Race, Culture and Nation
GOD, NATURAL LAW AND PHILOSOPHY
by Ian Wilson LL.B.
The Natural Law
According to natural law theory
the idea that "no law can be unjust" is unfounded. Laws can be unjust because
they are contrary to God's law, or some higher moral law. All natural law theorists
believe in the existence of a higher law by which State laws can be criticised.
The idea of a higher law is found in a number of Greek dramatists such as Sophocles'
(496-406 BC) play Antigone, where Antigone buries the body of her brother
Polynices with the full religious rites, contrary to the decrees of the ruler
- Cicero, like many of the classical natural law theorists, is ambiguous about what the "natural" in "natural law" means. i.e., whether standards are:
Generally though, pre-Christian Greek and Roman philosophers referred to standards inherent in the nature of things, i.e., cosmic order. Christian writers though appeal to a creating God, the source or ground of Being who lays down the law for all mankind.
- Plato (428-348BC) perhaps the most famous Athenian philosopher, wrote at a time when ancient Greece was in decline and law and morality were widely regarded as social conventions. In Plato's works such as Gorgias, The Republic and Laws, he attempted to restore the traditional natural law link between justice and cosmic order.
- Aristotle (384-322BC) student of Plato, saw law as "a sort of order, and good law is good order". (Politics 136a). Aristotle also reacted to a group of philosophers called the Sophists who saw the law as mere convention. Law is concerned with the moral virtue of citizens, and exists to enable citizens to flourish, through the promotion of the common good. Justice is to be determined by the standard of the common good. In the Politics Aristotle developed the idea of the rule of law, that individuals in a society of equals are not ruled by the arbitrary rules of one person who stands above the law. In the Nicomachean Ethics natural law, being law founded upon justice is seen to have "the same validity everywhere alike".
- In Roman law, jurists distinguished between three kinds of law:
although by the mid-second century the jurist Gaius in his Institutes saw jus naturale and jus gentium as universal principles of law based upon natural reason. Law therefore had a foundation in the rational order of the cosmos, which was accessible to the knowing human mind.
- The jurist Ulpian (c.170-228) for example, saw the natural law as also taught by nature to animals, but few other Roman jurists went as far. "Justice" was defined in his Digest as the "constant wish to each, each [their] due" and the law as "the art of the good and equitable".
- In the sixth century the thought of Roman jurists was incorporated into Justinian Corpus Juris Civilis. There the natural law was regarded as a set of immutable divine laws and the positive law could be evaluated by this.
- After the fall of Rome and during the Early Middle Ages natural law theory was carried on by the Church Fathers. Instead of an impersonal but rational cosmos, they believed in the existence of a personal, creative Deity who was a law-maker of the universe in both a physical and human sense.
- St. Augustine (354-430) Bishop of Hippo North Africa, was the greatest and most influential of the Latin Church Fathers. In The City of God there is a suggestion that justice should be related to a "harmonious multitude" or order in society.
- Isadore of Serville (560-636) an important transmitter of Roman Law to later writers, said about natural law in his Etymologies book V:
- In the Middle Ages (1000 AD - 15th Century) a number of theologians developed natural law theory especially in the light of the systemisation of the canon law (i.e. Church law) in the middle of the twelfth century. Rediscovery of Aristotle's classic texts also occurred in the thirteenth century.
Thomas Aquinas (1224-1274) attempted to integrate Christian theology and
Aristotelianism. In the Summa Theologia law is defined as "an ordinance
of reason for the common good, made by him [i.e. God] who has care of the community
Just laws are:
For Aquinas, citizens have no obligation to obey unjust laws:
- There are a number of other medieval writers such as William of Ockham (1285-1349) of lesser significance in the history of natural law theory, as well as late renaissance figures such as Jean Bodin (1530-1596).
- Early modern Europe: Hugo Grotius in the early seventeenth century and Samuel Pufendorf in the late seventeenth century are significant because they mark the beginnings of a secular orientation to natural law. For Grotius, natural law did not require the existence of God for its validity.
break with traditional natural law theory was earlier made by Thomas Hobbes
(1588-1679) who developed a form of legal positivism.
- John Locke (1632-1704) another British philosopher responded to Hobbes in the course of founding the modern conception of liberal democracy. His main works are: Essay Concerning Human Understanding and Two Treatises of Government. The First Treatise on Government is an attack on the idea that God has placed some people above others.
In the Second Treatise Locke argues that in a state of nature, people are free and equal.
- There are a multitude of other important philosophers who also contributed to natural law theory including - Jean-Jacques Rousseau (1712-1778) Social Contract,
- Immanuel Kant (1724-1804) Metaphysics
of Morals and
- The later writers impacting upon generations of jurisprudence in Germany and Britain.
The Rise of Positivism
- Positivist philosophy has some anticipation in ancient Greek thought with the sceptics and sophists, but is primarily a product of the rise of science. Science rather than theology yields right knowledge and we come to this knowledge from sensory experience rather than through an armchair reasoning. This is the philosophical position of empiricism.
- It is set out forcefully
by Scottish philosopher David Hume (1711-1776) in his A Treatise of
Human Nature which attacked the metaphysical systems of his day.
- In England a school of thought known as utilitarianism involving philosophers such as Jeremy Bentham (1748-1832) and John Stuart Mill (1806-1873) abandoned natural law theory entirely in favour of the view that justice is grounded in utility, the greatest happiness for the greatest number.
- Bentham and Mill directly influenced the legal positivist philosopher John Austin (1790-1859). Austin's principal works are The Province of Jurisprudence Determined (1832) and The Lectures on Jurisprudence or the Philosophy of Positive Law (1863).
Austin distinguished between two questions:
is one of the core thesis of legal positivism, The Separability Thesis:
there is no necessary connection between law and morality.
- Austin advanced a will or command theory of law: law is an order of a sovereign backed by sanctions and force.
- This view has been widely criticised
but it has its defenders such as R. Von Ihering, Law as a Means to an
End (1968) and The Struggle for Law (1915).
H.L.A. HART, The Concept of Law
- In the 20th
century legal positivism was developed by philosophers such as Hans Kelsen,
H.L.A. Hart and Joseph Raz.
First we will look at Hans Kelsen's work.
in General Theory of Law and State and Pure Theory of Law constructed
a formalist account of law.
Now back to Hart.
Hart accepts both the separability
thesis and the social thesis as defining legal positivism.
On Hart's view there are two types of legal rules:
There are three different kinds of secondary rules:
Thus for law to exist, on Hart's position there must be primary rules for imposing obligations and rules of recognition detailing the conditions by which a rule imposing obligation is a legal rule. Law then consists not of commands based on sanctions, but of social rules and these social rules are normative and supply reasons for actions.
For Hart law is authoritative not because it consists of social rules, but because its authority is based upon being accepted by officials such as judges from an "internal point of view" i.e., they believe that such rules are authoritative. Rules of recognition are accepted as valid by the legal community.
This leaves open the question of why that legal community's acceptance of rules as law constitutes authoritative commands, that is:
rule of recognition presupposes the existence of judges. But a judge is only a
judge for Hart if they are empowered by rules of adjudication to make authoritative
determinations. But the rule of recognition presupposes judges and judges presupposes
a rule of adjudication. Hart's theory is therefore logically circular.
Other Criticisms : Ronald Dwarkin
- Hart's major critic is American academic lawyer Ronald Dworkin who has given a highly original jurisprudence which differs from legal positivism and natural law theory. Hart accepted that in legal disputes not covered by rules, judges have discretion in adjudication, and may in hard cases use moral principles to resolve disputes. Dworkin says in Law's Empire (1986) that legal systems also have principles which are normative and many are found in equity and elsewhere such as:
- Although Dworkin takes such principles to be "moral" these principles although normative, do not embrace any particular moral system (e.g. natural law theory) but are legal principles based upon past judicial and perhaps constitutional acts. Morality comes into the picture because there is usually an abundance of legal principles so a judge should choose those principles which are morally best, making the law as good as it can be. The idea is to make the law coherent, the product of a unified moral vision.
- Law then is an
interpretive or hermeneutical activity. On this view, unlike legal positivism,
there is no fact of the matter about what the law actually is to discover.
- There are a number of other traditions in jurisprudence which are critical of legal positivism's view of law as a rule-governed, moral free discipline.
- This is a US Movement
in the 1920s and 1930s with major exponents being: Walter Wheeler Cook,
Legal realists also accepted an:
or indeterminacy thesis: legal reasons permit more than one outcome - - e.g. dissenting
view often as plausible.
- K. Llewellyn in The Bramble Bush (1930) also noted that judges have a wide latitude to characterise "the facts" and may do so in different ways, so with the same legal rule a different decision could be reached.
- All this shows that legal formalism or mechanical jurisprudence is false. Decisions do not arise from axiomatic definitions applied to the facts through deductions from rules and principles. There is an interpretive and political aspect to judicial decisions.
- The Critical Legal Studies Movement develops that criticism. The CLS movement began with the Conference on Critical Legal Studies at the University of Wisconsin in 1977.
- Such work combines critical Marxist theory, Structuralism and post-Structuralism. It is concerned with power relationships hidden by liberal rights theory. It also accepts stronger versions of indeterminacy thesis, some nihilists seeing all legal claims as indeterminate, but most CLS work does not.
- Closely associated with CLS is Deconstructionism and Postmodernism.
- Deconstructionism is associated with French
philosopher Jacques Derrida. The view attempts to show legal distinctions
often privilege one term of the opposition (e.g., man/woman White/Black).
- Feminist jurisprudence has also directed critical attention to showing the alleged patriarchal/sexist nature of the law that legal positivism takes for granted.
- Natural law theorists such as John Finnis, Natural Law and Natural Rights (1980) have developed Aquinas' work. Basis of his work is that there are a number of equally valuable intrinsic goods valued for their own sake called basic goods:
- There are also principles: the basic requirements of practical reasonableness" which allow choice of basic goods e.g.,
- This position as developed by Finnis, R.P. George, In Defence of Natural Law, G. Grisez and J.M. Boyle Jr., largely defend a Roman Catholic ideology.
In a sense then, legal theory is returning to its classical roots after centuries in the wilderness of positivism and theism. There needs to be a firm foundation to the law if man is to uphold it. That firm foundation, a number of leading philosophers have found - is God.
Published by the Australian League of Rights, Box 1052. G.P.O. Melbourne 3001.