Race, Culture and Nation

GOD, NATURAL LAW AND PHILOSOPHY

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 Creon.

- Marcus Tullius Cicero (106-43BC), a Roman statesman and philosopher in his Republic gives a good account of the classical natural law position in this statement:
"True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions… And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal; and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator and its enforcing judge."

In this statement is found the main elements of classical or traditional natural law theories:
1. Law is unchanging over time;
2. There is no social relativity;
3. Reason enables access to this "higher" law;
4. Only "just" laws are really laws;
5. Truth and justice is inherent in the idea of law.

- Cicero, like many of the classical natural law theorists, is ambiguous about what the "natural" in "natural law" means. i.e., whether standards are:

1. Derived from human nature being accessible by reason;
2. Are expressed in nature; or
3. A combination of both.

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.

• The will to power had to be restrained by the rule of reason which established justice in the soul.
  Justice is not mere obedience to the law, but was intrinsically linked to knowledge of the good, which for Plato was a Form.
  Forms are types of abstract essences which are eternally existing and incorruptible.
  To know the form of, say justice, is to know the nature of justice.
  Law is reasoned thought embodied in the laws of the State.
  The reasonable State co-ordinates and limits to their proper areas, the various elements of the human psyche to enable humans to function well.

- 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:

1. Jus naturale - natural law;
2. Jus gentium - the law applied to strangers;
3. Jus civil - the law of the City of Rome,

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:

"Law should be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good."

- 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 and promulgated."
Aquinas distinguished between:

o eternal law (God's laws of the universe);
o natural law (law of creation); o divine law (as revealed in the Bible);
o human law (positive law). Positive law is based on natural law and must be just "[having] the power of binding in conscience."

Just laws are:

o ordered to the common good;
o the law-giver must not exceed authority; and
o the burdens of the law must be fairly placed on citizens.

For Aquinas, citizens have no obligation to obey unjust laws:

o "unjust law is not law"
o unjust laws "are acts of violence rather than 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).

Modern Natural Law Theory

- 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.

- This break with traditional natural law theory was earlier made by Thomas Hobbes (1588-1679) who developed a form of legal positivism.
Although using the terminology "natural right" and "right reason", these are identified with self-interest. There is no reason in nature, he states in Leviathan and Elements of Law.

§ The state of nature is a war of all against all and there is no right, wrong or justice in this.
§ It is the sovereign or Leviathan who by force holds society together.
§ Law is the commands of this sovereign.
§ There can be no unjust laws as natural law theorists thought.
§ There are no legal limitations to the exercise of sovereign power.

- 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.

§ People are naturally free.
§ There is no divine right of kings.

In the Second Treatise Locke argues that in a state of nature, people are free and equal.

§ Laws of nature, ordained by God, grants natural rights to individuals - such as a right to life and liberty.
§ People join together by means of a social contract to form society from the state of nature.
§ This view of natural law had a major influence upon the American Declaration of Independence and the development of law in the United States.

- 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
- George Hegel (1770-1831) The Philosophy of Right.

- 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.
His Dialogues Concerning Natural Religion attacked the traditional arguments for the existence of God, and miracles.
In the Treatise Hume introduced the is-aught distinction which has influenced ethics ever since.
Moral Statements or "aught" statements cannot be derived from factual statements.

This raised a question about how morality could be justified.

- 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:

1. What is law?
2. What ought law to be?

This is one of the core thesis of legal positivism, The Separability Thesis: there is no necessary connection between law and morality.

The other thesis is the Social Thesis:
what counts as law in a particular society is a matter of convention or social fact.

- 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.
Of these H.L.A. Hart's The Concept of Law (1961) is the most significant, although various forms of legal positivism probably still dominate today - but not uncontested.
See for example: Stephen Guest (ed), Positivism Today (1996), Brian Z. Tamanaha A General Jurisprudence of Law and Society (2001)

First we will look at Hans Kelsen's work.

Hans Kelsen in General Theory of Law and State and Pure Theory of Law constructed a formalist account of law.
Law was seen as a conceptual system of norms.
What makes law valid is the coherence relationships between the norms, not any correspondence to external reality - especially morality.
There is a basic norm which provides the common bond of the system: e.g.,
- statutes derive their validity from the Constitution and the Constitution, in turn from an act of democratic referendum.

There is debate about whether the basic norm is law itself or a limit to law, a "fiction" as Kelsen described it.
Arguably it is law - boundaries are part of the thing.
Legal formalism philosophically supports the declaratory theory of law that judges only declare the law but don't make it.

Now back to Hart.

Hart accepts both the separability thesis and the social thesis as defining legal positivism.
The criteria of legality is based not on moral value, but on social facts about legal systems.
Whereas Austin viewed a sovereign as a particular person, Hart objected saying that legal rules can still be binding when the sovereign as a person disappears or is disempowered.

• Hart thought that the sovereign should be an office, not a person.
  An office is an institution and institutions are made up of rules.
  Unlike in Austin, these rules are not necessarily backed up by threats.
  For Hart the rules authorise actions by public officials, such as judges.
  Rules may therefore expand rather than merely limit liberty as Austin thought.
  Sanctions are therefore not a source of the law's normative force.

On Hart's view there are two types of legal rules:

1. primary rules that limit or expand liberty; and
2. secondary rules about the primary rules.

There are three different kinds of secondary rules:

1. those creating a power to legislate;
2. those creating a power to adjudicate;
3. rules of recognition - setting out conditions for a norm to count as that community's law i.e., setting out validity conditions.

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:

§ Why should rules of recognition being accepted from an "internal point of view" by the relevant official give a ground for obedience?
§ Why accept those officials as legitimate and authoritative, given Hart's rejection of Austin's criterion of the monopolisation of force and the means of coercion?
§ To say that we should obey because they are agents of the State is circular because on Hart's analysis the State's legal system is itself comprised of rules.
§ The question of the super-ultimate ground of authority is therefore not addressed.

The 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:

"one should not be able to profit from one's wrong."

- 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.
Describing law is not so much a search for rules, but a quest to determine what is the "best" explanation of past official actions.
For Dworkin, the validity of legal principles does not depend upon morality but to interpret the meaning of valid legal rules moral principles must be used. Arguably this still makes the validity of legal principles depend on morality.

Other Criticisms

- 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.

Legal Realism

- This is a US Movement in the 1920s and 1930s with major exponents being: Walter Wheeler Cook, Herbert Oliphant.

It is concerned with a realistic study of how judges decide cases.
Judges decide cases on how the facts of the case strike them not merely because of legal rules.
This is highly contingent upon social and political factors.

Legal realists also accepted an:

- Under-determination or indeterminacy thesis: legal reasons permit more than one outcome - - e.g. dissenting view often as plausible.

- Precedents in many cases do not justify a unique outcome because judges may treat precedents strictly or loosely.

o Strictly - applied to unwelcome precedents distinguishing the case at hand "confining the case to the particular facts".
o Loosely - idea that earlier Court has decided authoritatively all points on which it rested a case.

- 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).
It is alleged that justifications for the distinctions, not only mask political oppressions and inequalities but the justifications for the distinctions often undermine themselves or show what is suppressed or marginalised.

Thus:
o Legal texts have multiple and often conflicting meanings.

- Feminist jurisprudence has also directed critical attention to showing the alleged patriarchal/sexist nature of the law that legal positivism takes for granted.

New Natural Law Theory

- 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:

o life and health
o knowledge
o play
o aesthetic experience
o sociability and friendship
o practical reasonableness
o religion

- There are also principles: the basic requirements of practical reasonableness" which allow choice of basic goods e.g.,

o the end never justifies the means where the means entails harming a basic good
o moral evaluation is a necessary and integral part of law
o the source of law is that of a social mechanism for supplying goods that would not be obtained without the co-ordination and regulation of people which law produces
o hence, for Finnis, legal theory is derivable from ethical theory.

- 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.

o e.g. opposition to extramarital sex acts and homosexuality
o indicate that this position is far from politically neutral (it didn't pretend to be).

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.

Further reading:
"Releasing Reality" by Eric Dudley Butler
"Has Christianity Failed?" by Eric Dudley Butler
"What is Social Credit?" by Dr. Geoffrey Dobbs.
All books available from League Book Services.