Wednesday, October 21, 2009

Natural Law: An Introduction—Part 2

"Crow on a Cherry Branch," Okuhara Seiko (1837 - 1913) © Smithsonian Institution.

“In Locke’s state of nature there are binding moral duties, including a duty of self-preservation and, given natural equality and reciprocity, a duty to preserve others, a duty not to take the life of another and a duty not to do what tends to destroy others by impairing their liberty, health or property. (These duties seem to be derived from the fundamental law of nature, which is the preservation of humankind.). Citing Richard Hooker’s views, Locke holds that the recognition of moral equality also gives rise to positive duties of benevolence and beneficence.”—Martha C. Nussbaum

Although positivist legal theorists “take their theories to be opposed to, or at least clearly distinct from, natural law theory,” natural law theorists “have not conceived of their theories in opposition to, or even as distinct from, legal positivism.”—John Finnis

“Natural law theory accepts that law can be considered and spoken of both, as a sheer social fact of power and practice, and as a set of reasons for action that can be and often are sound as reasons and therefore normative for reasonable people addressed by them.”—John Finnis

“The fulcrum and central question of natural law theories of law is: How and why can law…give its subjects sound reason for acting in accordance with it? How can a rule’s, a judgment’s, or an institution’s legal (‘formal,’ ‘systemic’) validity, or its facticity or efficacy as a social phenomenon (e.g., of official practice), make it authoritative in its subject’s deliberations?”—John Finnis

“[N]atural law theory holds that law’s ‘source-based character’—its dependence upon social facts such as legislation, custom or judicially established precedents—is a fundamental and primary element in ‘law’s capacity to advance the common good, to secure human rights, or to govern with integrity.’”—John Finnis

While law is “normally [an] indispensable instrument of great good”… [it nonetheless can become] “an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so, both in settling the content of its rules and principles and in the procedures and institutions by which they make and administer it.”—John Finnis

“If one thinks perceptively and carefully about what to pursue (or shun) and do (or forbear from), one can readily understand and assent to practical propositions such as that life and health, knowledge and harmony with other people are desirable for oneself and for anyone else. The intrinsic desirability of such states of affairs as one’s flourishing in life and health, in knowledge and in friendly relations with others, is articulated in foundational, underived principles of practical reasoning (reasoning towards choice and action). [….] A natural law moral theory will give us an account of the way in which first principles of practical reason take on a moral force by being considered, not one by one but in their united (‘integral’) directedness. That integral directedness is given specific (albeit highly general) articulation in principles such as the injunction to love one’s neighbor as oneself; or the Golden Rule of doing for others what you would want them to do for you and not doing to others what you would not have them to do to you; or in the ‘categorical-imperatives’ to respect, and treat intrinsically valuable humanity (the basic aspects of human flourishing) in oneself and in others, so that each of one’s communities is treated as a [Kantian-like] kingdom of ends—of persons each ends in themselves” (John Finnis). These higher level moral principles can be given further specification, what Aquinas called determinatio, through the institution of governmental authority acting in the first instance through legislation and other forms of law-making. The political-theoretical part of natural law theory should address—explain and elaborate—the corresponding (moral) grounds of political obligation and the proper forms of governmental authority.

“Social facts make a positive legal rule a reason for action because the desirability of authority as a means of securing common good, and the desirability of the ‘rule of law and not of men,’ are standing and potent reasons for acknowledging such facts as an instance of valid legislation giving presumptively sufficient reason for compliance. Purely positive law that is legally valid is (presumptively and defeasibly) valid and binding morally—has the moral form or meaning of legal obligatoriness—when and because it takes its place in a scheme of practical reasoning whose practical starting-point is the range of basic ways in which human well-being can be promoted and protected, the way picked out in practical reason’s first principles.”—John Finnis

The defeasibility of the presumptive obligatoriness of authoritative reasons “is entailed by the dependence of such reasons’ peremptory, pre-emptive or exclusionary force upon a background of presupposed basic human needs and goods, and of basic moral principles and norms, a background which entails that if a purportedly authoritative proffered (posited) reason conflicts sufficiently clearly with those standing needs, good, principles or norms, its exclusionary force is exhausted or overcome and the purported obligatoriness defeated.”—John Finnis

“[B]oth the effectiveness of laws as solutions to coordination problems and promoters of common good, and the fairness of demanding adherence to them, are dependent on there being both by the subjects and administrators of the legal system as legally and morally entitled, precisely as validly made law, to prevail against all other reasons save competing moral obligations of greater strength.”—John Finnis

“The positivist thesis that all law depends for its existence, validity and obligatoriness on its social-fact source(s) is often accompanied, as in [Joseph] Raz’s ‘exclusive legal positivism,’ by the thesis that judges, as the ‘primary law-applying institutions,’ have a duty to decide certain sorts of case (e.g., cases where the existing legal rule would work injustice) by applying moral principles or rules or rules which warrant amending or even abandoning part of the existing law.”—John Finnis

“Natural law theories hold as strongly as any positivist theory that sound and legitimate adjudication gives priority to conscientious and craftsman-like attention to social-fact sources and to rules and principles pedigreed by such sources, [and] sets them aside only if and to the extent that they are ‘too iniquitous to be applied,’ and tailors the resultant new rule so as to cohere as far as possible with all the other (not too iniquitous) doctrines, rules and principles of the particular legal system in which the judge has jurisdiction.”—John Finnis

“Most people now do not need natural law for instruction regarding clear-cut issues like genocide, slavery, or sexual molestation. But the fact that these issues are ‘clear-cut’ seems to be a tribute to the fact that at a certain junction in history, at least implicit natural-law considerations were influential in bringing about new moral insights and changing prevailing practices.” —Howard P. Kainz

“Let us take telling examples of Natural Law assertions:
‘All human beings seek self-preservation.’ (factual-seeming)
‘All human beings are entitled to survive.’ (evaluative)
‘A human being cannot seek self-preservation and with consistency deny the same right or urge to another.’ (a seemingly logical truth)
‘All human beings are equally entitled to freedom of choice, thought, speech, and action.’ (evaluative)—liberty, negative or positive
‘All human beings are equally entitled to some minimal respect worthy of human stature.’(evaluative)—minimal egalitarianism
All human beings are entitled to equal respect and equal opportunities of self-expression and self-fulfillment.’ (evaluative)—strict egalitarianism
‘No human being should act toward another in a manner that he or she would not wish anyone else to act toward him or her.’ (evaluative)—the Golden Rule
[….] In general, such assertions are not merely definitions of ‘man’ or decisions of principle, and they certainly are not contingent truths. If we could correctly characterize them we might be in a position to show that the criticism of the logical positivists [i.e., that the concept of Natural Law ‘is wholly empty of empirical content and cognitive meaning;’ legal positivists, on the other hand, contend ‘the concept is empty of operative force and practical import’] is irrelevant rather than false. Natural Law assertions are often about what a human being must be assumed to be, or how human beings must be treated if we are to assign abiding, universal, and meaningful status to being human; that is, if we are to regard all human beings (biologically defined) as rational and moral agents, or if we are to differentiate decisively between the human and other species of beings without detaching man entirely form nature. It is important to concede that the word must necessarily introduces a metaphysical (a non-empirical as well as non-evaluative) element into every careful formulation of Natural Law.”—Raghavan Iyer

“Inasmuch as the concept of Natural Law contains a minimal element, it is an attempt at the definition of ‘man’ and the articulation of the foundations of human existence in a social and cosmic context. Insofar as it contains a maximal element, it is plainly metaphysical, passing beyond the boundaries of presently verifiable experience. However, between minimal and maximal ranges of meaning, the concept touches upon generally shared (or at least sharable) notions of human self-awareness, felt needs and ideals, common feelings of deprivation, self-alienation, and moral autonomy, as well as mutually recognizable signs of striving after a deeper and larger fulfillment than is capable of conceptualization. Natural Law has often been articulated with a stress on features that seem to be defined with dogmatic certainty, but essentially it expresses a deep sense of wonder, reverence, and agnosticism as to the unknown possibilities of human growth.”—Raghavan Iyer

Please Note: A list of "References and Further Reading" will be appended to the third and final post in this series.

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