In this essay I will be discussing why and to what extent I agree with the position of the Natural Law Theory (NLT) that there are rationally identifiable moral principles which are embedded in the very fabric of human nature and which can and should universally be utilised to guide and evaluate the correctness of human conduct as well as the institutions of human society such as the legal system, its processes and its rules in contrast to the Legal Positivist Theory of law.
NLT is intrinsically linked with morality – in particular, the theory states that fundamental moral principles are built into the design of human nature and lie at the roots of consciousness. The distinctive mark of natural law we can know about this by reasoning alone, rather than by the authority of revelation. However, the most influential natural law thinkers have been Christians like St. Thomas Aquinas who stated that reason and revelation work together. Since natural law is part of the nature of things the knowledge of it is accessible to all men through reason apart from any supernatural revelation. God may be the source of natural law, but he has inscribed his moral law in nature and in man hence, there is no need for any further revelation outside of nature itself for the knowledge of the moral law. [footnoteRef:1] [1: http://darashpress.com/articles/natural-law-summary-and-critique#fnlink_4]
In this sense, natural law does not distinguish between law and morality. Finch states: NLT supposes that there is a ‘law’ (or set of principles) of nature according to the tenets and principles of which all things, including man himself, ought to behave.” For example, its natural for us to want to procreate (the “is” section), thus it should be encouraged in a society by law (the “ought” section).
Although NLT is not one set theory, thinkers from historic and contemporary backgrounds have appeared to agree on a number of themes consistent within their teachings. These are there are unchanging principles of law that exist in “nature” that define for man what is right, just, and good, and which ought to govern his action. Secondly, these principles of law are accessible to all men and are discovered by the right use of reason. Furthermore, these principles of law apply to all men at all times and in all circumstances. Lastly, man-made laws are just and authoritative only insofar as they are derivable from the principles of law in nature.[footnoteRef:2] [2: http://darashpress.com/articles/natural-law-summary-and-critique#fnlink_8]
There were essential contributions of the individual Natural Law Thinkers to the themes from both historical and contemporary times and I will evaluating the effect the main thinkers effect has on the overall main themes.
The earliest contributions from thinkers of the NLT come from the ancient Greeks. Plato (c 429-347 BC) and Aristotle had taken a Rationalist approach, arguing that there were absolute principles of morality provided by Nature, which could be discovered through the application of reason, and that once found, these principles should become the basis for the organisation of society, including its laws and legal and political institutions. For Plato the perfect society was characterised by Order, whereas for Aristotle the perfect society was built on virtue, and the virtuous existence of its citizens. A society lacking order or virtue in its social practices and institutions was therefore not a perfect society and fell short of the ideal. Legal, political and social practices which did not promote Order or Virtue were therefore morally unacceptable and unjust. [footnoteRef:3] [3: Chinhengo, Introduction to Jurisprudence, pp. 17-26]
In Nicomanchean Ethics, Aristotle argued that law supports a virtuous existence, advances the lives of individuals and promotes the ‘perfect community’. He proposed people should employ practical wisdom or active and that law supports a virtuous existence, advances the lives of individuals and promotes the ‘perfect community’.
Aristotle divided ‘political’ justice into ‘natural’ and ‘conventional’ justice. According to Aristotle, the content of ‘natural’ justice (or ‘universal’ law) is set by nature, which renders it immutable and valid in all communities. In contrast, ‘conventional’ justice comprises rules devised by individual communities to serve their needs. Aristotle argued ‘conventional’ justice is subject to change (depending on the form of government) and is therefore subordinate to ‘natural’ justice. [footnoteRef:4] [4: ARISTOTLE’S INFLUENCE ON THE NATURAL LAW THEORY OF ST THOMAS AQUINAS SIMONA VIERU The Western Australian Jurist Vol. 1, 2010]
We cannot talk about the history of the classical law theory without touching upon St. Thomas Aquinas’ development of the theory from the 13th century. He attempted to reconcile the relationship between the theory and Christian teachings. He was drawn to Aristotle’s philosophy because it accepted the reality of the material world, and Aquinas deemed it useful in attempting to validate the Christian doctrine. framework of a metaphysics of creation and divine providence. His theory sets the terms of debate for subsequent natural law theorizing.
St. Thomas Aquinas believed that the Rationalist and Religious approaches to society and law were not mutually exclusive, that they were indeed, part of the same universal scheme. We don’t need the bible, or religion class, or church in order to understand the natural law. Instead our instinct shows us the basic goods, and reason allows us to derive the natural law from them. Right acts are then in accordance with the natural law and as a result in accordance with Gods higher plan.
For St. Thomas Aquinas, the ultimate goal of all social, political and legal structures and all laws must be to promote and establish the Common Good. The perfect society was characterised by just laws which promoted and protected the Common Good. Any laws which did not seek to achieve this were unjust and a “corruption of law” as it Ought to Be and would lose their power to bind morally. Aquinas quoted St. Augustine, who had declared that: Lex Injusta Non Est Lex (An unjust law is not law) and made the point that if a ruler enacts unjust laws, “their subjects are not obliged to obey them”. However, he seems to have stopped short of actually encouraging citizens directly to disobey unjust laws, acknowledging that it may be necessary to obey such laws “in certain special cases when it is a matter of avoiding ‘scandal’ (i.e. a corrupting example to others) or civil disorder.
Aquinas outlined his theory of Natural Law in the Summa Theologiae, Aquinas elaborated on the concept of Human Law by reference to his understanding of Eternal Law, Natural Law and Divine Law. For Aquinas, Eternal Law was the divine and rational model according to which God created the world; this model provided the foundation for Aquinas’ three other types of law. The Divine Law is derived from God and guides man to perform through Scriptures, which reveal elements of the Eternal Law to man. For Aquinas, the purpose of law was to promote the ‘common good’, which leads to the ‘perfect community’. On the other hand, Natural Law is the process whereby man, as a rational being, participates in the Eternal Law. Aquinas argued that Natural Law is called ‘law’ only because of man’s participation. Whilst irrational beings are subject to the Eternal Law, they cannot participate in a rational manner. Created beings without intellect or will (whether animate or inanimate) are willed into being and directed toward their own perfection in the context of the perfection of the whole. God, he states, “instructs us by means of His Law”. Human Law emerges when a public person entrusted with ‘care of the community’ exercises human reason in order interpret the Eternal Law and create laws. A Human Law creates a moral obligation if it has been promulgated to men by the law-maker, and if it is just or consistent with ‘divine’ reason (ie promotes the common good, does not exceed law-maker’s authority and does not impose a disproportionate burden on individuals). [footnoteRef:5] [5: ARISTOTLE’S INFLUENCE ON THE NATURAL LAW THEORY OF ST THOMAS AQUINAS SIMONA VIERU The Western Australian Jurist Vol. 1, 2010]
NLT had started to lose popularity over the ever more popular theory of Legal Positivism. However, Professor John Finnis is a contemporary defender of natural law and a supporter of its resurgence in the last century. Finnis does not assume a God. Instead of referring to the ‘form’ of good or seeking good, as was proposed by historical jurists he speaks of man’s desire to pursue basic ‘goods’ in life. Finnis focuses on goods rather than a single good; a theory of how to live well.
In his main works, The ‘Basic Goods’ of Life, Finnis states based on the supposition that mankind sets out to obtain things they perceive to be good for themselves. In doing so, man must exercise practical reason to obtain that good at any one time.
NLT is not without its faults. One main criticism is that it bases its assumptions from a priori reasoning which is unscientific/subjective: Critics, especially Legal Positivists, criticise the Natural Law thinkers for basing their arguments for the close connection between law and morality on a priori reasoning, which in the Positivist view, is unscientific and subjective. They argue that the truth or falsity such propositions cannot be empirically verified, i.e. the conclusions of Natural Law are incapable of scientific proof.
Another problem of the positivist approach with regard to the nature of law is that it deals with the empirical sphere of reality (that is) rather than the transcendental sphere of the ideal (the ought). Legal positivists do not believe in natural law in the legal ordering of society because natural law is not common to everybody. There are conflicting precepts of natural law making it difficult to establish which is right and which is wrong. It is better if the concept of law is free from metaphysical speculation.
In the Legal Positivists point of view, the body of legal rules should exist without conscious regard for the norms of morality, although the latter’s influence are not completely denied. There are legal rules that do not measure up to moral law but do not cease to be legal rules.
Legal Positivism is a reaction against the metaphysics of natural law in favour of a scientific and empirical approach.
The three main characteristics of positivism are: The study of law as it IS and not as it Ought to be (meaning there is no necessary connection between law and morality). Secondly, it attempts to distinguish law from other rules such as social rules and morality. Lastly, the analysis of legal concepts.
Legal Positive approach as opposed to a Naturalist approach is that it recognises the model of command and compliance within the society, commands by the sovereign and compliance by the masses without the sovereign first having to secure the legitimate moral authority from the people. It does not make any difference if the sovereign makes good laws or bad laws the subject of the laws will generally comply because of the threat of sanctions in the form of punishment. [footnoteRef:6] [6: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 11 December 2018]
English philosopher Jeremy Bentham (1748-1832). Bentham is regarded as the founding father of Legal Positivism who stated exclusive positivism or also called as the hard positivism, in which it denies that a legal system can incorporate moral constraints on legality. and believed that there is no connection with morality and ethics and the formation of a legal theories, instead they argue that laws and the judicial system are made by man for man as a result of developing customs and convention into a quantifiable legal code. He set out to show legal systems are social constructs. [footnoteRef:7] [7: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 11 December 2018]
Austin defined law by saying that it is the “command of the sovereign” so his form of Legal Posivitism is described as the “command theory of law”. This simply means that any violation of the command issued by the supreme political superior or the sovereign is an infraction thereof and subject to sanction.
The positivists do not say that the law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. However, the merits of law do not determine whether a law or a legal system indeed exists. The existence of a legal system in a society can be inferred from the different structures of governance present, and not on the extent to which it satisfies ideals of justice, democracy, or rule of law.
The modern/contemporary form of Positivism inclusive positivism or also known as incorporationism or soft positivism, it is possible for a society’s rule of recognition to incorporate moral constraints on the content of law. The Separation Thesis, according to Hart is the essence of legal positivism. The main point or essence of this thesis is that, the law and morality are conceptually distinct. [footnoteRef:8] [8: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 9 December 2018]
In response to John Austin, Hart developed a theory of a legal system as consisting of primary and secondary rules. Primary rules are the existing set of operative legal obligations imposing rights and duties on subjects. Secondary rules are rules regulating how primary rules are made and changed, including a rule of recognition, rules of changes, and rules of adjudication.
Kelsen propounded the idea of a Pure Theory of Law, which is a theory of Positive Law. It is a general theory of law, not an interpretation of specific national or international legal norms; but it offers a theory of interpretation. It is characterized as a “pure” theory of law because it aims to focus on law alone. [footnoteRef:9] [9: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 11 December 2018]
The most influential criticisms of legal positivism all flow from the suspicion that it fails to give morality its due. The law has important functions in creating harmony and peace in our lives, advancing the common good, in securing human rights, or to govern with integrity and yet it has no relevance with our morals.
Fuller denies the separation of law and morality. He believes that whatever virtues inherent in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality.
His other criticism is that if law is a matter of fact then we are without an explanation of the duty to obey. If an amoral law is made, there is still an obligation to obey.[footnoteRef:10] [10: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 13 December 2018]
Today one could still argue that the current foundation for British morality continues to be the right-minded man approach as championed by Lord Devlin, not much appears to have changed this argument could be supported by the case of R v Brown (1993). [footnoteRef:11]The Lords rejected the defence of consent on the grounds of public policy and this decision was reaffirmed in Laskey v United Kingdom (1997) [footnoteRef:12] [11: R v Brown (1993) 2 All ER 75] [12: Laskey v United Kingdom (1997) 24 EHRR 39 (ECtHR) ]
The convictions were also upheld on appeal to the ECHR on the grounds that despite the prosecution being an interference of the personal freedoms of the individual, it was justifiable on the ground’s public protection. Like the homosexual trials of the 1950’s all the participants were consenting, no one participating had made a complaint to the police, yet despite this they were all successfully prosecuted all the way to the ECHR based on protecting public morality.
Other people could argue that society’s attitude has changed tremendously, and this change has been reflected by judgement in the courts. In R. v Wilson (1996) 1[footnoteRef:13] it was decided that a deliberate act of branding between heterosexuals causing severe pain and permanent scaring was a non-criminal act because of the consent of the victim, this was reaffirmed in R. v Slingsby (1995)[footnoteRef:14] [13: R. v Wilson (1996) 2 Cr App Rep 241] [14: R. v Slingsby (1995) Crim LR 570 (CA) ]
Homosexual culture was once deemed an immoral, now societies view has U-turned. Endorsement by institutions like the Anglican Church, parliament, BBC have made it acceptable. [footnoteRef:15] [15: C:UserstlewiDownloadsBBC ON THIS DAY 4 1957 Homosexuality ‘should not be a crime’_stm.mht]
In conclusion, I only partly agree with the statement “True law is right reason in agreement with nature” because I believe Legal Positivism will be required as long as there are theories or views or defences of law that insist that law comports with morality, whether inherently or contingently. This is because of the unscientific approach to Natural Law Theory has led me to take a more Hart type approach.
Natural lawyers are correct that this core idea underlying legal positivism is exceedingly thin. But in this dangerous world, given the fearsome power that law often wields, this thin idea is no less an essential one. Until recently no group of theorists has been more committed to making this point than legal positivists.[footnoteRef:16] [16: The Contemporary Relevance of Legal Positivism BRIAN Z TAMANAHA 37]
Articles, Books & Websites
- The Contemporary Relevance of Legal Positivism BRIAN Z TAMANAHA 37 http://darashpress.com/articles/natural-law-summary-and-critique#fnlink_8
- Chinhengo, Introduction to Jurisprudence, pp. 17-26
- ARISTOTLE’S INFLUENCE ON THE NATURAL LAW THEORY OF ST THOMAS AQUINAS SIMONA VIERU The Western Australian Jurist Vol. 1, 2010
- All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 13 December 2018
- The Contemporary Relevance of Legal Positivism BRIAN Z TAMANAHA 37
- C:UserstlewiDownloadsBBC ON THIS DAY 4 1957 Homosexuality ‘should not be a crime’_stm.mht
- R v Brown (1993) 2 All ER 75
- Laskey v United Kingdom (1997) 24 EHRR 39 (ECtHR)
- R. v Wilson (1996) 2 Cr App Rep 241
- R. v Slingsby (1995) Crim LR 570 (CA)