Natural Law and Thomas Aquinas
positive law in the thought of Thomas Aquinas may be answered with the well- known but What the relation of human laws to the eternal and natural law is. The natural law is promulgated by God: "God has instilled it into human minds so as to be known by them naturally Divine law is derived from eternal law as it appears historically to humans, call positive law, the laws actually enacted and put in force in our human communities . The Relation of Human and Natural Law. positive moral claims are literally true (for this conception of moral realism, see The eternal law, for Aquinas, is that rational plan by which all When we focus on the recipient of the natural law, that is, us human . (For a discussion of the relationship between proportionalism and natural law theory see.
It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law. While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles.
There will still be coordination problems e. Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. Rather she claims only that such discretion is necessarily limited by moral norms: Critics of conceptual naturalism have raised a number of objections to this view.
First, it has often been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons. As Austin petulantly put the point: Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense.
Natural Law | Internet Encyclopedia of Philosophy
The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity Austin Of course, as Brian Bix points out, the argument does little work for Austin because it is always possible for a court to enforce a law against a person that does not satisfy Austin's own theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just.
Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy18 put the point: The important things [conceptual naturalism] supposedly allows us to do e. If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law.
There are a couple of problems with this line of objection. First, conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of moral criticism: Thus, the state commits wrong by enforcing that norm against private citizens.
Conceptual jurisprudence assumes the existence of a core of social practices constituting law that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications.
A more interesting line of argument has recently been taken up by Brian Bix Following John FinnisBix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally: A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust laws are not laws "in the fullest sense.
Similarly, to say that an unjust law is "not really law" may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with "higher law" Bix Nevertheless, while a plausible case can be made in favor of Bix's view, the long history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely.
Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. According to Finnis, the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: On Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion a view he shares with Ronald Dworkin.
Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not fully law.
Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about.
Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good. On Finnis's view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods.
Thus, Finnis sums up his theory of law as follows: Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity: Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law.
Unjust laws may obligate in a technical legal sense, on Finnis's view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide. Thus, Finnis argues that "a ruler's use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' or party's or faction's advantage, or out of malice against some person or group" Finnis For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community's co- ordination problems" Finnis Finnis's theory is certainly more plausible as a theory of law than the traditional interpretation of classical naturalism, but such plausibility comes, for better or worse, at the expense of naturalism's identity as a distinct theory of law.
Indeed, it appears that Finnis's natural law theory is compatible with naturalism's historical adversary, legal positivism, inasmuch as Finnis's view is compatible with a source-based theory of legal validity; laws that are technically valid in virtue of source but unjust do not, according to Finnis, fully obligate the citizen. Indeed, Finnis believes that Aquinas's classical naturalism fully affirms the notion that human laws are "posited.
ST. THOMAS AQUINAS ON LAW | Schoenstatt Scotland
The Procedural Naturalism of Lon L. Fuller Like Finnis, Lon Fuller rejects the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality.
On Fuller's view, human activity is necessarily goal-oriented or purposive in the sense that people engage in a particular activity because it helps them to achieve some end.
Insofar as human activity is essentially purposive, according to Fuller, particular human activities can be understood only in terms that make reference to their purposes and ends.
Thus, since lawmaking is essentially purposive activity, it can be understood only in terms that explicitly acknowledge its essential values and purposes: The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort Fuller To the extent that a definition of law can be given, then, it must include the idea that law's essential function is to "achiev[e] [social] order through subjecting people's conduct to the guidance of general rules by which they may themselves orient their behavior" Fuller Fuller's functionalist conception of law implies that nothing can count as law unless it is capable of performing law's essential function of guiding behavior.
And to be capable of performing this function, a system of rules must satisfy the following principles: P1 the rules must be expressed in general terms; P2 the rules must be publicly promulgated; P3 the rules must be prospective in effect; P4 the rules must be expressed in understandable terms; P5 the rules must be consistent with one another; P6 the rules must not require conduct beyond the powers of the affected parties; P7 the rules must not be changed so frequently that the subject cannot rely on them; and P8 the rules must be administered in a manner consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve law's essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy P2 or P4for example, cannot guide behavior because people will not be able to determine what the rules require.
Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that they are built into the existence conditions for law. These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two respects: Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fuller's view, that they constitute a morality.
Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist. Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of classical naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law, holding instead that there are necessary moral constraints on the procedural mechanisms by which law is made and administered: Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists.
The classical naturalists view morality as providing substantive constraints on the content of individual laws; an unjust norm, on this view, is conceptually disqualified from being legally valid.
In contrast, Fuller views morality as providing a constraint on the existence of a legal system: Fuller's procedural naturalism is vulnerable to a number of objections. Hart, for example, denies Fuller's claim that the principles of legality constitute an internal morality; according to Hart, Fuller confuses the notions of morality and efficacy: Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles.
But to call these principles of the poisoner's art "the morality of poisoning" would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned Hart On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have their own internal standards of efficacy.
But insofar as such standards of efficacy conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral standards. Thus, while Hart concedes that something like Fuller's eight principles are built into the existence conditions for law, he concludes they do not constitute a conceptual connection between law and morality.
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Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral ideals of fairness. For example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably calculated to give notice of what is required.
Similarly, we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its internal standards of efficacy, but such standards are distinguishable from the principles of legality in that they conflict with moral ideals. Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles of efficacy.
As Fuller would likely acknowledge, the existence of a legal system is consistent with considerable divergence from the principles of legality. Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of vagueness.
And officials all too often fail to administer the laws in a fair and even-handed manner even in the best of legal systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior. Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditions and not because they function as moral ideals.
Eternal and Natural Law: The Foundation of Morals and Law
Ronald Dworkin's "Third Theory" Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism, which is essentially constituted by three theoretical commitments: The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature.
The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials.
Thus, for example, the U. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states. The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality.
As Hart more narrowly construes it, the Separability Thesis is "just the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" Hart Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition Dworkinp.
Palmer, for example, the court considered the question of whether a murderer could take under the will of his victim. At the time the case was decided, neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victim's will. Despite this, the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong.
On Dworkin's view, the court decided the case by citing "the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills and in this way justified a new interpretation of that statute" Dworkin A good justification for moral or legal rule is that it promotes the preservation of life.
All living things possess an inclination for survival. Sexual intercourse, education of offspring and the life have a proper place in human life, as in other animal life. Humans are under an obligation to avoid ignorance, to seek to know God and to avoid offending those among whom one has to live. He does not like the idea of natural law as a rule-book. Laws which fall short of what they should be, are not true laws at all. Law is always directed to the common good, human law is no different.
Promotion of virtue is necessary for the common good, and human laws are instruments in the promotion of virtue.
It is good to codify and draw up laws. Deliberation is important in designing laws and laws are necessary to guide judgment. All human laws must be directed toward the common good.
Specific laws for merchants for example, are general in some way; applicable in more than one case. We should also not over legislate. For Thomas, human laws are particular determinations of natural laws. It is law with moral content, being more general than human law.
The Natural Law Tradition in Ethics
It deals with necessary rather than variable or changeable things. Natural law is more perfect than human law for natural law is not variable. Human laws are applications of natural law and cannot deviate from the spirit of the natural law. It is part of our high calling as creatures made by God.