Brandace Duncanson Jurisprudence Exam Review Natural Law Theory Natural law is defined according to whether the law satisfies certain moral conditions or criteria. Natural law theorists believe that if a law is not just then it is not law. Natural law is concerned with law in a conceptual sense, not individual. The central claim of N/L theory is the idea that there are moral principles of universal applicability, and that there are principles of political morality in terms of which human communities ought to be constituted and governed. Classical N/L theorist Thomas Aquinas tries to establish the truth of the N/L claim that law is created by human beings for the governance of the community. Aquinas proposes that law is a rule or measure of human action in virtue of which one is led to perform certain actions and restrained from the performance of others. The term law derives etymologically from binding, because one is bound to a certain course of action. According to Aquinas, the rule and measure of human action is reason. Reason links law and morals, and it is reason that directs human action to its appropriate end. It postulates the end to which you want to go. Law is a form of human action, thus it is reason that directs law to its appropriate end. The end is to be justified as being right and good. Reason cannot justify evil, because to justify is to say why it is good. Law is addressed to the governance of human lives. Law cannot justify evil because reason directs law. To justify why evil is right and good demolishes the theory. Aquinas thus concludes that the only appropriate end to which reason directs law is the good of the entire community. It applies an end which is right and moral. As a general premise, Aquinas’ reason is unassailable; the inevitable end to which is good. Law is directed by reason only to a just end. This is an ideal conception of the rule of law. Aquinas showed an ideal conception of a legal order, i.e. one which all societies should aspire to obtain. Thus Nazi Germany, apartheid Africa and Cambodia are farthest from Aquinas’ theory. However, constitutional democracy, such as those in the Commonwealth Caribbean, come closest to his theory. Law is an ordinance of reason for the common good promulgated by him who has the care of the community. The question then is who has the authority to promulgate law? It could be the entire community or the individual who represents the community– the person with the responsibility to make law, i.e. legislate. Aquinas establishes reason as the regulative principle for making law. The legitimate moral authority is derived from the justness of law. This answers the question as to the obligation to obey. If law is unjust N/L advocates that it does not bind in conscience. Aquinas attributes the source of moral principles to a Divine Being, i.e. God. Critics such as Margaret McDonald, dispute the idea that we learn moral truths from nature, since nature does not know any moral truths. Finnis also criticizes Aquinas on this point. He disputes the notion that it is a divine being from which we obtain moral principles. Finnis speaks of self-evident principles of practical reasonableness, i.e. we as humans postulate our appropriate ends. By his explanation Finnis has been criticized as having removed the foundation established by Aquinas, that the principles were learnt from a Divine being. Finnis feels we are capable of identifying our own moral principles. According to Finnis, we govern our communities through these self-evident principles. Through practical reasonableness, we are able to identify forms of human goods which are essential to human flourishing and well-being. The value of Finnis’ theory is that by removing the relationship of the Divine being to that of self-evident practical reasonableness, even an atheist can believe or construe moral principles in a N/L context. Finnis recognizes more than one God. Through P/R we are able to identify the basic forms of human flourishing, which play a constitutive role in the ordering and governance of our universe. These are self-evident, demonstrable principles, essential to our well-being. Finnis’ forms of human goods, which have intrinsic value and moral significance include: life, play, religion, knowledge, and aesthetic experience. We identify these moral rights before we talk about political institutions. They are independent of political institutions. They are indispensable to our well-being and essential to our human flourishing. For example, life is of intrinsic value to all of us. We have a form of life that sustains our self-worth. Religion is also of intrinsic value to us as human beings. By identifying human goods, we make moral claims to them. By recognizing these intrinsic goods, we as human beings will incorporate these moral rights in our constitution thereby making them fundamental/constitutional rights to be enforced for the benefit of the community. These rights preceded the constitution, but were enforced as legal rights in the constitution. Only with the condition for practice of judicial review will these rights be enforced. The State is the principle institution that will enforce such rights. For example, moral rights are now called human rights, e.g. right to life, privacy, etc. The making of a certain type of constitution is a requirement of P/R. West Indian constitutions are similar to Natural Law as they embody a fundamental rights provision, separation of powers – a requirement of P/R, and independence of the judiciary, and criminal law and tort law, which play important roles in West Indian legal systems are also endorsed by the N/L theory.
