Jurisprudence – Natural Law

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Classical and Modern Natural Law Theory Introduction Natural law theory is not a single theory of law, but the application of ethical or political theories to the questions of how legal orders can acquire, or have legitimacy, and is often presented as a history of such ethical and political ideas. These theories would explained the nature of morality, thus making natural law theory a general moral theory. The basic idea was that man could come to understand, either by his own reasoning or help from God, how he should act rightly in respect of his fellow man.However, within modern Jurisprudence, much of the importance of natural law has been eroded from a question on the meaning of justice or how a system of law could be understood as legitimate; into a question of what is the relationship between natural law theories and the everyday operations of a legal system.

This is because much of natural law has been savaged by two criticisms: a. Natural law theories’ assertion that in order to understand what law is, it is necessary to involve oneself in an exploration and explaination of what law ought to be is inherrently faulty. the fact/value distinction) This confuses the description (law’s actual existence) with prescription (the evaluation of law as good or bad). Natural law theories stray between the logically unconnect fields of meaning of ‘is’ and ‘ought’, which is dubbed the ‘naturalistic fallacy’. The incompatibility between these two fields is illustrated by the classic interpretation of Hume’s law, that one cannot derive a statement about what ought to be from a statement about what is, or vice versa.

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To give an example of the non sequitur involved in this kind of reasoning is that the fact that only women can bear hildren, points to the conclusion that they This supposed link between the capacity to bear children and motherhood is provided through social conventions and is entirely contingent. The former does not follow the latter as if it was some sort of natural and unavoidable consequence, and thus cannot be seen to somehow be an inherent property of human beings and the way they organise their world. b.Any attempt to identify a necessary common element of ethics in all legal ststems appear to founder on the difficulty of agreeing on a common set of ethical values, as oherent moral values are extremely difficult to articulate, let alone to prove. c. The source of natural law It can be discerned from Cicero’s works that there are two very different sources of natural law: i. Our shared reason “and it is not only Justice and injustice that are distinguished naturally, but in general all honourable and disgraceful acts.For nature has given us shared conceptions and disgraceful ones with vice” These are our shared conceptions’ given us by nature by which we all classify things in the same way, evil with evil, good with good.

it. God as the author of natural law 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 all of us, for he is the author of the law, its promulgator, and its enforcing Judge. Is it not possible for our reason to conflict with what we learn from the revelation of God’s will? Was the moral law as revealed by God good Just because God willed it, or was it willed by God because it was good? There is a circularity in attemption to efine morality in terms of God’s will.

To say that God deserves our obedience because he is morally perfect can only make sense if we understand the notion of moral perfection before we relate it to God. This had led natural lawyers such as Grotius to say that natural law was willed by God, but, but was willed by him because it is that which is rationally good.It is not good merely because he happens to have willed it. Hence Grotius could conclude that natural law would hold good even if there were no God. A history of Natural Law The origin and focus of natural law theory is summed up in the form of a question osed by Aristotle: “What is the reason for deminding a mina as a ransom for the prisoner, or that a goat and not two sheep should be sacrified? ” This question is the basis for the earliest distinctions between natural and positive law.The content of laws and the specific consequences that flow from the, is entirely arbitrary, in ancient as well as modern times. Laws are a matter of convention or convenience, political interest or local ideology. Two Greek philosophers, Plato and Aristotle, attempted to find an alternative ethical basis for social life: a.

Plato Plato saw the basis of ethics and other knowledge in absolute values to which things could approximate. For example, something can be beautiful, but it is not itself beauty. The elements of beauty found within the vase enable the description ‘beautiful’ to be used.Men know that value intuitively, although its content could be more fully identified through the these absolute values, which includes law, which plays an intrinsic relationship with law. Plato postulates that relationship is that “only such law can be considered right.

. which has something of the externally beautiful, and which neglects everything that s devoid of value. ” For Plato, ideas such as Justice, virtue and beauty were ideals, but they have greater ethical value than the customs of particular regions.The latter are ‘conventions’, and thus have nothing sacred about them. Therefore he sought to locate ethics in universal values, which could transcend the particularity of local practices. b.

Aristotle For Aristotle, the source of those values is not absolute values, but of those found in nature, in particular, human nature. For him, nature had elements of both change and stability. The concept that unified this opposition was the telos (end of things). Things evolve towards their ends, or purpose.Aristotle applied this teleogocal form of reasoning to human development. Man is a social animal, which meant that he needed social groups in orde to flourish.

But man is also a political animal, it is his nature to live in a state. But politics was only possible within a polis , thus the creation of the polis allowed man to fulfil a potential. This reasoning led him to the conclusion about the law appropriate to a polis , for example, from man’s nature as a social animal he concluded that there must be laws appropriate for the rearing and education of the young.Thus man is social, political and sought knowledge, and only when in a position to fulfil these aspects of his nature could men flourish and achieve the good life’. Once Alexander the Great founded the Greek empire, Greeks and barbarians came into contact with in ways that went beyond the former making slaves of the latter. Attempts to make ethical sense of this experience led the Stoics to accord primacy to man’s reason, as by reason man could determine those precepts of right conduct which transcended particular cultures, and therefore were universally appilcable.They also talked of a community beyond the city state.

This philosophy represents the first attempt to identify sources of law that transcend particular states. This relationship, between local laws and more universal and higher legal order, forms the basis for the development of natural law from the time of the Stoics. With the creation of the Roman Empire, came the development of a common legal order for Roman Colonis and Rome itself, based on the customs common to them all, jus gentium .This notion started life as a second class legal system, a stripped down Roman civil law intended to facilitate trade, which applied to foreigners, but came to e regarded as a higher or superior legal With the creation of the Roman Empire,Moderndevelopment of a Theory legal order for Classical and came the Natural Law common Roman Colonis and Rome itself, based on the customs common to them all, Jus gentium . This notion started life as a second class legal system, a stripped down St.Thomas Aquinas – Summa Theologica To Aquinas, law is a rule or measure of action that leads subjects to perform certain actions and restrain from doing others.

But these rules and measure of actions is derived from reason, as Aristotle said, it is reason which directs action to its ppropriate end. In addition, the object of said laws must be the well-being of the whole community. This is because, as according to Aristotle, man’s purpose is to live in a political community, and therefore what is legal and Just in a law will reflect this, to preserve the well-being of the community through common political action.Since the principle object of law is the ordering of the common good, the promulgation of law is the task of either the entire community or a political person whose duty is the care of the common good. The well being of one man is not a final end, but subordinate to the common good. It follows that unjust law is not according to reason, and is thus not law in the true and strict sense, but is rather a perversion of law.

However, it does assume the nature of law to the extent that it provides for the well-being of the citizens.Aquinas then described orders of law, eternal, divine, natural and human, which purported to show the way in which human reason was able to appreciate what was good and godly. Man, by his reason, would be able to participate in the moral order of nature designed by God. 1. Eternal Law – lex anterna This is divine reason, known only to God and ‘the blessed who see God in his ssence’. It is God’s plan for the universe, a deliberate act of God and everything, not only man, is subject to it. Eternal law is thus the ideal of divine wisdom considered as directing all actions and movements.

All laws, so far as they accord with right reason, derive from the eternal law. As Augustine said, in human law nothing is Just or legitimate if it has not been derived by men from the eternal law. Thus, human law has the quality of law only in so far as it proceeds according to right reason. If it deviates from reason it is called an unjust law, and has the quality not of law but of iolence. 2. Divine Law – lex divina This deals with those parts of eternal law that are directly revealed to man by divine revelation.

Aquinas notes the reasons why we need divine law to direct human life: a.It is by law that man is directed in his actions to his final end. Since man is destined to an end of eternal blessedness, and this exceeds what is proportionate to natural human faculties of reason, it is necessary that he should be directed to this end not lust by natural and human law, but divine law.

just by natural and human law, but divine law. b. There is an uncertainty of human Judgment, resulting in contradictory laws. Therefore man, to avoid any doubt as to what he is to do and what to avoid, it is necessary that he should have direction from a divinely given law, which is known to be incapable of error. c.Because laws cannot reach to the interior actions of the soul. d.

As Augustine says, human law can neither punish or prohibit all that is evilly done. Therefore, there should be divine law to ensure that no evil should go unforbidden and unpunished. Note: There is an overlap between divine law and natral law, in such matter as are overed by, for example, the Ten Commandments , where the prohibitions against murder, theft and so on, are declared by divine law but can also be appreciated as natural law precepts as well. 3. Natural Law – lex naturalis This law consists of participation of the eternal law in rational creatures.It is thus the eternal law in so far as this is intuitively and innately known and knowable.

Humans, being rational creaturesm are subject to eternal law in a special way, as they have a certain share in the divine reason itself, thus deriving a ‘natural inclination’ to their own actions and the actions of others. Therefore, natural law is the same for all men since all are rational and it is proper for man to be inclined to act according to reason. Precepts of the natural law The order of the precepts of the natural law corresponds to our natural inclinations: a.

The natural law contains all that makes for the preservation of human life, and all that is opposed to its dissolution. b. The natural law contains the inclination which ‘nature has taught all animals’, such as a sexual relationship, the rearing of offspring etc.

c. The natural law contains the inclination towards good, corresponding to man’s rational nature. Man has a natural inclination to know the truth about God and to live in society, to avoid ignorance, to not give offence to others etc. The law of nature, as far as first principles are concerned, is the same for all as a norm of right conduct and is equally well knowed by all.

There are two ways in which natural law may be understood to change: a. Certain additions may be made to it. b. Certain substractions may be made from it. As far as first principles are concerned, it is wholly unchangeable. As to secondary principles (which follow as immediate conclusions from first principles), may change in rare cases: i.

ith regards to rightness i’. with regards to knowability a. Primary – secondary classification It is not clear which precepts are primary and which secondary. Nor is it clear how the secondary principles are derived from the primary ones.There may be only one primary precept: that good is to be done and evil to be avoided. But the question then leads to what is good and evil? According to neo- sholastic interpreters, good refers to those actions that conform to properly human ends, and evil to those actions that fail so to conforms. Note: Grisez challenges this, stating that the concept of good, as he understands rom Aquinas, refers not only to what is morally good, but to whatever within human power can be understood as intelligibly worthwhile, and evil to any privation of intelligible goods. .

The explaination of change in secondary precepts Aquinas reasoned that obligations may change due to a change in human nature. Aquinas admits that human law, which derives its validity from natural law, changes with human circumstances and human reason. But are all these changes Justifiable? For example: a.

Attitudes to usury (immoral loans) were described as contrary to natural law by Aquinas, but Cardinal Cajetan had not difficulty in abandoning this octrine. The growth of commerce and industry and the need for investment Justified the change. b.The bellum Justium (the Just war theory), formulated by St. Augustine and expounded by Aquinas, seems weak in the face of the numerous armed conflicts which happened since, and the growth of nuclear ICBM stockpiled in numerous countries. c. The ban on contraception, restated in the Papal Encyclical Humanae Vitae, in light of the problems of over-population and the changed status of women. 4.

Human Law – lex humana This consists of the particular rules and regulations that man, using his reason, educes from the general precepts of natural law to deal with particular matters.As Cicero says, law springs in its first beginnings from nature: then such standards as are Judged to be useful become established by custom: finally reverence and holiness add their sanction to what springs from nature and is established by custom. Aquinas notes that since the first rule of reason is natural law, all humanly enacted laws must be derived from natural law. If it is at any variance with natural law, it is no longers legal, but a corruption of law.

As to why we need a distinction between human and natural law, Aquinas exploits he analogy of an architech to explain this.That the natural law will explain the precepts or requirements of a house, that it needs doors, windows etc. This is what he refers to as specificatio, as it is specified by natural law itself. But we need human law to determine the size of the doors etc. This is a matter of determinatio, as concepts like the duration of punishment, fines etc are not directly provided for in natural law, but can be determined within the boundaries set by natural law. conclusion from more general principles, where demonstrative conclusions are drawn from first principles. As a determination of certain general features, where some common form is determined to particular instances.

Note: Aquinas exploits the analogy of an architech to explain this. That the natural law will explain the precepts or requirements of a house, that it needs doors, windows etc. But we need human law to determine the size of the doors etc. Therefore we need human laws as natural law does not provide all or even most of the solutions to everyday life in society.In addition, we need human laws to compel those who are of evil disposition and prone to vice to refrain from acting selfishly, so hat they will be drawn eventually, by force of habit, to practice virtue voluntarily. The limits of human law Human laws shuold take account of the condition of the men who will be subject to them, so that it is possible to obey them. For this reason there should be different laws for children and for those of limited capacity, as they do not have the capacity to act in accordance to those of perfect virtue.Human law should also be enacted with the fact that the mass of men are far from perfect in virtue in mind.

Human law should thus not prohibit every vice from which the truly virtuous men abstains from. It should only prohibit the graver vices which the majority of man can abstain from, particularly vices which are capable of inflicting damage and misery over others. In addition, a law only obliges in conscience to the extent that it is in keeping with the natural law and thus Just. Laws may be unjust for two reasons: a.Where they are detrimental to human welfare, contrary to the norms derived from natural law Either with respect to its objects – where the laws are burdensome to the subjects and do not make for common prosperity; or with respect to its author – where the egislator enacts laws which exceed the powers vested upon him; or with respect to their form – where the burdens, although concerned with the common welfare, are distributed inequitably throughout the community. b. Where they are unjust through being contrary to divine goodness.However, Aquinas is not saying that an unjust law is not a law.

Such a law continues to partake of the character of law in its form, and participates in the order of law in a minimal way. This is because the law is a necessary human institution of communal practical reason. Therefore, every person has the duty to support the law. Thus the fact that a law is unjust does not provide one with an absolute license to disobey it. One must take into account the consequences of one’s disobedience, which might generate a willingness amongst people to disobey the law for selfish his conscience.

The mutability of human law Aquinas notes that there are only two causes that Justify the change of human law: a. On the part of reason It is natural for human reason to proceed by stages from the imperfect to the more perfect. Therefore regulations set by those who were not able to solve the entire problem can be later modifed by their successors. b.

On the part of men whose actions are regulated by the law Changes in law may be justified on account of altered circumstances, which bring altered standards. St. Augustine gave an example of suffrage.If the people are orderly and looks after public interest, there is a Justification in law to allow them to vote for their own magistrates and politicians. However if the people are largely corrupt, suffrage should only be extended for the few and honest. However, there are limits to such mutability. Constant change in the law is detrimental to the public welfare, as in the observance of law, custom is important.

When law is changed, its coercive power is diminised to the extent that custom is set aside. Thus human law should never be changed unless the benefits which result to the public interest are such as to compensate for the harm done.John Finnis – Natural Law and Natural Rights As a preliminary note, although Finnis makes reference to the Christian philosopher St. Thomas Aquinas, Finnis’ theory of natural law does not rest on theology. In fact, he rejects much in the natural law tradition: a.

He claims that natural law does not necessitate a belief in morality as comprising bservance of rationally demonstrable principles of behavior. b. He denies that natural law requires laws which infringe such principles be impugned as invalid.

It is worth noting what the place of God is in Finn’s’ scheme.Although Finnis is a devoted Christian, God does not loom large in his theory. God is Finnis’s conclusion, not his premise. Like Grotius, he believes a theory of natural law does not have to stipulate God. It stands out without the need of religious doctrine. Finnis however thinks that if one accepts the arguments of his book one will have a strong reason to believe in an Uncaused Cause of the Universe.

For Finnis, natural law is the set of principles of practical reasonableness in ordering human life and human community.Drawing on Aristotle and Aquinas, Finnis posits that there are certain basic goods or objective values that every human must assent to their values as objects of human striving. Some may argue that Finn’s’ argument is gulity of the naturalistic fallacy (see above); just because it might be possible to observe basic goods and values does not mean that they are linked of necessity to any particular conclusions. ‘is’. He reasons that normative conclusions are not based on observations of human ature but a ‘reflective grasp of what is self evidently good’.

This whould make basic values indemonstrable but self evident, and are basic values that underlie all human societies. These basic values, or goods, are objective values in the sense that every reasonable person must assent to their value as objects of human striving. Note: As to what ‘reflective grasp of what is self evidently good means, Finnis may mean that we perceive the good through reflection about our behavior, relating to an idea of conscience. For example, we feel bad when we do something we feel is wrong. This would be in line with Finn’s’ reasoning that our grasp of basic goods is a human response.

However, it could be instead argued that such a notion of good (appearing in conscience or self reflection) is not self evident, by entirely a product of education and training within a culture’s world view. Consider Mau Mau tribe in This would be in line with Finnis’ reasoning that our grasp of basic goods is a human and training within a culture’s world view. Consider Mau Mau tribe in Africa? Therefore, even if we argue that this notion of good is present in all cultures, this oes not logically follow from Finnis’ encapsulation of the good as an innate activity.

The Basic Goods Finnis lists seven of such basic goods: 1 .Life – The first basic value, corresponding to the drive for self-preservation, is the value of life. The term life signifies every aspect of vitality, which puts a human being in good shape for selfdetermination.

2. Knowledge – A preference for true over false belief. It corresponds to that basic drive we call curiosity, a drive which leads us to reject any celebration of self-proclaimed ignorance or superstition.

It is knowledge or its own sake, not merely instrumentally, as an end in itself. 3. Play – Each one of us can see the point of engaging in performances which have no point beyond the performance itself. . Aesthetic experience – The Appreaciation of beauty 5. Sociability – acting for the sake of one’s friend’s purposes, or one’s friend’s well being.

6. Practical reasonableness – The basic good of being able to bring one’s own intelligence to bear effectively, on the problems of choosing one’s actions and life- style and shaping one’s own character. 7. Religion – questions of the origins of cosmic order and of human freedom and eason, the need to bring one’s actions and emotions into some sort of harmony what that even an atheist can make.Finnis argues that there is a cross cultural importance of these basic goods. To illustrate, there is an agreement on the need value and preserve human life; that procreation as a positive event; that there is a concern for truth that makes for the valuing of education; that there is a consensus on the value of friendship, title for property, reciprocity and play; and that all cultures are finally concerned with treating the dead with rituals and having some form of religion.

There is also no hierarchy within the list and thus the basic goods are considered incommensurable.None of the basic goods “can be analytically reduced to being merely an aspect of any of the others, or to being merely instrumental in the pursuit of any of the other,” and “each one, when we focus on it, can reasonably be regarded as the most important. ” These goods are also pre-moral, in that they do not presuppose any moral Judgment. Note: Finnis’ approach is contrasted from anthropological or psychological methodology. Anthropology or psychology may provide an explaination inking certain urges or drives but it does not Justify the value of the basic goods.Note: Finn’s’ approach is contrasted from anthropological or psychological methodology. Anthropology or psychology may provide an explaination linking certain urges or drives but it does not Justify the value of the basic goods. Note: Finnis’s theory may be compared with Martha Nussbaum’s theory of capabilities.

She attempts to articulate an idea of human capability, that can found an argument about adignity that is cross cultural and cross temporal. This universalist approach to capabilites is directed towards a specific content: of what all uman beings share.This catalogue of capabilites which constitutes a good life distinguishes between a minimum level of basic human functioning, which a higher level which includes normal longevity, adequate food, health and shelter, and a capacity for pleasurable experiences. This idea of higher level of functioning is compatible with Finnis’s catalogue of basic goods. It explains the lack of any allocation in Finnis’ list of requirements for basic functioning (food, water, and shelter). It can be assumed that Finn’s’ model presupposes that these have already been acheived to allow the intellectual ngagement with the ends of life.

Practical Reasonableness And it is practical reasonableness that allows us to articulate the relevance of the basic goods to our conduct. As practical reasonableness and the basic goods are cross cultural (see above), this analysis is univerally relevant and applicable. Since there is an ethical capcity that is somehow inherent in human beings, it can be modelled on the basis of the basic values and is brought to bear by considering practical reasonableness. Practical reasonableness thus serves as the engine for how we assess and persue the

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