Classical Natural Law
theories and Classical
Positivism
Dr Philip A. Quadrio
This Lecture
Identify core features of Classical Natural Law theory
Identify core features of Classical Positivism
Understand the criticisms Classical Positivism makes of
Classical Natural Law theory.
Understand the limitations of those same criticisms.
Understand some of the criticisms made of Classical
Positivism by 20th Century positivism.
Natural Law
Natural law theory holds that there is an objective standard
by which any law can be held to so as to determine its status
as law – the law is subject to an extra-legal legitimating
standard. Insofar as a law is connected to such a standard it
is not only binding in the positive sense but binding per se
Focus:
1.
What are the limitations of law making
2.
What is the proper function of the law
3.
What is the nature of our obligation to obey the law
Realists + Constructivists
A realist natural law theorist holds that there is a moral
standard to which the laws are subordinate which is
independent of human beings but knowable to them (direct
cognition of moral truth).
On the other hand a constructivist natural law theorist
holds that moral truths are discovered by rational enquiry,
they are constructed by rational reflection on human life
and its needs, both physical and social (indirect or mediated
cognition of moral truth).
Either way we are discovering something objective
Watch out for hybrid theories!!!
Plato 1: The Realist
Plato argued that human law ought to be generated
with reference to Ideal forms of justice and goodness,
by ideal we mean the pure justice and pure goodness,
so justice or goodness in itself, unmixed with any other
quality
Ideal justice and goodness could be humanly
comprehended or cognised and thus used as a
standard. Rational insight into ideas like goodness and
justice is the source for evaluating any social regulation,
the good society is the one that conforms to what
reason has discovered about justice and goodness
Plato 2: Hybrid
A legal code has a pedagogic purpose, laws are there to help
create good citizens, to educate them in virtue, to show the
citizens where virtue lies
Good laws are rational laws and rational laws have the
power to produce virtuous citizens
Rationality is the bench mark, laws have a purpose, to
produce rational and therefore virtuous citizens
law is limited by this ‘perfectionist’ notion, the bounds of
what can be law are the bounds of what can produce
‘rational citizens’
Plato: disobedience and the
limits of the law
No state can demand of a citizen that which is
unreasonable, because demanding that a citizen act
against reason does not teach what reason demands, it
contradicts what reason demands, in contradicting
reason it fails to teach virtue and thus it fails to achieve
the proper function of law, to create virtuous (rational)
citizens
One has the right to resist the state based on averring
wrong (irrational) actions. This does not, however,
protect one from a violent reaction from the state.
Aristotle: Constructivist
Teleological Framework – telos = goal, end or purpose.
The purpose of the state is to assist its citizens to realise
their potential, or to assist in the flourishing of the citizens
The flourishing life = rational life. To flourish is to reach a
condition where one is capable of seeing what is rationally
required in any circumstance.
Good law facilitates flourishing, it constrains vice, produces
virtue and allows reason to flourish. Thus guiding us to
rational and virtuous ends
Legislators need the wisdom to discover these
Aristotle: Disobedience and
limits to law
Universal justice is sensitive to the ways in which
individual laws can, from time to time, counteract
human flourishing.
It is impossible that one would be able to generate a
law that could cover each and every circumstance
what reason demands is a stepping outside of the rule
in order to consider the details of the case – such a
consideration is limited by the goal of arriving at a
decision that will in fact facilitate flourishing
Cicero: Realist
Lex Vulgus, the particular legal provisions of a state - legitimate
only insofar as they advanced the ‘proper purposes’ of the state
where ‘proper purpose’ is determined by what reason demands.
Lex caelestis, the celestial or divine law. We cannot know it in its
entirety but through reason we can know aspects of it.
Lex Naturae, that aspect of the divine law which can be known to
human reason – divine laws, once comprehended by humans
become natures laws (divine laws accessible to human insight).
Positive laws not in line with the proper purposes of the state (not
in line with reason) cannot be in line with natural law and so are
deficient law.
Augustine: Hybrid?
Humans are torn between vice /virtue (good/evil)
Lex Aeterna, eternal law decreed by God’s will teaches virtue
and eliminates vice
Lex Temporalis was to discourage vice through coercive
force, insofar as some specific legal provision discourages
vice that law is good.
What about laws that do not discourage vice? ‘Lex iniusta
non est lex’ - an unjust law is no law. He means that
anything one finds in a state’s laws that is unjust has not
been derived from the eternal law, but it is still enforceable.
Aquinas: Constructivist
Law sets before the citizen an account of the good,
particularly it shows them something about being a
good member of the community.
Origin and purpose of the law: the law is rational or
generated by reason and it is there for the good of the
community, it functions for the common good. But it
is also there to show members of the community what
is good, so it promotes virtue
Aquinas: Constructivist
Law (and morality) are vehicles through which human
beings are guided towards their proper purpose or
proper end, that purpose or end is itself determined by
a kind of cosmic rationality.
There are two ways that we can indirectly discern the
content of cosmic rationality, through reference to
revelation and through the fruit of human reason.
Aquinas: Limits of the law
When human laws depart from or fail to understand
these two sources the possibility of bad laws arise.
We have no general obligation to obey a bad law but
we have to take great care with any particular act of
disobedience, for disobedience can create instability
which is bad.
For the sake of a stable peaceable society, some degree
of injustice ought to be tolerated, rebellion and
disobedience must be tempered by real needs.
John Locke: Realist (Hybrid?)
People had a natural right to certain properties, they
had property rights over their bodies, and the labour of
their bodies and with that they also had a natural right
over anything that they produced via labour.
It is easier for us to protect our natural right to
property when we live in a society with laws and a
justice system to enforce them.
the primary purpose of government and legislation is
to protect our natural right to property
Locke and Limits of the Law
Law can be assessed on the basis of how far it goes
towards the protection of our natural right to property
There is a limit to governmental and legislative
authority: if it is established to protect property rights
than any exercise power destructive of our property
rights (and remember that includes the property we
have in our own bodies) is unjust.
The people thus have the right not only to reject that
exercise of power but also to overthrow the government
and establish a new legislative system.
The Problem of Objectivity
Natural Law theory rests on the idea that there is a
perspective external to the law that can both provide a
foundation for law but also a criterion of evaluation.
Problem! One must be sure about what the external
perspective demands.
Having this certainty implies we can distinguish those
moral principles on which we found and evaluate law
from opinion, subjective whim, or prejudice.
That is not as easy as it might seem.
3 Orientative Questions
What is the nature of legal reasoning? legal reason traces to
a conception of the proper function or purpose of the law defined either by moral reason or an eternal moral standard
What is the relationship between law and morality? Law is
subordinate to morality in the sense that law is subject to a
moral evaluation.
How does law exist? Actual laws might not have emerged
from reason and might be a purely human product. Ideally
law ought to be founded on a morality/a rational
assessment of human needs .
Positivism: descriptive not
normative
Positivism is focused on a descriptive theory of law
While Naturalists ask what ought the law be? Positivists
ask, what essential features do laws display?
The questions are different, but this does not mean
that the two approaches to the law see themselves as
compatible – positivism sees itself as a challenge to
naturalism, as rejecting it. Naturalism does not see
itself as rejecting any other theory.
Descriptive approach versus
normative considerations
Positivists do not reject normative considerations outright –
rather they deny the institutional legitimacy of law is
derived from normative considerations
Moral considerations are superfluous in identifying what is
law.
If you want a theory that gives you an account of law such as
to enable you to identify what is and what is not a law, you
don’t have to include moral criteria.
Moral considerations might be interesting further questions
they are not part of the identification of law
Jeremy Bentham (1748-1832)
Two aspects of Bentham’s rejection of Natural Law
theory
Polemical point - His work is largely bound up with a
criticism of the work of Sir William Blackstone, author
of Commentaries on the Laws of England
But he has Philosophical point to make against Natural
Law theory, for him it transgressed the Humean
distinction between ‘ought’ and ‘is’.
Problems with Bentham’s
‘scientific’ approach
1.
It seems to presume that there is only one legitimate way of
generating well-founded knowledge, that which proceeds on
a scientific and factual basis
2.
We could also attack the ‘is’ ‘ought’ distinction and there
are a number of ways we could do that.
3.
The Natural Law theorists does not necessarily run afoul of
the ‘is’/’ought’ distinction. Most accept that legal practice
might not live up to its ideal form, nor do they claim that
one cannot in fact be punished for breaching a bad law.
What they say is that given that the law ought not be the
person being punished ought not be punished.
Bentham: expositorial and
censorial approaches
Bentham wants a strict separation between two aspects of
jurisprudence – exposition and censorship
The expositorial practice of jurisprudence is an attempt to
explain to us what the law in fact is.
The censorial practice of jurisprudence is a critical practice
that out-lines what the law ought to be
If I will only count as law those things that I morally
endorse I may be tempted to suggest that many laws are not
in fact law because it lacks moral features, but for Bentham
law is law and I can just as well be hanged for disobeying a
bad law as I can for disobeying a good one
Expositorial and Censorial:
Why?
If I will only count as law those things that I morally
endorse I may be tempted to suggest that many laws are not
in fact law because it lacks moral features, but for Bentham
law is law and I can just as well be hanged for disobeying a
bad law as I can for disobeying a good one
Far better to separate the process of identifying what is law
from the process of criticising law, that way I can both
acknowledge law as law on one hand and then make
criticism of it on the other and all without running the risk
of mistaking a bad law for a nullity
But – censorial practice does not have legal weight.
Command Theory of The Law
Command – is an expression of the sovereign will, it
expresses what the sovereign wills to be the case, and
because it is a command we note that it is an imperative,
that is, the commanded do not have a choice.
Sovereignty – the supreme authority within a polity or state
be it embodied in a single person such as a monarch or a
group of persons such as parliament
Sanction – the consequences that are attached to the
command so that those who are commanded have a
motivation to comply with the command, sanction is a way
of motivating compliance
Command
John Austin unpacked the command element of the
theory as follows
1. The wish of a rational being that some other being
shall do or forbear some activity
2. An evil or a harm will proceed from the former being
to the latter being in case that the latter disobeys that
wish
3. The wish is expressed in words or other signs.
Sovereignty
The supreme political authority within a community
“any person or assemblage of persons to whose will a whole
political community are (no matter on what account)
supposed to be in a disposition to pay obedience and that in
preference to the will of any other person”.
Austin augments this by suggesting that not only is the
sovereign the preferred political power but that the sovereign
ought not be in the habit of obeying any other power. That
is Austin stresses the point that for a sovereign to be
sovereign it ought not be in the habit of obeying anyone else
Sanction
This is a matter of motivating compliance
Motivational hedonism - only pleasure and pain
1.
It is probabilistic: there is no certainty that the sanction will
be efficacious, only a probability that it will be so
2.
The sanction cannot be disassociated from the law
3.
Sanctions could be both positive or negative: coercive
sanctions threaten an unpleasant consequence for
disobedience, whereas alluring sanctions promise a
beneficial consequence
Command Theory =
Descriptive/Expositorial
It is clear that the command theory is descriptive, it
helps us identify what IS law.
In order to identify some rule as a law all we need to
do is trace it back to the expressed will (command) of a
sovereign (a supreme political authority), which is
backed up by sanction (a motivation to comply).
It does not entail anything about the morality of what
we find in the law, it merely shows us what features we
are to look for in a social practice in order to
determine whether that practice is a law – its
expositorial
Orientative Questions
What is the nature of legal reasoning? Determining
whether some act or forbearance conforms to or fails to
conform to some sovereign command.
What is the relationship between law and morality?
Law, in its practice, is separate to morality – laws might
be moral, that depends on the law in question, but law
is not rendered legitimate by its relation to morality.
How does law exist? Law exists primarily through
sovereign authority
HLA Hart: Positivist critic of
Positivism
Argument by analogy which is meant to show that the
command theory fails to provide a proper descriptive
account of the law
The Gunman situation writ large: the sovereign, like
the gunman, is using coercion to motivate compliance
to his will
But, legal obligation “ain’t like that” so – the command
theory fails to give us a proper insight into the
phenomenon or experience of legal obligation and so
it fails as an analysis of legal obligation
HLA Hart – Positivist critic of
Positivism
1. Spurious uniformity: on the classical positivist account
law is subject to a spurious uniformity.
It is not the case that all laws are commands ordering
people to do or forbear certain activities under the
threat of sanction – perhaps criminal law, BUT…
Some laws are power conferring, these are not
command
See readings for other criticism from Hart.
Hart on Obligation: External
and Internal Perspectives
Austin views legal obligation as being brought about by
sanction BUT…This does not make any reference to
the attitudes, beliefs, desires of those obeying the law.
It seems as if we obey out of threat. People are obliged
because there is a sanction. This is an external account,
it does not consider the internal perspective.
To explain obligation we have to consider it from the
perspective of those internal to legal institutions – we
need to take an internal view of legal obligation - we
need to attend to the perspective of those who
participate in the relevant institutions .
The Internal Perspective
Laws are a species of social rule and are thus normative
A social rule is something that is perceived in a certain
way - as normative, as having a claim on you, it is
treated by the members of a group as a standard that
that ought to be followed by the group as a whole.
The rule not only justifies the practice but also
legitimates criticism those who fail to do things in
accordance with it. We all understand the rule and
find it binding, your failure to follow it is thus
blameworthy
The Internal Perspective
The ‘critical reflective attitude’ - we can take an internal
point of view on a rule, the view of those who use it to guide
their lives, we can reflect on various actions and behaviours
from that perspective and criticise failure to conform to it,
indeed we can also criticise ourselves for our failure.
Those who take the internal point of view towards a rule
accept it as a standard. They might do so without morally
endorsing the rule
Social rules exist when members of a group behave in a
certain way as a rule and expect others to behave similarly.