Abstract
The metaphysical problem of evil concerns how to reconcile God's existence with the existence of evil. This paper explores a similar question: the so-called jurisprudential problem of evil or what might be called “Theist’s Legal Paradox.” The paradox implies the problem of reconciling the (legal) theist doctrine that God’s natural law is the ultimate basis of a law’s validity with the apparent existence of evil laws throughout history (e.g., the anti-Jewish laws of Nazi Germany). The paradox is a cause of concern in a Roman Catholic country like the Philippines, where Church doctrine has profoundly influenced natural law jurisprudence for decades. This chapter examines two theistic solutions to the paradox: (i) the Augustine-Radbruch-Alexy formula and (ii) the Aquinas-Finnis central case solution. The former claims that laws that breach an intolerable degree of injustice lose their status as law; the latter that unjust law is a perverted, corrupted, and peripheral law. As argued later, these solutions fail to resolve the paradox; hence a theist must reject the classical view in favor of some other perspective, e.g., contemporary natural law theory or legal positivism.
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Notes
- 1.
CNLT is derived from the more general Natural Law doctrine known as The Overlap Thesis: that there is a conceptual connection between law and morality. It is traditionally contrasted with the legal positivist’s Separation Thesis that no conceptual connection exists between law and morality. For further discussions, see (Duke & George, 2017).
- 2.
As its name suggests, CNLT primarily expresses the view of classical natural lawyers, so contemporary natural lawyers do not need to endorse it. Indeed, some of the most celebrated contemporary natural lawyers, such as Lon Fuller, Ronald Dworkin, Michael Moore, and to an extent, John Finnis, do not accept CNLT. Despite its decline in popularity, however, it continues to shape religious doctrine in Catholic countries, such as the Philippines, thus making it worthwhile to examine its merits.
- 3.
Alexy describes Solution 3 as “inclusive non-positivism,” the view that the moral defects of law sometimes nullify its legal validity. He classifies Finnis and himself as inclusive non-positivists. He describes Solution 4 as “super-inclusive non-positivism,” which claims that the moral defects of a law never affect its legal validity, a view that he associates with legal positivism. Finally, he describes “exclusive non-positivism” as the view that the moral defects of law always void legal validity (Alexy, 2013, p. 104). No serious natural lawyer holds this latter view, so it shall not be considered here. In response to Alexy, Finnis claims that his body of work defends all three non-positivist positions, “each in its proper place as a truth about unjust law.” This paper, however, shall only focus on Finnis’s more dominant view, which seems to be that of the inclusive non-positivist (Finnis, 2014, p. 85).
- 4.
In particular, the post-Vatican II encyclical, Humanae Vitae, depends on classical views of Natural Law remains one of the most significant sources of Catechism in the Philippines. Its contents continue to be cited and taught at school.
- 5.
Classical Natural Rights Jurisprudence is sometimes referred to as Modern Natural Law. Some of its proponents include John Locke, Francisco Suárez, Samuel von Pufendorf, and Hugo Grotius (Darwall, 2009).
- 6.
Kelsen’s theory found in Pure Theory of Law (1967 [1960]) is “pure” because it eliminates all elements alien to law, such as those of morality or the social sciences.
- 7.
Not everyone agrees with this reading of Radbruch’s Formula. Brian Bix (2013, p. 73) prefers the narrower reading of Radbruch, offering a prescription for judicial decision-making without making conceptual claims.
- 8.
The other co-founder is widely acknowledged to be Germain Grisez (1965), whose influential article made a profound impact on Finnis’ jurisprudence.
- 9.
Legal Positivism accepts four central theses: (1) the Social Thesis that law is a matter of social fact, (2) the Separation Thesis that there is no conceptual connection between law and morality, (3) the Social Efficacy Thesis that the validity of law presupposes that it is socially efficacious, and (4) the Semantic Thesis that normative legal terms such as “right,” “duty,” or “authority” have different meanings from their moral counterparts (Spaak & Mindus, 2021, p. 7).
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Acknowledgements
An earlier version of this essay was awarded as a runner-up in the Catholic Bishops Conference of the Philippines (CBCP) Episcopal Commission on Seminaries Philosophy of Religion Essay Prize competition in July 2021, judged by a panel of professional philosophers from the Philosophical Association of the Philippines (PAP) and the Union of Societies and Associations of Philosophy in the Philippines (USAPP). The competition was hosted at an international conference on “Emerging Religions in Southeast Asia.” I would like to thank the participants of the Philosophies of Appropriated Religions Conference and Writeshop hosted in Manila on May 27, 2022, as well as those of the Global Philosophy of Religion Project: Culminating Conference hosted in Bangkok from September 4–6, 2022 for their valuable comments on earlier versions of this paper. Both of these conferences were organized by Prof. Soraj Hongladarom, PhD of Chulalongkorn University, Prof. Jeremiah Joven Joaquin, PhD, Prof. Hazel Biana, PhD, Prof. Fernando Santiago, Jr., PhD, and their colleagues at De La Salle University. Finally, I dedicate this article to my late uncle, Prof. Emmanuel “Toto” Q. Fernando, DPhil (Oxon). Some of Tito Toto’s published works are cited in this paper as they have deeply inspired my views on the subject matter and, more importantly, my views of philosophy in general.
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Fernando, E.B.R. (2023). The Theist’s Legal Paradox: The Problem of Evil, Classical Natural Law Jurisprudence, and the Legal Validity of Immoral Law. In: Hongladarom, S., Joaquin, J.J., Hoffman, F.J. (eds) Philosophies of Appropriated Religions. Springer, Singapore. https://doi.org/10.1007/978-981-99-5191-8_4
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