoning, we can derive our positive laws from the natural law.
• If positive laws are not in synch with natural laws, then they are not genuine laws at all, but “perversion of law”:

 

As Augustine says, that which is not just seems to be no law at all. Hence the force of a law depends on the extent of its justice. ... Every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it departs from that law of nature, it is no longer a law but a perversion of law. (Summa Theologica, I-II, q.95 a.2)[7]

 

 

[2.2.1.3.] Deriving Human Law from Natural Law.

 

Human law is derived from natural law, in one of two ways:

 

1.       Natural law (NL) completely settles what the human law (HL) should be, e.g. NL tells us that there should be a HL against killing innocent people and exactly what the content of that law should be (“do not kill innocent people”). It leaves no room for human choice in making the law specific.

2.       NL tells us that we should have a certain sort of law, but allows room for human choice in the formulation of the HL. For example, NL dictates that we should have HLs governing driving, since not having such laws would have very bad consequences for us all and would therefore defeat lots of human purposes. But NL doesn’t tell us exactly what the content of those laws should be (drive on the left or right? what’s the speed limit? etc.)[8]

 

 

[2.2.1.4.] Unjust Human Laws.

 

Aquinas describes the various ways in which human laws may be unjust:[9]

 

1.       By being “contrary to the human good”

·         “in respect to the end [purpose, or motive], as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity [avarice, greed] or vainglory”

·         “in respect to the author, as when a man makes a law that goes beyond the power committed to him”

·         “in respect to form, as when burdens are imposed unequally on the community, although with a view to the common good”

 

2.       By being “opposed to the Divine good,” e.g., “the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law.”

 

If a human law is unjust, then a citizen has no obligation to obey it... that is, if the unjust law can be disobeyed “without giving scandal or a more grievous hurt.”[10]

 

 

Stopping point for Wednesday February 14. For next time, read pp.61-62 and 65-68.