Natural Law "Externalism" v. Law as "Moral Aspiration"
Here is a link to a just revised paper (from 2011): “Natural Law ‘Externalism’ v. Law as Moral Aspiration.” It makes an argument against Thom Brooks’ characterization of the natural law
tradition’s concept of justice as “external” to the law, in contrast with
Hegel’s peculiar “internalist” conception of natural law. I’m not so much interested in Brooks’
interpretation of Hegel on this score as his rendering of the concept and
conceptions of justice and law as found generally in natural law traditions and
formulations.
“As it turns out, Marx himself, at
least in his early years, recognized the relationship between the rule of law
and substantive equality. In 1842, Marx criticized the Prussian censorship laws
in rule of law terms, claiming that such ‘laws without objective norms are laws
of terrorism, such as those created by Robespierre’ and ‘positive sanctions of
lawlessness.’ Going on, he criticizes the law as ‘an insult to the honor of the
citizen’ and ‘a mockery directed against my existence,’ in virtue of the fact
that it is ‘not a law of the state for the citizenry, but a law of a party
against another party’ which ‘cancels the equality of citizens before the
law.’”
“One law for the lion and for the ox is
indeed oppression, if that law requires everyone to eat meat or to grow a mane.
And in a world where some people have a lot, and others are destitute, treating
people how equals ought to be treated means taking from the former and giving to
the latter. As it turns out, this is the correct interpretation not just of the
ideal of distributive justice, but of the proposition that all are to be equal
under the law. And this is a valuable discovery independent of distributive
justice theory.”
“The rule of law is both an unqualified
human good and a tool in the fight against social injustice.”—Paul Gowder
These quotes from a recent paper by
Paul Gowder, “Equal Law in an Unequal World,” while not about natural law theory
proper, suggest if not capture that type of natural law reasoning about the “moral ideal of the
rule of law” and justice found in the natural law tradition and thus help
illustrate how notions of justice and morality are not, pace Thom Brooks, “extrinsic” to the
rule of law.
Please note: The
SSRN link I provide to Brooks’ paper in my essay no longer allows its download
(only the abstract), apparently because it is now part of a collection of essays
in a volume edited by Brooks: Hegel’s Philosophy of Right
(Wiley-Blackwell, 2012): 167-179.
0 Comments:
Post a Comment
<< Home