Abstract
Natural law philosophy presents a critique of the positivist conception of law. It defines the law as subject to criteria of (absolute) religious, social, or political justice, leading to a profound intertwinement of the formal validity of law and its moral merits or dismerits. Historically, natural law philosophy can be divided into the classical, scholastic, rationalist, and modern natural law thinking. Here, emphasis is on the more modern variants of natural law thinking. After World War II, several criteria have been suggested for restraining the discretion of the legislator and the courts of justice. Lon L. Fuller forcefully defended the idea of the internal, i.e. institutional or procedural, morality of law. He also made the distinction between the two kinds of morality: the morality of duty and the morality of aspiration. Still, it is only the requirement of due promulgation of laws that is placed under the criteria of a morality of duty, softening the edge of Fuller’s philosophical stance. Moreover, Fuller’s eight criteria for the internal morality of law are better aligned with parliamentary legislation than with judge-made common law, and a totally different set of criteria would be needed for the latter. H. L. A. Hart’s idea of the minimum content of natural law is based on a set of contingent but still true ideas concerning human nature and society. In the light of Hart’s debate with Fuller, I defend the argument that Hart’s idea of the “core of good sense in natural law” ought to be read as a set of technical norms only, devoid of any genuinely moral content. Finally, according to John Finnis, human experience teaches us that there are seven basic values or basic goods that the legislator, courts of justice, and other officials ought to observe, viz. life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and “religion”. Contrary to what Finnis writes, the allegedly self-evident, a priori character of such basic values is far from patent, and it seems that Finnis’ line of argument ends up in a logical circle. The greatest value or, depending on the preferences and aversions of the observer, the worst failure of natural law thinking is the intertwinement of the law with religious, political, or social morality.
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Notes
- 1.
“The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the from the text, by which we regulate our approbation and disapprobation.” Austin, The Province of Jurisprudence Determined, p. 157.
- 2.
Kelsen, Reine Rechtslehre (1960), p. 1 et seq.
- 3.
The term “inherent object-specific structures (of law)”, being an approximate equivalent of the German expression die immanente sachliche Wesensstruktur (des Rechts), refers to Hans Welzel’s legal phenomenology. Larenz, Methodenlehre der Rechtswissenschaft, p. 111. – On legal phenomenology, Pallard and Hudson, “Phenomenology of Law”; Minkkinen, Thinking without Desire, chapters “In an Orderly World” (pp. 48–65) and “Right Things to Come” (pp. 66–82).
- 4.
There can be no post-modern natural law philosophy, due to the denial of any Grand Theory of Law under the distinctively post-modern premises of social analysis, and the idea of (absolute) social justice is of course a prime example of a grand theory in law.
- 5.
Finnis, “Natural Law: The Classical Tradition”, p. 5.
- 6.
Aristotle, Nikomachean Ethics, p. 1796 (Book V, lines 20–32).
- 7.
Thomas Aquinas, (Extracts from) The Summa Theologica, Question 91 (“Of the Various Kinds of Law”), p. 137 et seq.
- 8.
Thomas Aquinas, (Extracts from) The Summa Theologica, Question 91 (“Of the Various Kinds of Law”), Second Article (“Whether the Natural Law Contains Several Precepts, or One Only?”), pp. 156–157: “I answer that, As stated above (Q. XCI., A. 3), the precepts of the natural law are to the practical reason, what the first principles of demonstrations are to the speculative reason; because both are self-evident principles. (…) Consequently the first principle in the practical reason is one founded on the notion of good, viz., that good is that which all things seek after. Hence this is the first precept of law, that good is to be done and ensued, and evil is to be avoided. All other precepts of the natural law are based upon this: so that whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of the natural law as something to be done or avoided.’ (Italics in original.) – Cf. Finnis, Natural Law and Natural Rights, p. 33: “… Aquinas asserts as plainly as possible that the first principles of natural law, which specify the basic forms of good and evil and which can be adequately grasped by anyone of the age and reason (and not just by metaphysicians), are per se nota (self-evident) and indemonstrable.”
- 9.
Thomas Aquinas, (Extracts from) The Summa Theologica, Question 90 (“Of the Essence of Law”), Fourth Article (“Whether Promulgation Is Essential to a Law?”), p. 137. (Italics added.)
- 10.
“I answer that, As Augustine says (De Lib. Arb. i. 5), that which is not just seems to be no law at all: wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule reason is the law of nature, as is clear from what has been stated above (Q. XCI, A. 2 ad 2). Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.” Thomas Aquinas, (Extracts from) The Summa Theologica, Question 95 (“Of Human Law”), Second Article (“Whether Every Human Law Is Derived from the Natural Law?”), p. 166 (Italics in original.) – Cf. Finnis, Natural Law and Natural Rights, pp. 351–368, where the author gives a profound analysis of the issue.
- 11.
On the notion of rights as “trumps” in legal argumentation, Dworkin, Taking Rights Seriously, pp. 82–84, 364–366.
- 12.
“Obgleich die Rechtswissenschaft Rechtnormen und sohin die durch sie konstituierten Rechtswerte zum Gegenstand hat, sind doch ihre Rechtssätze – so wie die Naturgesetze der Naturwissenschaft – eine wertfreie Beschreibung ihres Gegenstandes.” Kelsen, Reine Rechtslehre (1960), p. 84. (Italics added.) Cf. Kelsen, Pure Theory of Law, p. 79. The translation of Kelsen’s main work into English is notoriously less than perfect. Notably, the key term “Rechtssätze” (i.e. legal sentences) is translated as “the rules of law”, which is certain to lead the reader astray, unless she knows enough German to be able to consult the original version of the text.
- 13.
Kelsen, Reine Rechtslehre (1960), p. V; Kelsen, Reine Rechtslehre (1934), pp. XII–XIII. – Kelsen of course was of a Jewish origin and had to emigrate from Germany first to Austria in 1933 and, then, from Austria to the United States in 1940, following the annexation of Austria to Germany in 1938. In 1945, Kelsen published General Theory of Law and State, i.e. an English translation of two of his earlier books Allgemeine Staatslehre (1925) and the first edition of Reine Rechtslehre (1934). Kelsen died in 1973.
- 14.
Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht”; Radbruch, “Fünf Minuten Rechtsphilosophie”. – “There are accordingly grounding legal principles that are stronger than any legal decrees of positive law, so that an enactment that is in conflict with such a principle is void of legal validity. One calls such basic legal principles natural law or law of reason.” (Translation by the present author.) Cf. “Es gibt also Rechtsgrundsätze, die stärker sind als jede rechtliche Satzung, so daß ein Gesetz, das ihnen widerspricht, der Geltung bar ist. Man nennt diese Grundsätze das Naturrecht oder das Vernunftrecht.” Radbruch, “Fünf Minuten Rechtsphilosophie”, p. 328.
- 15.
Ronald Dworkin’s legal philosophy was considered at length above in the context of legal coherence, so I will not re-enter that line of discussion anew. Ronald Dworkin’s philosophy of law and the notion of legal principles has been coined the “third theory of law” by J. L. Mackie, since elements drawn from both legal positivism and natural law philosophy are present in it. Thus, the two criteria by means of which Dworkin depicts legal principles, i.e. institutional support and sense of approval in the community, are linked to the basic ideas of analytical legal positivism and natural law philosophy, respectively.
- 16.
Fuller, The Morality of Law, p. 33 et seq.
- 17.
Fuller, The Morality of Law, pp. 33–94, and p. 39 in specific. In Fuller’s dense rhetorics of law, these failures are described as “eight distinct routes to disaster”. Fuller, The Morality of Law, p. 39. – Cf. Hart, “Lon L. Fuller: The Morality of Law”, pp. 349–353.
- 18.
“In my third chapter [of The Morality of Law] I treated what I have called the internal morality of law as itself presenting a variety of natural law. It is, however, a procedural or institutional kind of natural law …” Fuller, The Morality of Law, p. 184.
- 19.
Fuller, The Morality of Law, p. 39.
- 20.
Siltala, A Theory of Precedent, pp. 165–168, cf. Hart, The Concept of Law (1961), pp. 131–132.
- 21.
On the notion of precedent-ideology and its manifestations in the Great Britain, the United States, Germany, France, Italy, and Finland, cf. Siltala, A Theory of Precedent, pp. 65–148. – The term “precedent-ideology” was suggested to me by Neil MacCormick.
- 22.
However, if the judges in some legal system were in fact committed to the coherence-seeking premises of Ronald Dworkin’s law as integrity, that would imply endorsing a strongly systemic notion of precedents, as well.
- 23.
Cf. the Italian system of precedents where such systemic characteristics would seem to be hard to sustain, Taruffo and La Torre, “Precedent in Italy”, passim.
- 24.
In my earlier book A Theory of Precedent, I argued that the internal morality of law or its equivalent for a system of precedents might entail the following elements: (1) appositeness (i.e. expediency) and adequacy of normative and factual information given in a precedent, or a set of precedents; (2) fair predictability of outcome of legal adjudication; (3) systemic balance (i.e. congruence), with reference to e.g. the judges’ collective stance on precedent-following, the prevalent doctrine and tradition of precedents, and the prevalent doctrine of legal sources at larger; (4) ideological commitment and argumentative skills of those involved; (5) respect for the basic conceptions of justice and fairness in society; (6) and integrity in argumentation. Cf. Siltala, A Theory of Precedent, pp. 165–175. – Looking upon the issue now, a few years later, the list seems somewhat over-elaborated. A shorter list, with reference to the two or three first items of the list might do the job, as well.
- 25.
Alexy, A Theory of Constitutional Rights, pp. 47–48: “The decisive point in distinguishing rules from principles is that principles are norms which require that something be realized to the greatest extent possible given the legal and factual possibilities. Principles are optimization requirements, characterized by the fact that they can be satisfied to varying degrees, and that the appropriate degree of satisfaction depends not only on what is factually possible but also on what is legally possible. The scope of the legally possible is determined by opposing principles and rules.” Cf. Alexy, A Theory of Constitutional Rights, pp. 67–69, 397.
- 26.
Fuller, The Morality of Law, pp. 43, 44: “All of this adds up to the conclusion that the inner morality of law is condemned to remain largely a morality of aspiration and not of duty. Its primary appeal must be to a sense of trusteeship and to the pride of a craftsman. – To these observations there is one important exception. This relates to the desideratum of making the laws known, or at least making them available to those affected by them. Here we have a demand that lends itself with unusual readiness to formalization. (…) With respect to the demands of legality other than promulgation, then, the most we can expect of constitutions and courts is that they save us from the abyss; they cannot be expected to lay out very many compulsory steps towards truly significant accomplishment.”
- 27.
Fuller, The Morality of Law, pp. 41, 43.
- 28.
Fuller, The Morality of Law, pp. 82–83.
- 29.
Perhaps somewhat unexpectedly, Fuller’s open-ended idea of legal interpretation even brings into mind the ideological openness of Hans Kelsen’s Pure Theory of Law, while Fuller’s idea of the inherently purpose-laden character of law of course draws his theory of law miles apart from Kelsen’s purely formal account of law.
- 30.
On the notions of instrumental and technical goodness, cf. von Wright, The Varieties of Goodness, pp. 19–40. Instrumental goodness is related to the judgment of functionality of various kinds of tools and instruments, whereas technical goodness is related to a skill or talent. An accurate watch is an example of instrumental goodness, since it is accurate in timekeeping. A skilful watchmaker, on the other hand, is an example of technical goodness, as he is a competent and talented professional in the field.
- 31.
Hart, “Lon L. Fuller: The Morality of Law”, pp. 343–363, and p. 350 in specific. Cf. Fuller, The Morality of Law, pp. 33–94.
- 32.
Hart, The Concept of Law (1961), p. 194: “The simple truisms we have discussed (…) disclose the core of good sense in the doctrine of Natural Law.”
- 33.
Hart, The Concept of Law (1961), p. 188.
- 34.
Hart, The Concept of Law (1961), pp. 189–195.
- 35.
On the notion of a technical norm, cf. von Wright, The Varieties of Goodness, pp. 160–162.
- 36.
Hart refers to Fuller’s catalogue of the eight criteria that make up the internal morality of law with the term “principles of good craftsmanship [for a conscientious legislator]”. Hart, “Lon L. Fuller: The Morality of Law”, p. 347.
- 37.
Fuller, The Morality of Law, p. 184.
- 38.
Fuller, The Morality of Law, p. 39.
- 39.
Fuller, The Morality of Law, pp. 41, 43.
- 40.
Hart, The Concept of Law (1961), p. 188: “… for our concern is with social arrangements for continued existence, not with those of a suicide club.”
- 41.
On the critique of the missing purpose-oriented element in Hart’s theory of law, cf. Finnis, Natural Law and Natural Rights, p. 82.
- 42.
Finnis, Natural Law and Natural Rights, p. 46; cf. MacCormick, “Natural Law Reconsidered”.
- 43.
Juha-Pekka Rentto has written an interesting contribution to Finnis’ natural law philosophy in Rentto, Prudentia Juris: The Art of the Good and the Just.
- 44.
Finnis, Natural Law and Natural Rights, pp. 85–99. – The exact quantity of basic goods or basic values is a conventional issue, though, devoid of any inherent meaning. A similar catalogue suggested by John Rawls entails four elements, viz. liberty, opportunity, wealth, self-respect. Finnis, Natural Law and Natural Rights, pp. 82–83. – Finnis also refers to Thomas E. Davitt’s essay “The Basic Values in Law: A Study of the Ethicolegal Implications of Psychology and Anthropology” (1968) where the author presents different theories of the basic goods or basic values that loom large in the literature on anthropology, psychology, and philosophy. The range of theories begins from models consisting of only one or two basic values, ending up in a model with no less than 12 basic instincts and 14 basic values. Finnis, Natural Law and Natural Rights, p. 97.
- 45.
Finnis, Natural Law and Natural Rights, pp. 73–75. Cf. Wittgenstein, Űber Gewissheit – On Certainty, § 115 (pp. 18/18e): “If you tried to doubt everything you would not get as far as doubting anything. The game of doubting itself presupposes certainty.”
- 46.
Games may be one-person games, such as solitaire, or social games for two or more players, such as chess, football, or quidditch in J. K. Rowling’s Harry Potter books.
- 47.
Finnis, Natural Law and Natural Rights, pp. 88–89, 102.
- 48.
Finnis, Natural Law and Natural Rights, pp. 100–133.
- 49.
Finnis, Natural Law and Natural Rights, pp. 64–65. Cf.: “Here each one of us, however extensive his knowledge of the interests of other people and other cultures, is alone with his own intellectual grasp of the indemonstrable (because self-evident) first principles of his own practical reasoning.” Finnis, Natural Law and Natural Rights, p. 85. (Italics added.) – Cf. Wróblewski, The Judicial Application of Law, p. 306: “Rationality is a basic value which is not further justifiable in the legal discourse, and respect for rationality is treated as the strength and weakness of the judicial application of law”; MacCormick, Legal Reasoning and Legal Theory, p. 268: “My belief that I ought to strive to be rational is not a belief which I can justify by reasoning.” Cf. also Wittgenstein, On Certainty; von Wright, “Wittgenstein varmuudesta”; Siltala, A Theory of Precedent, pp. 215–216.
- 50.
Finnis, Natural Law and Natural Rights, pp. 92, 93. (Italics added.) – Cf.: “The basic values, and the practical principles expressing them, are the only guides we have. Each is objectively basic, primary, incommensurable with the others in point of objective importance. (…) Reason requires that every basic value be at least respected in each and every action.” Finnis, Natural Law and Natural Rights, pp. 119, 120.
- 51.
Finnis, Natural Law and Natural Rights, p. 71. (Italics added.)
- 52.
“These surveys [in anthropological literature] entitle us, indeed, to make some rather confident assertions. All human societies show a concern for the value of human life; in all, self-preservation is generally accepted as a proper motive for action, and in none is the killing of other human beings permitted without some fairly definite justification. All human societies regard the procreation of new human life as in itself a good thing unless there are special circumstances. No human society fails to restrict sexual activity; (…) All human societies display a concern for truth, through education of the young in matters not only practical (e.g. avoidance of dangers) but also theoretical or speculative (i.e. religion). (…) all societies display a favour for the values of co-operation, of common over individual good, of obligation between individuals, and of justice within groups. All know friendship. All have some conception of meum and tuum, title or property, and of reciprocity. All value play, serious and formalized, or relaxed and recreational. All treat the bodies of dead members of the group in some traditional and ritual fashion different from their procedures for rubbish disposal. All display a concern for powers or principles which are to be respected as suprahuman; in one form or another, religion is universal.” Finnis, Natural Law and Natural Rights, pp. 83–84.
- 53.
Hart, The Concept of Law (1961), p. 194.
- 54.
Finnis, Natural Law and Natural Rights, pp. 71–73, where the author defends his position vis-à-vis knowledge as a basic good.
- 55.
Finnis, Natural Law and Natural Rights, pp. 92, 93. – Finnis’ line of argumentation of the shifting priority order of the basic values is presented in a concise manner on pages 92–95 of his Natural Law and Natural Rights, under the heading “All Equally Fundamental”. – Cf.: “Each [basic value] is fundamental. None is more fundamental than any of the others, for each can reasonably be focused upon, and each, when focused upon, claims a priority of value. Hence there is no objective priority of value amongst them.” Finnis, Natural Law and Natural Rights, p. 93.
- 56.
Finnis, Natural Law and Natural Rights, pp. 119, 120
- 57.
Finnis, Natural Law and Natural Rights, pp. 92–93. – Cf. what Finnis writes on play as a basic value: “But one can shift one’s focus, in this way, one-by-one right round the circle of basic values that constitute the horizon of our opportunities. We can focus on play, and reflect that we spend most of our time working simply in order to afford leisure; play is performances enjoyed for their own sake as performances and thus can seem to be the point of everything; knowledge and religion and friendship can seem pointless unless they issue in the playful mastery of wisdom, or participation in the play of the divine puppetmaster (as Plato said), or in the playful intercourse of mind or body that friends can most enjoy.” Finnis, Natural Law and Natural Rights, p. 93.
- 58.
Finnis, Natural Law and Natural Rights, p. 198: “Almost everything in this book is about human rights (‘human rights’ being a contemporary idiom for ‘natural rights’: I use the terms synonymously).”
- 59.
If the right to life is conceived as having primacy vis-à-vis the other basic values, it needs to be defined as a rule and not as a principle.
- 60.
I refer to the notion of systemic formality and other tenets of legal formality à la Robert S. Summers, as touched upon above in the context of legal formalism.
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Siltala, R. (2011). Natural Law Philosophy: Law as Subordinate to Social Justice and Political Morality in Society. In: Law, Truth, and Reason. Law and Philosophy Library, vol 97. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1872-2_10
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