Sunday, February 19, 2006

A primer on natural law

For those who just can't get enough, I suggest you pop open a bud and click on "Read..."

Natural Law

Natural law consists of two parts: first, ethical natural law, which
pulls out moral norms from facts about the world and about human
nature; second, legal natural law, which limits the discretion of
otherwise-legitimate lawmakers to not abridging the norms found in the
first part.

It is possible to try to avoid the second step, in which case you have
a sort of "incomplete" natural law: you might believe moral norms are
validly found from human nature, but then be a positivist, saying mere
social fact is both necessary and sufficient to give law its full

Both steps have questions to answer. How do we find moral norms from
human nature? There are two general views of this, both starting with
some idea of human flourishing and fulfilling the potentiality of
man's nature. The first method is derivationism--Aristotle and Aquinas
are usually taken to be examples. Derivationism holds that practical
judgments regarding the natural ends of human flourishing are not
self-evident, and need to be derived from theoretical proofs about
human nature. We know certain things about humans from speculative
reason. From these facts we can characterize what is good for humans
from an idea of the characteristic function. This uses analytical
truths to tightly link what "kind" of thing you are with what your
"good" is.

Inclinationism is the second method--most modern natural lawyers, like
John Finnis, Robert George, Germain Grisez, Mark Murphy, etc. (all
Catholic!:), think this is stronger. Inclinationism holds that the
basic forms of good can be adequately grasped by anyone who is of the
age of reason. So basic goods are per se nota (self-evident), and
since they are indemonstrable, one doesn't need a metaphysician to
demonstrate them. One becomes aware "by a simple act of
non-inferential understanding" that certain objects are goods to be
sought. (This is not exactly the same thing as intuitionism.)
Practical reason can grasp first principles, contra those who think
that all practical reason is about weighing means. One is inclined
towards something, and one then understands that the thing one seeks
is a specific example of a general good, such as knowledge.

The second step, legal natural law theory, brings up the most
important question: what happens if a law does not conform to the
norms previously found by moral natural law? Most natural lawyers say
some variation on the statement "an unjust law is no law at all."
Austin, of course, objected that tons of unjust laws are enforced qua
law by political bodies all the time. But this objection is useless:
given any theory of law, it is always possible to find some edict that
does not meet that theory's standards which is nevertheless enforced
by the courts as a law. (Unless you are a "pure positivist", someone
who believes strictly in Holmes's statement that law is what the
courts do.) There are two variations on the "no law at all"
formulation: either the law is simply invalid, as if Mickey Mouse had
said it, or the law is imperfect, lacking some of the force a law
normally has. Finnis, again, has the best account of this. A law which
is invalid provides a mere reason for action. A law which is valid
provides a "defeating reason" for action.

What if you want to do X--you have a justified reason to do X--but the
law commands you to not do it? The law defeats your other reason. It
does not destroy the other reason--there is a possibility of moral
tragedy, in the sense that two legitimate values may conflict. All
true laws are reasons for action, and they are conclusive, in the
sense that they defeat other reasons for action that are not
themselves legal norms. An invalid law provides a reason for action
(maybe you'll be shot if you don't obey it), but there may be no
reason to not try to cheat in private, since the invalid law lacks
what was doing the moral work to defeat your other reason. This is
Hart's distinction of "being obliged to do X" (because of a gun) and
"being obligated to do X" (because other reasons are defeated). Hart
believes that mere social facts move a demand (obliged) to a law
(obligated), so he is not a natural lawyer.

Finnis would conclude that law is a way of organizing society around
the basic goods derived by ethical natural law, like life, health,
knowledge, for the general common good:
The term 'law'
refers primarily to rules made, in accordance with regulative legal
rules, by a determinate and effective authority (itself identified
and, standardly, constituted as an institution by legal rules) for a
'complete' community, and buttressed by sanctions in accordance with
the rule-guided stipulations of adjudicative institutions, this
ensemble of rules and institutions being directed to reasonably
resolving any of the community's co-ordination problems (and to
ratifying, tolerating, regulating, or overriding co-ordination
solutions from any other institutions or sources of norms) for the
common good of that community.
This theory has combined
most of the strengths of natural law and positivism, and is often
regarded as the strongest modern variant. (By me, at least.)

Another author usually regarded as a natural lawyer, Lon Fuller,
concentrates more on the procedural constraints required so that the
law can fulfill its basic end, of organizing behavior. In his "The
Internal Morality of Law", he notes that laws must be (1) general, (2)
made known, (3) prospective, (4) understandable, (5) consistent, (6)
possible to obey, (7) stable, and (8) administered fairly. I would
view this as a subset of more general natural law theories: these
restrictions come from human nature in the sense that we can only
volunteer to conform to common-good commands if (1-8) are met. They
are not mere "efficacy conditions" as Hart has alleged: edicts which
fail to satisfy these conditions both are less effective and
do not have the full moral force of law.

Natural law is "perfectionist", in that it views law as a way of
cultivating a healthy moral ecology in which individuals can become
virtuous. Following Aristotle, it gives a strong role to the polis in
perfecting men. The polis is an "association for the good life, for
the sake of attaining a perfect existence", and any organization which
doesn't satisfy this is a mere trade organization or protective
arrangement. This is strongly against Rawls's "anti-perfectionist
argument". This does not mean that natural law strongly dictates
ends. Joseph Raz has written extensively on pluralism and natural
law. Since autonomy is a "constituent element of the good life", the
ability of an individual to create his own life through successive
decisions must be protected by the state. It is a fact of human nature
that individuals have different tendencies. Autonomous persons can
"develop relationships through which their personal integrity and
sense of dignity and self-respect are made concrete." This requires a
degree of pluralism. How much--and whether "victimless vices" can be
criminalized (Raz thinks they cannot)--I'll leave to another

But the last point I made brings us up against Roscoe Pound and Ayn
Rand. Pound gives too little credit to the arguments that freedom of
contract--autonomously creating promissory relationships that reflect
our dignity as persons--stems from human nature. Ayn Rand, perhaps,
gives it too much credit, setting contract above other common goods
that need to be protected by the state.

I have neglected Dworkin here, because I don't know anything about
Dworkin's beliefs about natural law.


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