Tuesday, October 27, 2009

Natural Law: An Introduction—Part 3

"Bamboo stems with branches and folia," Kishi Ganku (Japanese, 1749-1838), Edo period. © Smithsonian Institution


“Ever since Antigone’s resistance to Creon’s prohibition against performing the rights of burial for her brother, and ever since the controversy over the essence of right and justice among Sophists and Platonists, that is, from the very outset of Occidental legal thought, philosophers have asked themselves whether positive law is committed to general moral principles. These principles of legal morality have been articulated in theories of natural law or justice.”— Otfried Höffe

“In the Enlightenment, natural law as a discipline [was] grounded exclusively on reason and independently of doctrinal elements. …[I]t belonged both to the faculty of jurisprudence and to that of philosophy.”—Otfried Höffe

“Before the Americans and French declared the rights of man, the leading proponents of universalism lived on the margins of the great powers. Perhaps that very marginality enabled a handful of Dutch, German, and Swiss thinkers to take the initial lead in arguing that rights were universal. As early as 1625, a Dutch Calvinist jurist, Hugo Grotius, put forward a notion of rights that was applicable to all of mankind, not just one country or legal tradition. He defined ‘natural rights’ as something self-possessed and conceivably separate from God’s will. He also suggested that people could use their rights—unaided by religion—to establish contractual foundations for social life. His German follower Samuel Pufendorf, the first professor of natural law at Heidelberg, featured Grotius’s achievements in his general history of natural law teachings in 1678. Although Pufendorf criticized Grotius on certain points, he helped solidify Grotius’s reputation as a prime source of the universalist stream of rights thinking.”—Lynn Hunt

“The Swiss natural law theorists built upon these ideas in the early eighteenth century. The most influential of them, Jean-Jacques Burlamaqui, taught law in Geneva. He synthesized the various seventeenth-century natural law writings in The Principles of Natural Law (1747). Like his predecessors, Burlamaqui provided little specific legal or political content to the notion of universal human rights; his main purpose was to prove their existence and their derivation from reason and human nature. He updated the concept by linking it to what the Scottish philosophers called an internal moral sense…. Immediately translated into English and Dutch, Burlamaqui’s work was widely used as a kind of textbook of natural law and natural rights in the last half of the eighteenth century. Rousseau, among others, took Burlamaqui as a point of departure. Burlamaqui’s work fed a more general revival of natural law and natural rights theories across Western Europe and the North American colonies. [….] Grotius, Pufendorf, and Burlamaqui were all well known to American revolutionaries, such as Jefferson and Madison, who read in the law.”—Lynn Hunt

“Having grown up with natural law theory and the associated moral philosophy, it is hardly strange that Americans found use for such ideas in their own writings and, eventually, in the documents of independence and constitution-building.”—Knud Haakonssen

“Certain basic rights are inalienable because they are duties under natural law, and all other duties/rights derive their ultimate justification more or less directly from these. None of the American theoreticians put forward a clear idea of rights as underived, primary features of the person, and one inevitably gets the impression that some of the apparent moral certainty stemmed from the fact that Americans stayed well within the comfortable moral world of traditional natural law theory, with its assurance of an in-principle harmony of individual rights and duties.”—Knud Haakonssen

“The persons known as major German war criminals were tried in 1945 for offenses specified in an agreement (‘the London Agreement and Charter 8 August 1945’) made between the states governing Germany since its surrender to them. The judges held that the defendants had at all relevant times been bound by (and in many instances had acted in violation of) the principles or rules specified in the London Charter, such obligations being derived not, of course, from the agreement (which was made subsequent to the acts in question), but rather, as to some of the crimes alleged, from international law and, as to the alleged ‘crimes against humanity,’ from the ‘elementary dictates of humanity.’ To hold the defendants responsible for violating these rules and dictates, and reject any argument that their acts’ compliance with German law could make the acts lawful, was not (so the tribunal ruled) to violate the principle of law and justice that no one should be punished except for violation of law. The result of these rulings might be accounted for by (i) exclusive positivism: the tribunal was morally authorized to apply moral rules, notwithstanding that the rules so applied were not rules of law either at the time of the crimes or the time of the prosecution. But the terms of the rulings (as just summarized) can be accounted for (ii) by inclusive positivism: the Charter was positive law for the tribunal and directed it to apply moral rules which by virtue of that direction were also legal rules. Still, (iii) natural law theory’s account seems the most explanatory: the moral rules applied were also rules of the ‘higher law’ applicable in all times and places (and thus in Germany and its territories, before as after the Charter) as a source of argumentation and judgment ‘according to law’ when the social-fact sources which are the normally dominant and quasi-exclusive source of law are, in justice, inadequate and insufficient guides to fulfilling obligations such as the judicial obligation to do justice according to law, or everyone’s obligation to behave with elementary humanity even when under orders not to—even if those orders have intra-systemic legal validity according to the formal or social-fact criteria of some existing legal system. And if one has doubts about victors’ justice, those very doubts can likewise appeal to principles of the same higher law, jus gentium, or law of reason and humanity.”—John Finnis

“The reluctance of legal positivists to provide a set of basic international norms that could conclusively mandate international legal intervention for a wide array of human rights abuses, such as prosecuting Nazi war criminals, led many theorists to look back to the natural law tradition. Justice Robert H. Jackson, the chief American prosecutor at the Nuremberg trials, said that he saw himself representing all of humanity as he sought to punish those Nazi leaders who had committed ‘atrocities and persecutions on racial or religious grounds.’ Jackson argued that the Martens Clause of the Hague Convention of 1907 provided two related sources of international law from which a defense of international tribunals could be derived. International interventions are justified by reference to ‘the principles of the law of nations, as they result from the usages established among civilized peoples, [1] from the laws of humanity, and [2] the dictates of public conscience. On this view, there are principles of natural law that are somehow enshrined in the public conscience. What offends the public conscience in international crimes is that humans are treated in ways that no human should have to bear—namely, to be made to suffer arbitrarily. Arbitrary suffering is here treated as clearly wrong from the natural law perspective since it violates the most basic standards of how humans regard each other, and how humans know, in the light of reason, that they should behave. Humans are supposed to treat each other with minimal decency based on the idea that human personhood has a core of intrinsic value that must always be respected.”—Larry May

“Law’s effectiveness is dependent on the moral legitimacy of the law. In this…I follow Lon Fuller, a paradigmatic moral minimalist, who attempted to provide a middle ground between legal positivism and robust natural law theory. [….] [I]n a pluralistic society or world community, it makes prudential good sense to link wide-scale acceptance to normative justification. For law to be effective, there must be such acceptance, but the acceptance is not what justifies the norms. Rather it is the moral legitimacy of law that both provides a justification for its enforcement and also creates wide-scale acceptance. There is a minimum moral or natural law content that laws must display to be legitimate. This is what I am calling the ‘moral legitimacy’ of the law. The morality of law does not need to be robust for law to be legitimate. Here there is a set of moral principles, recognized in virtually every legal system, that makes a law worthy of being enforced. Such moral principles ultimately protect the inner normative core of law by guaranteeing that the law is, in some rudimentary way, fair.”—Larry May

“[Intuitionism] has three main characteristics: (1) It is an ethical pluralism, in the sense that it affirms an irreducible plurality of basic moral principles…. (2) Each principle centers on a different ground for action, conceived as a factor implying a prima facie moral duty and knowable by ordinary moral agents. The ground itself might be an action, like making a promise; a cognition, such as noticing a person will bleed to death without one’s help; or an accessible fact, such as the possibility that one can contribute to the well-being of others. It is in virtue of grounds of these sorts that one has the duty in question. (3) Each moral principle is taken to be in some sense intuitively know by those who appropriately understand it.”—Robert Audi

Epistemologically, intuitionism “is roughly the thesis that basic moral judgments and basic moral principles are non-inferentially knowable and that, for those who justifiedly hold them non-inferentially, they are justified by, and constitute knowledge on the basis of, the non-inferential deliverance of reason.”—Robert Audi

Prima facie duties in the intuitionist sense are “ineradicable but overridable.” Indeed, as in the case of W.D. Ross’s intuitionism, once we appreciate that the “primary role of intuition is to give us direct, i.e., non-inferential knowledge (or at least justified belief) of the truth, rather than of the self-evidence, of moral propositions (especially certain moral principles), there is less reason to think that moral beliefs resting on an intuitive apprehension of principles are indefeasibly justified. [….] The view that the justification of moral intuitions is defeasible…is quite consistent with [Ross’s] claim that the self-evident truths in question do not admit of proof. That a true proposition does not admit of proof is an epistemic fact about it and leaves open that a person might have only poor or overridden grounds for believing it. It is true that paradigm cases of presumptively unprovable propositions—such as luminously self-evident simple axioms—invite the sense of indefeasibility. But a proposition’s having the epistemic status of unprovability does not entail that one cannot lose one’s justification for believing it, or fail to become justified in believing it upon considering it, or even fail to find it intuitive and for that reason not come to believe it at all.”—Robert Audi

“Rossian principles of duty (though perhaps not exactly Ross’s list of them) may be argued to be just the general moral principles one would derive—even, if not strictly deduce—from a careful application of the [Kantian] categorical imperative to everyday life. For instance, if one is to avoid treating people merely as means—and so to realize the negative standard expressed by the categorical imperative—one must recognize (prima facie) duties of non-injury (including avoidance of murder, brutality and theft), of reparation and of fidelity and veracity’ and if one is to treat people positively as ends—and so to realize the positive standard it expresses—one must recognize duties of beneficence, gratitude, self-improvement, and justice…. [….] If a Kantian intuitionism is viable, and if principles of the kind Ross proposed can serve as middle axioms, we have made a theoretical advance.”—Robert Audi

“We may still wonder what it is about persons in virtue of which, for Kant, they must be treated as ends. Kant employs a number of notions. Consider just one: dignity. This may in turn be taken to be based on autonomy, rationality, or other characteristics of persons. The most important point here is that dignity is a moral value. This is in part to say that it is essential to it that beings possessing it have moral rights. In part, to call the dignity of persons a moral value is to say that in virtue of it there are moral reasons to act in a certain way toward them and that certain other ways of acting toward them are wrong. A second important point about dignity—or indeed any comparably broad moral value that might ground the categorical imperative (such as ‘worth’), is that there is a far-reaching moral attitude that goes with it: respect for persons. If this is so, we might take both dignity and respect for persons as fundamental elements in a value-based intuitionism.”—Robert Audi

[The Natural Duty of Justice] is “the obligation each of us has to treat every person with equal concern and respect,” and “according to which each of us—independently of which institutions we find ourselves in or the special commitments we have undertaken—has a limited moral obligation to help ensure that all persons have access to institutions that protect their basic rights.”—Allen Buchanan

References and Further Reading:
(Several of these books simply contain brief discussions of natural law, ideas similar to those found in the natural law tradition, or insights explicitly or implicitly in support of natural law philosophy. I make the assumption that natural law need not be religious in formulation even if it is often religious in inspiration or motivation, hence there is such a thing as ‘secular’ or philosophical natural law, as we see quite early and clearly with the Stoics.)
  • Alexy, Robert. The Argument from Injustice: A Reply to Legal Positivism. Oxford, UK: Clarendon Press, 2002.
  • Audi, Robert. The Good in the Right: A Theory of Intuition and Intrinsic Value. Princeton, NJ: Princeton University Press, 2004.
  • Bix, Brian H. ‘Natural Law: The Modern Tradition,’ in Jules Coleman and Scott Shapiro, eds. The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press, 2002: 61-103.
  • Buchanan, Allen. Justice, Legitimacy and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
  • Cunningham, Lawrence S. Intractable Disputes about the Natural Law: Alasdair MacIntyre and His Critics. Notre Dame, IN: University of Notre Dame Press, 2009.
  • Dworkin, Ronald. Law’s Empire. Cambridge, MA: Harvard University Press, 1986.
  • Finnis, John. Natural Law and Natural Rights. Oxford, UK: Clarendon Press, 1982 ed.
  • Finnis, John. Aquinas: Moral, Political, and Legal Theory. Oxford, UK: Oxford University Press, 1998.
  • Finnis, John. “Natural Law Theories,” The Stanford Encyclopedia of Philosophy (Spring 2007), Edward N. Zalta (ed.), URL =
    http://plato.stanford.edu/archives/spr2007/entries/natural-law-theories/.
  • George, Robert P. In Defense of Natural Law. New York: Oxford University Press, 1999.
  • George, Robert P., ed. Natural Law Theory: Contemporary Essays. Oxford, UK: Clarendon Press, 1992.
  • George, Robert P. and Christopher Wolfe, eds. Natural Law and Public Reason. Washington, DC: Georgetown University Press, 2000.
  • George, Robert P., ed. Natural Law. Aldershot: Ashgate, 2003.
  • Gomez-Lobo, Alfonso. Morality and the Human Goods: An Introduction to Natural Law Ethics. Washington, DC: Georgetown University Press, 2002.
  • Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, UK: Cambridge University Press, 1996.
  • Höffe, Otfried (Alexandra Newton, trans.). Kant’s Cosmopolitan Theory of Law and Peace. Cambridge, UK: Cambridge University Press, 2001.
  • Hunt, Lynn. Inventing Human Rights: A History. New York: W.W. Norton, 2007.
  • Iyer, Raghavan. “The Open Texture of Natural Law,” in his Parapolitics: Toward the City of Man. New York: Oxford University Press, 1979, pp. 50-60.
  • Janis, Mark W. An Introduction to International Law. New York: Aspen Law & Business, 3rd ed., 1999.
  • Kainz, Howard P. Natural Law: An Introduction and Re-examination. Chicago, IL: Open Court, 2004.
  • Maritain, Jacques. The Rights of Man and Natural Law. New York: Charles Scribner’s Sons, 1943.
  • May, Larry. Crimes Against Humanity: A Normative Account. Cambridge, UK: Cambridge University Press, 2005.
  • May, Larry. War Crimes and Just War. Cambridge, UK: Cambridge University Press, 2007.
  • Murphy, Mark C. Natural Law and Practical Rationality. Cambridge, UK: Cambridge University Press, 2001.
  • Murphy, Mark C. “The Natural Law Tradition in Ethics,” The Stanford Encyclopedia of Philosophy, (Winter 2002), Edward N. Zalta (ed.), URL =
    http://plato.stanford.edu/archives/win2002/entries/natural-law-ethics/.
  • Murphy, Mark C. Natural Law in Jurisprudence and Politics. New York: Cambridge University Press, 2006.
  • Novak, David. Natural Law in Judaism. Cambridge, UK: Cambridge University Press, 1998.
  • Nussbaum, Martha C. Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge, MA: Belknap Press of Harvard University Press, 2006.
  • Paul, Ellen Frankel, Fred D. Miller, Jr., and Jeffrey Paul, eds. Natural Law and Modern Moral Philosophy. Cambridge, UK: Cambridge University Press, 2001.

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