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Unit 2: Schools of Jurisprudence Natural law school:

The unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive law, which consists of the written rules and regulations enacted by government. The term natural lawis derived from the Roman term jus naturale. Adherents to natural law philosophy are known as naturalists. Naturalists believe that natural law principles are an inherent part of nature and exist regardless of whether government recognizes or enforces them. Naturalists further believe that governments must incorporate natural law principles into their legal systems before justice can be achieved. There are three schools of natural law theory: divine natural law, secular natural law, and historical natural law. Divine natural law represents the system of principles believed to have been revealed or inspired by God or some other supreme and supernatural being. These divine principles are typically reflected by authoritative religious writings such as Scripture. Secular natural law represents the system of principles derived from the physical, biological, and behavioral laws of nature as perceived by the human intellect and elaborated through reason. Historical natural law represents the system of principles that has evolved over time through the slow accretion of custom, tradition, and experience. Each school of natural law influenced the Founding Fathers during the nascent years of U.S. law in the eighteenth century and continue to influence the decision-making process of state and federal courts today.

Divine Natural Law


Proponents of divine natural law contend that law must be made to conform to the commands they believe were laid down or inspired by God, or some other deity, who governs according to principles of compassion, truth, and justice. These naturalists assert that the legitimacy of any enacted human law must be measured by its consonance with divine principles of right and wrong. Such principles can be found in various Scriptures, church doctrine, papal decrees, and the decisions of ecclesiastical courts and councils. Human laws that are inconsistent with divine principles of morality, naturalists maintain, are invalid and should neither be enforced nor obeyed. St. Thomas Aquinas, a theologian and philosopher from the thirteenth century, was a leading exponent of divine natural law. According to Judeo-Christian belief and the Old Testament, the Ten Commandments, were delivered to Moses by God on Mount Sinai. These ten laws represent one example of divine natural law. The Bible and Torah are thought by many to be other sources of divine natural law because their authors are said to have been inspired by a divine spirit. Some Christians point to the Canon Law of the Catholic Church, which was applied by the ecclesiastical courts of Europe during the Middle Ages, as another source of divine natural law. Before the Protestant Reformation of the sixteenth century, Europe was divided into two competing jurisdictionssecular and religious. The emperors, kings, and queens of Europe governed the secular jurisdiction, and the pope presided over the religious jurisdiction. The idea that monarchs ruled by "divine right" allowed the secular jurisdiction to acquire some of the authority of religious jurisdiction. Moreover, the notion that a "higher law" transcends the rules enacted by human institutions and that government is bound by this law, also known as the Rule of Law, fermented during the struggle between the secular and religious powers in Europe before the American Revolution. For example,Henry de Bracton, an English judge and scholar from the thirteenth century, wrote that a court's allegiance to the law and to God is above its allegiance to any ruler or lawmaker. The influence of divine natural law pervaded the colonial period of U.S. law. In 1690 English philosopherJohn Locke wrote that all people are born with the inherent rights to life, liberty, and estate.

These rights are not unlimited, Locke said, and may only be appropriated according to the fair share earned by the labor of each person. Gluttony and waste of individual liberty are not permitted, Locke argued, because "[n]othing is made by God for man to spoil or destroy." In the Declaration of Independence, Thomas Jefferson, borrowing from Locke, wrote that "all men are created equal and are endowed by their creator with certain inalienable rights [including] life, liberty and the pursuit of happiness." Jefferson identified the freedom of thought as one of the inalienable rights when he said, "Almighty God has created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint." In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253 (1888), the Supreme Court recognized the importance of the divine influence in early U.S. law, stating that the "right to pursue happiness is placed by the Declaration of Independence among the inalienable rights of man, not by the grace of emperors or kings, or by the force of legislative or constitutional enactments, but by the Creator." The U.S. Constitution altered the relationship between law and religion. Article VI establishes the Constitution as the supreme law of the land. The First Amendment prohibits the government from establishing a religion, which means that a law may not advance one religion at the expense of another or prefer a general belief in religion to irreligion, atheism, or agnosticism. Although the Supremacy and Establishment Clauses seemingly preclude the judiciary from grounding a decision on Scripture or religious doctrine, state and federal courts have occasionally referred to various sources of divine natural law. For example, in Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987), the Supreme Court said that "the Founding Fathers believed devotedly that there was a God and that the inalienable rights of man were rooted in Him." In McIlvaine v. Coxe's Lessee, 6 U.S. 280, 2 Cranch 280, 2 L. Ed. 279 (1805), the Supreme Court relied on the Bible as "ancient and venerable" proof that expatriation had long been "practiced, approved, and never restrained." Confronted with the question as to whether the conveyance of a particular piece of land was legally enforceable, the Supreme Court stated that it would consider "those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations" ( Johnson v. M'Intosh, 21 U.S. 543, 8 Wheat. 543, 5 L. Ed. 681 [1823]). In DRED SCOTT V. SANDFORD, 60 U.S. 393, 19 How. 393, 15 L. Ed. 691 (1856), the Supreme Court held that slaves were the property of their owners and were not entitled to any constitutional protection. In a dissenting opinion, however, Justice John McLean wrote that a "slave is not mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man." In the later twentieth century (in a judgment overturned in Lawrence v. Texas, 539 U.S., 123 S.Ct. 2472, 156 L.Ed.2d 508 [2003]), the Supreme Court relied on Judeo-Christian standards as evidence that homosexual Sodomy is a practice not worthy of constitutional protection because it has been condemned throughout the history of western civilization (Bowers v. Hard-wick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 [1986] [Burger, J., concurring]). State and federal courts also have considered JudeoChristian standards when evaluating the constitutionality of statutes prohibiting bigamy and Incest. For example, Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), upheld the constitutionality of a Georgia statute prohibiting incest. Despite the sprinkling of cases that have referred to Scripture, religious doctrine, and Judeo-Christian heritage, such sources of divine natural law do not ordinarily form the express basis of judicial decisions. At the same time, it cannot be said that state and federal courts have completely eliminated any reliance on natural law principles. To the contrary, many controversial legal disputes are still decided in accordance with unwritten legal principles that are derived not from religion, but from secular political philosophy.

Secular Natural Law

The school of natural law known as secular natural law replaces the divine laws of God with the physical, biological, and behavioral laws of nature as understood by human reason. This school theorizes about the uniform and fixed rules of nature, particularly human nature, to identify moral and ethical norms. Influenced by the rational empiricism of the seventeenth-and eighteenth-century Enlightenment thinkers who stressed the importance of observation and experiment in arriving at reliable and demonstrable truths, secular natural law elevates the capacity of the human intellect over the spiritual authority of religion. Many secular natural law theorists base their philosophy upon hypotheses about human behavior in the state of nature, a primitive stage in human evolution before the creation of governmental institutions and other complex societal organizations. In the state of nature, John Locke wrote, human beings live according to three principlesliberty, equality, and self-preservation. Because no government exists in the state of nature to offer police protection or regulate the distribution of goods and benefits, each individual has a right to self-preservation that he or she may exercise on equal footing with everyone else. This right includes the liberties to enjoy a peaceful life, accumulate wealth and property, and otherwise satisfy personal needs and desires consistent with the coterminous liberties of others. Anyone who deprives another person of his or her rights in the state of nature, Locke argued, violates the principle of equality. Ultimately, Locke wrote, the state of nature proves unsatisfying. Human liberty is neither equally fulfilled nor protected. Because individuals possess the liberty to delineate the limits of their own personal needs and desires in the state of nature, greed, narcissism, and self-interest eventually rise to the surface, causing irrational and excessive behavior and placing human safety at risk. Thus, Locke concluded, the law of nature leads people to establish a government that is empowered to protect life, liberty, and property. Lockean Jurisprudence has manifested itself in the decisions of the Supreme Court. In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253 (1888), Justice STEPHEN J. FIELD wrote that he had "always supposed that the gift of life was accompanied by the right to seek and produce food, by which life can be preserved and enjoyed, in all ways not encroaching upon the equal rights of others." In another case the Supreme Court said that the "rights of life and personal liberty are the natural rights of man. To secure these rights governments are instituted among men" (U.S. v. Cruikshank, 92 U.S. 542, 2 Otto 542, 23 L. Ed. 588 [1875]). In the spirit of Lockean natural law, the Fifth and Fourteenth Amendments to the Constitution prohibit the government from taking "life, liberty, or property without due process of law." The concept of "due process" has been a continuing source of natural law in constitutional jurisprudence. If Lockean natural law involves theorizing about the scope of human liberty in the state of nature, constitutional natural law involves theorizing about the scope of liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. On their face the Due Process Clauses appear to offer only procedural protection, guaranteeing litigants the right to be informed of any legal action being taken against them and the opportunity to be heard during an impartial hearing where relevant claims and defenses may be asserted. In the 200 years following the writing of the Constitution, however, federal courts interpreted the Due Process Clauses to provide substantive protection against Arbitrary and discriminatory governmental encroachment of fundamental liberties. Similar to the rational empiricism by which Enlightenment thinkers identified Human Rights in the state of nature, federal judges have identified the liberties protected by the Due Process Clauses through a reasoned elaboration of the Fifth and Fourteenth Amendments. The federal judiciary has described the liberty interest protected by the Due Process Clauses as an interest guaranteeing a number of individual freedoms, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination (Gray v. Romeo, 697 F. Supp. 580 [1988]). The wordliberty, the Supreme Court stated, means something more than freedom from physical restraint. "It means freedom to go where one may choose, and to act in such manner as his judgment may dicta te for the promotion of his happiness [while pursuing] such callings and avocations as may be most suitable to

develop his capacities, and give to them their highest enjoyment" ( MUNN V. ILLINOIS, 94 U.S. 113, 4 Otto 113, 24 L. Ed. 77 [1876] [Field, J., dissenting]). The full breadth of constitutional liberty, the Supreme Court has said, is best explained as a rational continuum safeguarding every facet of human freedom from arbitrary impositions and purposeless restraints (Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 [1961]). The government may not intrude upon this liberty unless it can demonstrate a persuasive countervailing interest. However, the more that the U.S. legal system cherishes a particular freedom, the less likely a court is to enforce a law that infringes upon it. In this regard the Supreme Court has identified certain fundamental rights that qualify for heightened judicial protection against laws threatening to restrict them. This list of fundamental rights includes most of the specific freedoms enumerated in the Bill of Rights, as well as the FREEDOM OF ASSOCIATION; the right to vote and participate in the electoral process; the right to marry, procreate, and rear children; and the right to privacy. The right to privacy, which is not expressly enumerated anywhere in the Constitution, guarantees the freedom of adults to use Birth Control (GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]) and the right of women to terminate their pregnancy before the fetus becomes viable (ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). During the 1990s the right to privacy was enlarged to recognize the right of certain terminally ill or mentally incompetent persons to refuse medical treatment. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that a person who is in a persistent vegetative state, marked by the absence of any significant cognitive abilities, may seek to terminate life-sustaining measures, including artificial nutrition and hydration equipment, through a parent, spouse, or other appropriate guardian who demonstrates that the incompetent person previously expressed a clear desire to discontinue medical treatment under such circumstances. The Court of Appeals for the Ninth Circuit later cited Cruzan in support of its decision establishing the right of competent but terminally ill patients to hasten their death by refusing medical treatment when the final stages of life are wrought with pain and indignity ( Compassion in Dying v. Washington, 79 F.3d 790 [9th Cir. 1996]). However, the Court of Appeals for the Second Circuit ruled that physicians possess no due process right to assist terminally ill patients in accelerating their death by prescribing a lethal dose of narcotics (Quill v. Vacco, 80 F.3d 716 [2d Cir. 1996]). Similarly, in a notorious case involving Dr. Jack Kevorkian, the Michigan Supreme Court ruled that patients have no due process right to physicianassisted suicide (People v. Kevorkian, 447 Mich. 436, 527 N. W. 2d 714 [1994]). In the Cruzan decision, the manner in which the Supreme Court recognized a qualified right to die reflects the Enlightenment tradition of secular natural law. Where Locke inferred the inalienable rights of life, liberty, and property from observing human behavior, the Supreme Court said in Cruzan that "a Constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions." For example, in Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905), the Supreme Court protected the constitutional right of a person to decline a smallpox vaccination that was required by state law. In Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990), the Court ruled that the liberty interest guaranteed by the Due Process Clauses prohibits the government from compelling prisoners to take antipsychotic drugs. These cases, as well as others, the Supreme Court reasoned in Cruzan, establish that all U.S. citizens have a general right to refuse unwanted medical treatment, which includes the specific right of certain mentally incompetent and terminally ill persons to hasten their death.

Historical Natural Law

Another school of natural law is known as historical natural law. According to this school, law must be made to conform with the well-established, but unwritten, customs, traditions, and experiences that have evolved over the course of history. Historical natural law has played an integral role in the development of the Anglo-American system of justice. When King James I attempted to assert the absolute power of the British monarchy during the seventeenth century, for example, English jurist Sir Edward Coke argued that the sovereignty of the crown was limited by the ancient liberties of the English people, immemorial custom, and the rights prescribed by Magna Charta in 1215. Magna Charta also laid the cornerstone for many U.S. constitutional liberties. The Supreme Court has traced the origins of grand juries, petit juries, and the writ of Habeas Corpus to Magna Charta. TheEighth Amendment proportionality analysis, which requires that criminal sanctions bear some reasonable relationship to the seriousness of the offense, was foreshadowed by the Magna Charta prohibition of excessive fines (Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 [1983]). The concept of due process was inherited from the requirement in Magna Charta that all legal proceedings comport with the "law of the land" (IN RE WINSHIP, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]). Due Process of Law, the Supreme Court has observed, contains both procedural and historical aspects that tend to converge in criminal cases (ROCHIN V. CALIFORNIA, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 [1952]). Procedurally, due process guarantees criminal defendants a fair trial. Historically, due process guarantees that no defendant may be convicted of a crime unless the government can prove his or her guilt Beyond a Reasonable Doubt. Although the REASONABLE DOUBT STANDARD can be found nowhere in the express language of the Constitution, the Supreme Court has said that the demand for a higher degree of persuasion in criminal cases has been repeatedly expressed since "ancient times" through the common-law tradition and is now "embodied in the Constitution" (In re Winship). The legacy of the trial of John Peter Zenger, 17 Howell's State Trials 675, further illustrates the symbiotic relationship between history and the law. In 1735, Zenger, the publisher of the New York Weekly Journal, was charged with libeling the governor of New York. At trial Zenger admitted that he had published the allegedly harmful article but argued that the article was not libelous because it contained no inaccurate statements. However, in the American colonies, truth was not considered a defense to LIBEL actions. Nonetheless, despite Zenger's admission of harmful publication and lack of a cognizable legal defense, the jury acquitted him. The Zenger acquittal spawned two ideas that have become entrenched in U.S. jurisprudence. First, the acquittal gave birth to the idea that truth is indeed a defense to accusations of libel. This defense received constitutional protection under the First Amendment in NEW YORK TIMES V. SULLIVAN,376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Looking back, the Supreme Court came to describe the Zenger trial as "the earliest and most famous American experience with freedom of the press" (McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426, [1995]). The Zenger trial is also the progenitor of Jury Nullification, which is the power of a jury, as the conscience of the community, to acquit defendants against whom there is over-whelming evidence of guilt in order to challenge a specific law, prevent oppression, or otherwise achieve justice. For example, the Zenger jurors issued an acquittal despite what amounted to a confession by the defendant in open court. Some observers have compared the Zenger trial to the trial of O. J. Simpson, in which the former football star was acquitted of a double Homicide notwithstanding DNA Evidencelinking him to the crimes. According to these observers, JOHNNIE COCHRAN, defense attorney for Simpson, implored the jurors to ignore the evidence against his client and render a verdict that would send a message denouncing POLICE CORRUPTION, perjury, and racism. All three schools of natural law have influenced the development of U.S. law from colonial to modern times. In many ways the creation and ratification of the Constitution replaced Scripture and religion as the ultimate source of law in the United States. The federal Constitution makes the people the fundamental foundation of authority in the U.S. system of government. Many of the Framers characterized the

Constitution as containing "sacred and inviolate" truths. In the same vein, Thomas Paine described the Constitution as a "political Bible." In 1728 many Americans understood that the Common Law encompassed the Law of Nature, the Law of Reason, and the Revealed Law of God, which are equally binding at all times, in all places, and to all persons. The law of history could have been added to this list. Between 1776 and 1784, 11 of the original 13 states made some allowance for the adoption of the English common law. One federal court said that the Constitution "did not create any new rights to life, liberty or due process. These rights had existed for Englishmen since Magna Charta. The Declaration of Independence merely decla red and established these rights for the American colonies" (Screven County v. Brier Creek Hunting & Fishing Club, 202 F. 2d 369 [5th Cir. 1953]). Thus, natural law in the United States may be best understood as the integration of history, secular reason, and divine inspiration.

Natural law, or the law of nature (Latin: lex naturalis), is a system of law that is purportedly determined [1] by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature -- both social and personal -- and deduce binding rules of moral behavior. Natural law is contrasted with the positive law (meaning "man-made law", not "good law"; cf. posit) of a given political community, society, or nation-state, and thus serves as a standard by which to critique said positive [2] law. According to natural law theory, which holds that morality is a function of human nature and reason can discover valid moral principles by looking at the nature of humanity in society, the content of positive law cannot be known without some reference to natural law (or something like it). Used in this way, natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. [citation needed] Some use natural law synonymously with natural justice or natural right (Latin ius naturale) Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by [3] virtue of judicial recognition or articulation. Natural law theories have, however, exercised a profound [4][full citation needed] influence on the development of English common law, and have featured greatly in the philosophies ofThomas Aquinas, Francisco Surez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence and the Constitution of the United States, as well as in the Declaration of the Rights of Man and of the Citizen. Declarationism states that the founding of the United States is based on Natural law.

History
The use of natural law, in its various incarnations, has varied widely through its history. There are a number of different theories of natural law, differing from each other with respect to the role that morality plays in determining the authority of legal norms. This article deals with its usages separately rather than attempt to unify them into a single theory.

Plato
Although Plato does not have an explicit theory of natural law (he almost never uses the phrase natural law except in Gorgias 484 andTimaeus 83e), his concept of nature, according to John Wild, contains [5] some of the elements found in many natural law theories. According to Plato we live in an orderly

universe. At the basis of this orderly universe or nature are the forms, most fundamentally theForm of [7] the Good, which Plato describes as "the brightest region of Being". The Form of the Good is the cause [8] of all things and when it is seen it leads a person to act wisely. In the Symposium, the Good is closely [9] identified with the Beautiful. Also in theSymposium, Plato describes how the experience of the Beautiful [10] by Socrates enables him to resist the temptations of wealth and sex. In the Republic, the ideal [11] community is, ...a city which would be established in accordance with nature.

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Aristotle
Greek philosophy emphasized the distinction between "nature" (physis, ) on the one hand and "law", "custom", or "convention" (nomos, ) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have [1] had the flavor more of a paradox than something that obviously existed. Against theconventionalism that the distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, , Latin ius naturale). Of these, Aristotle is often said to be the father of natural [12] law. Aristotle's association with natural law is due largely to the interpretation given to his works byThomas [13] Aquinas. This was based on Aquinas's conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent [14] translations render them more literally. Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not [15] discuss this and suggests in the Politics that the best regime may not rule by law at all. The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a [16] "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was averse to the case being made, not that there actually was such a [12] law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law [1] provided in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed. [edit]Stoic

natural law

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The rise of natural law as a universal system coincided with the rise of large empires and [17][full citation needed] kingdoms in the Greek world. Whereas the "higher" law Aristotle suggested one could appeal to was emphatically natural, in contradistinction to being the result of divine positivelegislation, the Stoic natural law was indifferent to the divine or natural source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (a divine or eternal law), and the means by which a rational being lived in accordance with this order was the natural law, which spelled out action [1] that accorded with virtue. As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and

Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of [18] human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed [1 conception of law that in part resulted from it."

Cicero
Cicero wrote in his De Legibus that both justice and law derive their origin from what nature has given to man, from what the human mind embraces, from the function of man, and from what serves to unite [20] humanity. For Cicero, natural law obliges us to contribute to the general good of the larger [21] society. The purpose of positive laws is to provide for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' there inheres the idea and principle of choosing [22] what is just and true." Law, for Cicero, "ought to be a reformer of vice and an incentive to [23] virtue." Cicero expressed the view that "the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union [21] and charity which are cemented by mutual benefits." Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero, who held "an extraordinary grip . . . upon the imagination of posterity" as "the medium for the propagation of those [24] ideas which informed the law and institutions of the empire." Cicero's conception of natural law "found its way to later centuries notably through the writings of Saint Isidore of Seville and theDecretum of [25] Gratian." Thomas Aquinas, in his summary of medieval natural law, quoted Cicero's statement that [26] "nature" and "custom" were the sources of a society's laws. The Renaissance Florentine chancellor Leonardo Bruni praised Cicero as the man "who carried [27] philosophy from Greece to Italy, and nourished it with the golden river of his eloquence." The legal culture of Elizabethan England, exemplified by Sir Edward Coke, was "steeped in Ciceronian [28] rhetoric." The Scottish moral philosopher Francis Hutcheson, as a student at Glasgow, "was attracted [29] most by Cicero, for whom he always professed the greatest admiration." More generally in eighteenth[29] century Great Britain, Cicero's name was a household word among educated people. Likewise, "in the admiration of early Americans Cicero took pride of place as orator, political theorist, stylist, and [30] moralist." The British polemicist Thomas Gordon "incorporated Cicero into the radical ideological tradition that travelled from the mother country to the colonies in the course of the eighteenth century and decisively [31] shaped early American political culture." Cicero's description of the immutable, eternal, and universal [32] natural law was quoted by Burlamaqui and later by the American revolutionary legal scholarJames [33] Wilson. Cicero became John Adams's "foremost model of public service, republican virtue, and forensic [34] eloquence." Adams wrote of Cicero that "as all the ages of the world have not produced a greater statesman and philosopher united in the same character, his authority should have great [35] weight." Thomas Jefferson "first encountered Cicero as a schoolboy learning Latin, and continued to read his letters and discourses as long as he lived. He admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked upon Cicero's life, with his love of study and

aristocratic country life, as a model for his own." [37] and philosophy."

[36]

Jefferson described Cicero as "the father of eloquence

Christian natural law


Some early Church Fathers, especially those in the West, sought to incorporate natural law into Christianity. The most notable among these was Augustine of Hippo, who equated natural law with man's prelapsarian state; as such, a life according to nature was no longer possible and men needed instead to seek salvation through the divine law and grace of Jesus Christ. In the Twelfth Century, Gratian equated the natural law with divine law. A century later, St. Thomas Aquinas in his Summa Theologiae I-II qq. 90-106, restored Natural Law to its independent state, asserting [38] natural law as the rational creature's participation in the eternal law. Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law. (See also Biblical law in Christianity.) Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself [39] a 'perversion of law.' At this point, the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine what the law said in the first place. This principle laid the [40] seed for possible societal tension with reference to tyrants. The natural law was inherently teleological and deontological in that although it is aimed at goodness, it is entirely focused on the ethicalness of actions, rather than the consequence. The specific content of the natural law was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction or salvation. The state, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness. In the 16th century, the School of Salamanca (Francisco Surez, Francisco de Vitoria, etc.) further developed a philosophy of natural law. After the Church of England broke from Rome, the English theologian Richard Hooker adapted Thomistic notions of natural law toAnglicanism. There are five important principles: to live, to learn, to reproduce, to worship God, and to live in an ordered [citation needed] society. Those who see biblical support for the doctrine of natural law often point to Paul's Epistle to the Romans: "For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another. (Romans 2:14-15). The intellectual historian A.J. Carlyle has commented on this passage, "There can be little doubt that St Paul's words imply some conception analogous to the 'natural law' in Cicero, a law written in men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or from what St Paul recognized as the revealed law of God. It is in this sense that St Paul's words are taken by the Fathers of the fourth and fifth centuries like St Hilary of Poitiers, St Ambrose, [41] and St Augustine, and there seems no reason to doubt the correctness of their interpretation." [edit]English

jurisprudence

Heinrich A. Rommen remarked upon "the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. [42] 1476)." Bracton's translator notes that Bracton "was a trained jurist with the principles and distinctions

of Roman jurisprudence firmly in mind"; but Bracton adapted such principles to English purposes rather [43] than copying slavishly. In particular, Bracton turned the imperial Roman maxim that "the will of the [44] prince is law" on its head, insisting that the king is under the law. The legal historian Charles F. Mullett has noted Bracton's "ethical definition of law, his recognition of justice, and finally his devotion to natural [45] [46] rights." Bracton considered justice to be the "fountain-head" from which "all rights arise." For his definition of justice, Bracton quoted the twelfth-century Italian jurist Azo: "'Justice is the constant and [47] unfailing will to give to each his right.'" Bracton's work was the second legal treatise studied by the [48] young apprentice lawyer Thomas Jefferson. Sir John Fortescue stressed "the supreme importance of the law of God and of nature" in works that [49] "profoundly influenced the course of legal development in the following centuries." The legal scholar Ellis Sandoz has noted that "the historically ancient and the ontologically higher law--eternal, divine, natural--are woven together to compose a single harmonious texture in Fortescue's account of [50] English law." As the legal historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law (also found inAccursius and Bracton), after all, was 'a sacred [51] sanction commanding what is virtuous [honesta] and forbidding the contrary.'" Fortescue cited Leonardo [52] Bruni for his statement that "virtue alone produces happiness." Christopher St. Germain's Doctor and Student was a classic of English jurisprudence, and it was [54] thoroughly annotated by Thomas Jefferson. St. Germain informs his readers that English lawyers generally don't use the phrase "law of nature," but rather use "reason" as the preferred [55][56] synonym. Norman Doe notes that St. Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge [57] of the community, and promulgated." Sir Edward Coke was the preeminent jurist of his time. Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right [59] [60] reason." Coke defined law as "perfect reason, which commands those things that are proper and [61] necessary and which prohibits contrary things." For Coke, human nature determined the purpose of [62] law; and law was superior to any one man's reason or will. Coke's discussion of natural law appears in his report ofCalvin's Case (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities Aristotle, Cicero, and the Apostle Paul; as [63] well as Bracton, Fortescue, and St. Germain. As early as the thirteenth century, it was held that "the law of nature...is the ground of all laws" and by the Chancellor and Judges that "it is required by the law of nature that every person, before he can be punishd, ought to be present; and if absent by contumacy, he ought to be summon ed and make [65][66] default.". Further, in 1824, we find it held that "proceedings in our Courts are founded upon the law of England, and that law is again founded upon the law of nature and the revealed law of God. If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize [67] it."
[64] [58] [53]

[edit]American

jurisprudence

The U.S. Declaration of Independence states that it has become necessary for the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them". Some early American lawyers and judges perceived natural law as too tenuous, amorphous and [3] evanescent a legal basis for grounding concrete rights and governmental limitations. Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and [68] legal pronouncements. Robert Lowry Clinton argues that the U.S. Constitution rests on a common [69] law foundation and the common law, in turn, rests on a classical natural law foundation. [edit]Islamic

natural law

Ab Rayhn al-Brn, an Islamic scholar and polymath scientist, understood natural law as the survival of the fittest. He argued that theantagonism between human beings can only be overcome through a divine law, which he believed to have been sent through prophets. This is also the position of the Ashari school, [70] the largest school of Sunni theology. Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his commentary on Plato's Republic, writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia or to protect religion, life, property, offspring, and reason. The concept of natural law entered the mainstream of Western culture through his Aristotelian commentaries, influencing the subsequent Averroistmovement and the [71] writings of Thomas Aquinas. The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural law. Abu Mansur al-Maturidistated that the human mind could know of the existence of God and the major forms of 'good' and 'evil' without the help of revelation. Al-Maturidi gives the example of stealing, which is known to be evil by reason alone due to man's working hard for his property. Killing, fornication, and drinking alcohol were all 'evils' the human mind could know of according to al-Maturidi. The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good what is self-evidently good, according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-Ghazali abstracted these "basic goods" from the legal precepts in the Qur'an and Sunnah: they are religion, life, reason, lineage and property. Some add also "honour". Ibn Qayyim Al[citation needed] Jawziyya also posited that human reason could discern between 'great sins' and good deeds.

Hobbes
By the 17th Century, the Medieval teleological view came under intense criticism from some quarters. Thomas Hobbes instead founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, legal positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.

As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes [72] away the means of preserving the same; and to omit that by which he thinks it may best be preserved." According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan ("of the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature"). The first Law of nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war . The second Law of nature is that a man be willing, when others are so too, as far forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself. The third Law is that men perform their covenants made. In this law of nature consisteth the fountain and original of justice... when a covenant is made, then to break it is unjust and the definition of injustice is no other than the not performance of covenant. And whatsoever is not unjust is just. The fourth Law is that a man which receiveth benefit from another of mere grace, endeavour that he which giveth it, have no reasonable cause to repent him of his good will. Breach of this law is called ingratitude. The fifth Law is complaisance: that every man strive to accommodate himself to the rest. The observers of this law may be called sociable; the contrary, stubborn, insociable, froward, intractable. The sixth Law is that upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it. The seventh Law is that in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow. The eighth Law is that no man by deed, word, countenance, or gesture, declare hatred or contempt of another. The breach of which law is commonly called contumely. The ninth Law is that every man acknowledge another for his equal by nature. The breach of this precept is pride. The tenth law is that at the entrance into the conditions of peace, no man require to reserve to himself any right, which he is not content should be reserved to every one of the rest. The breach of this precept is arrogance, and observers of the precept are called modest. The eleventh law is that if a man be trusted to judge between man and man, that he deal equally between them. The twelfth law is that such things as cannot be divided, be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right. The thirteenth law is the entire right, or else...the first possession (in the case of alternating use), of a thing that can neither be divided nor enjoyed in common should be determined by lottery. The fourteenth law is that those things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot. The fifteenth law is that all men that mediate peace be allowed safe conduct. The sixteenth law is that they that are at controversie, submit their Right to the judgement of an Arbitrator.

The seventeenth law is that no man is a fit Arbitrator in his own cause. The eighteenth law is that no man should serve as a judge in a case if greater profit, or honour, or pleasure apparently ariseth [for him] out of the victory of one party, than of the other. The nineteenth law is that in a disagreement of fact, the judge should not give more weight to the testimony of one party than another, and absent other evidence, should give credit to the testimony of other witnesses.

Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal [73] [74] tradition, disregarding the traditional association of virtue with happiness, and likewise re-defining [75] "law" to remove any notion of the promotion of the common good. Hobbes has no use for Aristotle's association of nature with human perfection, inverting Aristotle's use of the word "nature." Hobbes posits a primitive, unconnected state of nature in which men, having a "natural proclivity...to hurt each other" [76] also have "a Right to every thing, even to one anothers body"; and "nothing can be Unjust" in this "warre of every man against every man" in which human life is "solitary, poore, nasty, brutish, and [77] short." Rejecting Cicero's view that men join in society primarily through "a certain social spirit which [78] nature has implanted in man," Hobbes declares that men join in society simply for the purpose of "getting themselves out from that miserable condition of Warre, which is necessarily consequent...to the [79] naturall Passions of men, when there is no visible Power to keep them in awe." As part of his campaign against the classical idea of natural human sociability, Hobbes inverts that fundamental natural legal maxim, the Golden Rule. Hobbes's version is "Do not that to another, which thou wouldst not have done [80] to thy selfe." [edit]Cumberland's

rebuttal of Hobbes

The English cleric Richard Cumberland wrote a lengthy and influential attack on Hobbes's depiction of individual self-interest as the essential feature of human motivation. Historian Knud Haakonssen has noted that in the eighteenth century, Cumberland was commonly placed alongside Hugo Grotius and Samuel Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school [81] of natural law." The eighteenth-century philosophers Shaftesbury and Hutcheson "were obviously [82] inspired in part by Cumberland." Historian Jon Parkin likewise describes Cumberland's work as "one of [83] the most important works of ethical and political theory of the seventeenth century." Parkin observes that much of Cumberland's material "is derived from Roman Stoicism, particularly from the work of Cicero, as "Cumberland deliberately cast his engagement with Hobbes in the mould of Cicero's debate between the Stoics, who believed that nature could provide an objective morality, and Epicureans, who argued that [84] morality was human, conventional and self-interested." In doing so, Cumberland de-emphasized the overlay of Christian dogma (in particular, the doctrine of "original sin" and the corresponding presumption that humans are incapable of "perfecting" themselves without divine intervention) that had accreted to natural law in the Middle Ages. By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his Treatise of the Laws of Naturethat "all the Laws of Nature are reduc'd to that one, of Benevolence [85] toward all Rationals." He later clarifies: "By the name Rationals I beg leave to understand, as well God as Man; and I do it upon the Authority of Cicero." Cumberland argues that the mature development ("perfection") of human nature involves the individual human willing and acting for the [86] common good. For Cumberland, human interdependence precludes Hobbes's natural right of each individual to wage war against all the rest for personal survival. However, Haakonssen warns against reading Cumberland as a proponent of "enlightened self-interest." Rather, the "proper moral love of

humanity" is "a disinterested love of God through love of humanity in ourselves as well as [87] others." Cumberland concludes that actions "principally conducive to our Happiness" are those that [88] promote "the Honour and Glory of God" and also "Charity and Justice towards men." Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own [89] Happiness." He cites "reason" as the authority for his conclusion that happiness consists in "the most extensive Benevolence," but he also mentions as "Essential Ingredients of Happiness" the "Benevolent Affections," meaning "Love and Benevolence towards others," as well as "that Joy, which arises from their [90] Happiness."

Liberal natural law


Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes'revision of natural law, sometimes in an uneasy balance of the two. Hugo Grotius based his philosophy of international law on natural law. In particular, his writings onfreedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is noGod or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology. John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas (filtered through Richard Hooker) or Hobbes' radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist grounds. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the [91] existing state and create a new one. While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights, and it was this language that later liberal thinkers preferred. Thomas Jefferson, arguably echoing Locke, appealed to unalienable rights in theDeclaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain [92] unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Cato's Letters argue that positive laws derive their legitimacy from the law of nature: "The violation therefore of law does not constitute a crime where the law is bad; but the violation of what ought to be [93] law, is a crime even where there is no law." They further argue that "there were crimes before there were laws to punish them; and yet from the beginning they deserved to be punished by the person [94] affected by them, or by the society". The issue they were concerned with was the South Sea bubble, whose perpetrators sought to escape punishment. The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception [2] of natural law in the liberal tradition. Libertarian theorist Murray Rothbard argues that "the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State [95] apparatus." Ludwig von Mises states that he relaid the general sociological and economic foundations of the liberal doctrine upon utilitarianism, rather than natural law, but R.A. Gonce argues that "the reality

of the argument constituting his system overwhelms his denial." David Gordon notes, "When most people speak of natural law, what they have in mind is the contention that morality can be derived from human nature. If human beings are rational animals of such-and-such a sort, then the moral virtues [97] are...(filling in the blanks is the difficult part)." Hans Hermann Hoppe attempts to ground liberal natural law with argumentation ethics. However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse (1601): "The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs."

[96]

Contemporary Christian understanding


The Roman Catholic Church holds the view of natural law set forth by Thomas Aquinas, particularly in his Summa Theologica, and often as filtered through the School of Salamanca. This view is also shared [99] by some Protestant churches, and was delineated by C.S. Lewis in his works Mere [100] Christianity and The Abolition of Man. The Catholic Church understands human beings to consist of body and mind, the physical and the non[101] physical (or soul perhaps), and that the two are inextricably linked. Humans are capable of discerning [102] the difference between good and evil because they have a conscience. There are many manifestations of the good that we can pursue. Some, like procreation, are common to other animals, [103] while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings. Some contemporary Catholic theologians, such as John Wijngaards, dispute the Magisterium's interpretation of Natural Law as applied to specific points of sexual ethics, such as in the areas of contraceptives and [104] homosexual unions. To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be [105] sought, evil avoided." St. Thomas explains that: there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men's hearts. But it is blotted out in the case of a particular action, insofar as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above (77, 2). But as to the other, i.e., the secondary precepts, the natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Rm. i), were not esteemed sinful.
[106] [98]

However, while the primary and immediate precepts cannot be "blotted out", the secondary precepts can be. Therefore, for a deontological ethical theory they are open to a surprisingly large amount of

interpretation and flexibility. Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept, for example: Drunkenness is wrong because it injures one's health, and worse, destroys one's ability to reason, which is fundamental to man as a rational animal (i.e. does not support self preservation). Theft is wrong because it destroys social relations, and man is by nature a social animal (i.e. does not support the subsidiary precept of living in society).

Natural moral law is concerned with both exterior and interior acts, also known as action and motive. Simply doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping an old lady across the road (good exterior act) to impress someone (bad interior act) is wrong. However, good intentions don't always lead to good actions. The motive must coincide with the cardinal or theological virtues. Cardinal virtues are acquired through reason applied to nature; they are: 1. Prudence 2. Justice 3. Temperance 4. Fortitude The theological virtues are: 1. Faith 2. Hope 3. Charity According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a man who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to his lack of self control and desire for pleasure, despite his good intentions, he will find himself swaying from the moral path.

In contemporary jurisprudence
In jurisprudence, natural law can refer to the several doctrines: That just laws are immanent in nature; that is, they can be "discovered" or "found" but not "created" by such things as a bill of rights; That they can emerge by the natural process of resolving conflicts, as embodied by the evolutionary process of the common law; or That the meaning of law is such that its content cannot be determined except by reference to moral principles. These meanings can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws.

Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust law. Legal interpretivism, famously defended in the English speaking world byRonald Dworkin, claims to have a position different from both natural law and positivism.

Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy. The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of England, which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy. According to William Blackstone, however, natural law might be useful in determining the content of the common law and in deciding cases of equity, but was not itself identical with the laws of England. Nonetheless, the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch critics of the common law. Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). The most prominent contemporary natural law jurist, Australian John Finnis, is based in Oxford, but there are also Americans Germain Grisez, Robert P. George, and Canadian Joseph Boyle. All have tried to construct a new version of natural law. The 19th-century anarchist and legal theorist, Lysander Spooner, was also a figure in the expression of modern natural law. "New Natural Law" as it is sometimes called, originated with Grisez. It focuses on "basic human goods," such as human life, knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another. The tensions between natural law and positive law have played, and continue to play a key role in the [107] development of international law.

Natural Law; Law and Ethics in Tension

Natural Law Law and Ethics in Tension


by Sam Cassidy
Natural law lies at the crossroads of disciplines as diverse as law, philosophy, ethics, sociology, and religion. It is hardly surprising then that one might pause in trying to offer a definition for this school of thought because to offer such a definition will likely cause much dispute. Acknowledging this, I would offer the following, more as a focus for this paper than as a definition. As it will be treated in this paper natural law observes certain common principles, chief among those are: 1) that there exists a higher law which is above man-made law, 2) that it is discoverable by human endeavor, 3) that it is universal in application, and 4) that all humans are duty bound to act in accord with that law regardless of the circumstances. An American Interpretation

Thomas Jefferson boldly declared in the Declaration of Independence that all men are created equal and endowed by their creator with certain inalienable rights, among which are life, liberty and pursuit of happiness (Jefferson, 1992). Greatly influenced by thinkers such as Locke, Mill, and Hobbes, Jefferson and his revolutionary brethren felt strongly that the Creator gave humans certain rights which other humans did not have a right to take away whether the would-be appropriator of rights be a king or a democratic majority. For many thinkers these God given rights bestow on humans also the natural right (or duty) to defend those rights against government infringement. Even as those revolutionary brothers moved away from the central values of individual liberties, opting instead to form a strong central government to better insure security and commercial development still they found certain inalienable rights to be off limits to government infringement. The Bill of Rights, the first amendments to the US Constitution attempt to define these God given rights. Personal freedoms such as speech, free exercise of religion, privacy, assembly, the right bear arms, due process, and so forth were removed from the powers granted to the federal government, to be placed forever beyond the reach of the majority to infringe for whatever reason. (Ellis, 2000) Deep Historical Roots Two thousand three hundred years ago Aristotle explained natural law as follows: A rule of justice is natural when it has the same validity everywhere, and does not depend on our accepting it or not. Even before Aristotle, Heraclitus wrote: All human laws are nourished by one, the divine. (IEP, 2004). Heraclitus of Ephuesus, regarded as the first or originator of Natural Law (544-484 B.C.), asserted that nature rules the universe according to reason and that humans must order their affairs in accord with reason if they are to be in accord with the laws of nature. (Sahakian, 1968) Even Eastern thought includes a heavy current of natural law thinking. In The Doctrine of the Mean, the first proposition of Confucius is: What Heaven confers is called nature. Acting in accordance with nature is called Tao. Living in harmony with these principles is to live harmoniously and education should be directed toward that end. (Confucius, 2004) How Do We Discover Natural Law? Most natural law thinkers, at least the more ancient thinkers, have connected these universal truths to a divine consciousness. Thomas Aquinas is well known for the preservation and development of Aristotles work on the subject. Aquinas taught that all human beings are born with a sense of good and evil and that the most important of those natural laws is that good is to be done and evil avoided. There was however some rigorous work to be done by humans to make this awareness explicit through a process of reflection. His examples of good (not an exhaustive list) included life, knowledge, society, procreation, and reasonable conduct. His examples of evil included lying, adultery, sodomy, blasphemy. Taking the life of an innocent human was seen as particularly evil. (Aquinas, 1988)

Like Kant, Aquinas felt that the intention with which an act is committed is very important in judging the moral value of the act. If Martin Luther King chose to be arrested because he felt it would attract more press to his cause and increase his influence then the action is less moral than if he is motivated by allegiance to the principle that the law under which he has been arrested is against nature and should be broken. Hobbes standard for natural law requires less faith in a deity. Hobbes taught that we are able to rationally determine morality or natural law because it is based upon the enforcement of universal principles of right and wrong which benefit society as a whole. (Albert, 1988) So for Hobbes, (similar to Kant) we can take a proposed moral rule (or imperative for Kant) and if we can universalize the rule (make it apply to all people in all situations) and, if so universalized, it benefits society as a whole, then it is natural law. So we do not have to depend upon a Creator to tell us what is good and evil. We can rationally define these natural laws by reference to the standard of being beneficial (or not) to society. This analysis would hardly shock the deity based natural law proponents. Aquinas would examine a proposed rule which benefits society and would say well of course it does because the grand design of God would have it no other way. Hobbes says that the right to self-preservation is a natural right. He also advocates a social contract between all members of the community to protect one anothers rights. With the social contract, Hobbes believed that we can rationally expand our list of natural rights to include all of the rights we would like for ourselves so long as our list is no broader than the list of rights we are willing to insure to all other members of society. This point has been taken by many to state the Golden Rule of do unto others as you would have them do unto you. By others it is interpreted as a formula which can be applied to all natural law which requires that it is natural law only if we are willing to universalize the principle. If we cannot say that this rule of conduct should apply to all humans in all situations then it is not a natural law. Kant also weighs into this argument along with other rationalist thinkers by writing at length about the rational process of identifying these natural laws. His categorical imperative to treat all men as ends and not as means to an end is an example of natural law which can be deduced by rational thought. Again, Kant argues that these categorical imperatives must never be violated regardless of the circumstances and even if the conduct required by the categorical imperative should violate a law. (MacIntyre, 1968) If the law in Atlanta Georgia in 1859 says that slavery is legal and that aiding a slave to escape is illegal, the natural law advocate would ask whether you are willing to universalize this law. In other words would it ok for the legislature to decide that any human can be a slave (Caucasian, Jew, Native American) and aiding them in attempts to escape would be criminal activity? Would you think this a

good law if you were the slave? If not it is a violation of natural law. Natural law would include the principle that humans have a natural right to liberty and that is an imperative that we would all be willing to universalize. Kantian analysis is often attributed to Abraham Lincoln because of his allegiance to universal rights on the slavery issue. Importantly, it is the individuals duty to observe the principle of natural law regardless of the consequences. This obligation can, by the same test, be viewed as a rule we would be willing to universalize: that all humans act in accord with natural law at all times. Abraham Lincoln is quoted as saying: For though volume upon volume is written to prove slavery a good thing, we never hear of the man who wishes to take the good of it by being a slave himself! (Miller, 2002) In a sense ethical inquiry is a grand effort to identify those universal principles of natural law. Ethical analysis requires that we independently analyze conflicting values and, using our own God given intellect, discover the natural laws which bind us and empower us as a distinct species. The premise is that humans are not just self-interested creatures but have another dimension which reveres outcomes like justice, fairness, liberty, and security. Both ethicists and religious leaders have pursued the definition of these higher laws. Political leaders have also wrestled with the identification of these natural laws with the aspiration of implementing them as conventions of society insofar as political institutions are able. The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948, is a striking example of this endeavor. The preamble of the Declaration begins with these words: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world, (Universal, 1948) What of Conflicts Between Manmade Law and Natural Law? Proponents of natural law strongly believe that natural law is above man-made law and if the two ever come into conflict one should follow natural law and, if necessary, violate man-made law. The Declaration of Independence states that men have a duty to overthrow any government which violates natural law. Even man made law begrudgingly acknowledges the standing of natural law. William Blackstone, foremost authority of his time on the law, inCommentaries on the Law of England Wrote: The law of nature being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them that are valid derive all theirauthority from this original. (Blackstone, 1979)

The basic English Common Law is built upon the assumption that a Judge can create a new rule, for universal application through application of the legal principle of stare decisis et non quieta movere, by thoughtful reflection on the natural dictates of justice in any given case. One of the four recognized schools of judicial thought is called the natural law school. Judges which fall into this category are characterized by their willingness to ignore precedent and even statutory law when necessary to avoid a violation of higher natural law, a miscarriage of justice. (Cross, 2004) Tracing its roots to Aristotle, this school advocates the supremacy of rationally identified universal principles which apply without exception to all people regardless of local custom or legal requirements. Lon Fuller, one of the twentieth centurys great natural law proponents in his work The Morality of Law, was concerned more with the process of making and applying laws. His central concern was to examine the central function for law in society. He concluded that laws central moral value was in achieving social order. Natural law then rationally required that if the value of law is social order then certain principles could be used to measure whether a specific law did or did not promote social order. He suggested eight universal principles which can be used to qualify all man made law: 1. Laws must be general.

2. Laws must be publicized. 3. Laws cannot be retroactive. 4. Laws must be understandable. 5. A set of laws must not contain contradictions. 6. Laws must be within the power of citizens to obey. 7. Laws must maintain a certain stability through time. 8. Laws as announced must be in agreement with their actual administration. Any law which did not conform to these eight principles could not inform citizens decision before their decision is made to act or not to act in a certain situation and therefore could have no positive effect on achieving social order. (Fuller, 1964) The Requirement for Independent Judgment The highly regarded theories of Lawrence Kohlberg on moral development place independent rational determination of ethical duties at the top of the development continuum. (Goslin, 1969) (F. Clark Power 1989) This again emphasizes the duty of each individual to decide whether laws are natural, not relinquishing the authority to make such a judgment to a legislature, a judge or a policeman. Martin Luther King and Mahatma Gandhi are sited as examples of this higher order of behavior in which conscience is followed even when, perhaps especially when, such behavior involves

a violation of the law. Following is a small except from Martin Luther Kings famous letter from the Birmingham jail which discusses the principle of natural law: Martin Luther King's Letter from Birmingham Jail AUTHOR'S NOTE: This response to a published statement by eight fellow clergymen from Alabama (Bishop C. C. J. Carpenter, Bishop Joseph A. Durick, Rabbi Hilton L. Grafman, Bishop Paul Hardin, Bishop Holan B. Harmon, the Reverend George M. Murray. the Reverend Edward V. Ramage and the Reverend Earl Stallings) was composed under somewhat constricting circumstance. Begun on the margins of the newspaper in which the statement appeared while I was in jail, the letter was continued on scraps of writing paper supplied by a friendly Negro trusty, and concluded on a pad my attorneys were eventually permitted to leave me. Although the text remains in substance unaltered, I have indulged in the author's prerogative of polishing it for publication. April 16, 1963 MY DEAR FELLOW CLERGYMEN: While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statements in what I hope will be patient and reasonable terms. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there fire two types of laws: just and unjust. I would be the Brat to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all" Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts

human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I-it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong. Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured? Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest. I hope you are able to grasp the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to

certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience. We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws. I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection. I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured. In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God-consciousness and never-ceasing devotion to God's will

precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber. Please note that the foregoing is but a small excerpt from Dr. Kings compelling letter justifying the strategies of his movement. A complete study of the entire text is strongly recommended. (Ravitch, 1992). Jails are hardly strangers to natural law proponents. In Civil Disobedience, Henry David Thoreau, who also went to jail rather than pay taxes to a government he believed to be acting against principles of justice, wrote as follows: But government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which the majorities do not virtually decide right and wrong, but conscience?...Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator?...It is not desirable to cultivate a respect for the law, so much as for the rightif it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the lawUnder a government which imprisons unjustly, the true place for a just man is also a prisonthe only house in a slave State in which a free man can abide with honor. (Thoreau, 1849) Herein lays one of the most powerfully articulated contributions of natural law proponents. Humans have a personal obligation to independently comprehend what natural law requires of them and, more importantly, to act in accord with that law. To fail in either respect is to fail morally and to fail to live to ones potential as a human.

Natural Law
The term natural law is ambiguous. It refers to a type of moral theory, as well as to a type of legal theory, but the core claims of the two kinds of theory are logically independent. It does not refer to thelaws of nature, the laws that science aims to describe. According to natural law moral theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings and the nature of the world. While being logically independent of natural law legal theory, the two theories intersect. However, the majority of the article will focus on natural law legal theory. According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. There are a number of different kinds of natural law legal theories, differing from each other with respect to the role that morality plays in determining the authority of legal norms. The conceptual jurisprudence of John Austin provides a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world. Classical natural law theory such as the theory of Thomas Aquinasfocuses on the overlap between natural law moral and legal theories. Similarly, the neonaturalism of John Finnis is a development of classical natural law theory. In contrast, the

procedural naturalism of Lon L. Fuller is a rejection of the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. Lastly, Ronald Dworkins theory is a response and critique of legal positivism. All of these theories subscribe to one or more basic tenets of natural law legal theory and are important to its development and influence.

Table of Contents
1. 2. a. b. 3. 4. 5. 6.
Two Kinds of Natural Law Theory Conceptual Naturalism The Project of Conceptual Jurisprudence Classical Natural Law Theory The Substantive Neo-Naturalism of John Finnis The Procedural Naturalism of Lon L. Fuller Ronald Dworkins Third Theory References and Further Reading

1. Two Kinds of Natural Law Theory


At the outset, it is important to distinguish two kinds of theory that go by the name of natural law. The first is a theory of morality that is roughly characterized by the following theses. First, moral propositions have what is sometimes called objective standing in the sense that such propositions are the bearers of objective truth-value; that is, moral propositions can be objectively true or false. Though moral objectivism is sometimes equated with moral realism (see, e.g., Moore 1992, 190: the truth of any moral proposition lies in its correspondence with a mind- and convention-independent moral reality), the relationship between the two theories is controversial. Geoffrey Sayre -McCord (1988), for example, views moral objectivism as one species of moral realism, but not the only form; on Sayre-McCords view, moral subjectivism and moral intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law moral theory is committed only to the objectivity of moral norms. The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: the rule and measure of human acts is the reason, which is the first principle of human acts (Aquinas, ST I-II, Q.90, A.I). On this common view, since human beings are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of human beings (thus, natural law). But there is another kind of natural law theory having to do with the relationship of morality to law. According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their authority not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards. Otherwise put, some norms are authoritative in virtue of their moral content, even when there is no convention that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality intersect in some way is called the Overlap Thesis. As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the two theories, strictly speaking, are logically independent. One can deny natural law theory of law but

hold a natural law theory of morality. John Austin, the most influential of the early legal positivists, for example, denied the Overlap Thesis but held something that resembles a natural law ethical theory. Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of a norm depends on whether its content conforms to morality. But while Austin thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarianism almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that utilitarians sometimes seem to suggest that they derive their utilitarianism from certain facts about human nature; as Bentham once wrote, nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne (Bentham 1948, 1). Thus, a commitment to natural law theory of morality is consistent with the denial of natural law theory of law. Conversely, one could, though this would be unusual, accept a natural law theory of law without holding a natural law theory of morality. One could, for example, hold that the conceptual point of law is, in part, to reproduce the demands of morality, but also hold a form of ethical subjectivism (or relativism). On this peculiar view, the conceptual point of law would be to enforce those standards that are morally valid in virtue of cultural consensus. For this reason, natural law theory of law is logically independent of natural law theory of morality. The remainder of this essay will be exclusively concerned with natural law theories of law.

2. Conceptual Naturalism
a. The Project of Conceptual Jurisprudence
The principal objective of conceptual (or analytic) jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, conceptual jurisprudence seeks the essence or nature which is common to all laws that are properly so called (Austin 1995, 11). Accordingly, the task of conceptual jurisprudence is to provide a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world. While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that can be served by conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain what is important or essential about a class of objects; and (4) to establish an evaluative test for the concept-word. Bix takes conceptual analysis in law to be primarily concerned with (3) and (4). In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law have traditionally been characterized in terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law have traditionally been divided into two main categories: those like natural law legal theory that affirm there is a conceptual relation between law and morality and those like legal positivism that deny such a relation.

b. Classical Natural Law Theory


All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non-conventional relation between law and morality. According to this view, then, the notion of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted. The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can think of eternal law as comprising all those scientific (physical, chemical, biological, psychological, etc.) laws by which the universe is ordered. Divine law is concerned with those standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation. The natural law is comprised of those precepts of the eternal law that govern the behavior of beings possessing reason and free will. The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational nature of human beings. Good and evil are thus both objective and universal. But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that which is promulgated by human beings) is valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the point: [E]very human law has just so much of the nature of law as 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 (ST I-II, Q.95, A.II). To paraphrase Augustines famous remark, an unjust law is really no law at all. The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William Blackstone describes the thesis, This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original (1979, 41). In this passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law. It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law. While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles. There will still be coordination problems (e.g., which side of the road to drive on) that can be resolved in any number of ways consistent with the set of moral principles. Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. Rather she claims only that such discretion is necessarily limited by moral norms: legal norms that are promulgated by human beings are valid only if they are consistent with morality. Critics of conceptual naturalism have raised a number of objections to this view. First, it has often been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons. As Austin petulantly put the point:

Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity (Austin 1995, 158).

Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is always possible for a court to enforce a law against a person that does not satisfy Austins own theory of legal validity. Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy (1990, 18) put the point:
The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate the law and determine our moral obligations with respect to the law) are actually rendered more difficult by its collapse of the distinction between morality and law. If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law.

There are a couple of problems with this line of objection. First, conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of moral criticism: given that the norm being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not legally valid. Thus, the state commits wrong by enforcing that norm against private citizens. Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law by pointing to its practical implications a strategy that seems to commit a category mistake. Conceptual jurisprudence assumes the existence of a core of social practices (constituting law) that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications. A more interesting line of argument has recently been taken up by Brian Bix (1996). Following John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally:
A more reasonable interpretation of statements like an unjust law is no law at all is that unjust laws are not laws in the fullest sense. As we might say of some professional, who had the necessary degrees and credentials, but seemed nonetheless to lack the necessary ability or judgment: shes no lawyer or hes no doctor. This only indicates that we do not think that the title in this case carri es with it all the implications it usually does. Similarly, to say that an unjust law is not really law may only be to point out

that it does not carry the same moral force or offer the same reasons for action as laws consistent with higher law (Bix 1996, 226).

Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- naturalism of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be made in favor of Bixs view, the long history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely.

3. The Substantive Neo-Naturalism of John Finnis


John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone. Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. According to Finnis, the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: the principles of natural law explain the obligatory force (in the fullest sense of obligation) of positive laws, even when those laws cannot be deduced from those principles (Finnis 1980, 23-24). On Finniss view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion (a view he shares with Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not fully law. Like classical naturalism, Finniss naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship, religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good. On Finniss view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows:
[T]he term law refer[s] primarily to rules made, in accordance with regulative legal r ules, by a determinate and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a complete community, and buttressed by sanctions in accordance with the rule -guided stipulations of adjudicative institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the communitys co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community (Finnis 1980, 276).

Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity: one would simply be misunderstanding my conception of the nature and purpose of explanatory definitions of theoretical concepts if one supposed that my definition ruled out as non laws laws which failed to meet, or meet fully, one or other of the elements of the definition (Finnis 1980, 278).

Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law. Unjust laws may obligate in a technical legal sense, on Finniss view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide. Thus, Finnis argues that a rulers use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends or partys or factions advantage, or out of malice against some person or group (Finnis 1980, 352). For the ultimate basis of a rulers moral authority, on this view, is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a communitys co- ordination problems (Finnis 1980, 351). Finniss theory is certainly more plausible as a theory of law than the traditional interpretation of classical naturalism, but such plausibility comes, for better or worse, at the expense of naturalisms identity as a distinct theory of law. Indeed, it appears that Finniss natural law theory is compatible with naturalisms historical adversary, legal positivism, inasmuch as Finniss view is compatible with a source-based theory of legal validity; laws that are technically valid in virtue of source but unjust do not, according to Finnis, fully obligate the citizen. Indeed, Finnis (1996) belie ves that Aquinass classical naturalism fully affirms the notion that human laws are posited.

4. The Procedural Naturalism of Lon L. Fuller


Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary substantivemoral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality. On Fullers view, human activity is necessarily goal-oriented or purposive in the sense that people engage in a particular activity because it helps them to achieve some end. Insofar as human activity is essentially purposive, according to Fuller, particular human activities can be understood only in terms that make reference to their purposes and ends. Thus, since lawmaking is essentially purposive activity, it can be understood only in terms that explicitly acknowledge its essential values and purposes:
The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort (Fuller 1964, 106).

To the extent that a definition of law can be given, then, it must include the idea that laws essential function is to achiev[e] [social] order through subjecting peoples conduct to the guidance of general rules by which they may themselves orient their behavior (Fuller 1965, 657). Fullers functionalist conception of law implies that nothing can count as law unless it is capable of performing laws essential function of guiding behavior. And to be capable of performing this function, a system of rules must satisfy the following principles:

(P1) the rules must be expressed in general terms; (P2) the rules must be publicly promulgated; (P3) the rules must be prospective in effect; (P4) the rules must be expressed in understandable terms; (P5) the rules must be consistent with one another; (P6) the rules must not require conduct beyond the powers of the affected parties; (P7) the rules must not be changed so frequently that the subject cannot rely on them; and (P8) the rules must be administered in a manner consistent with their wording.

On Fullers view, no system of rules that fails minimally to satisfy these principles of legality can achieve laws essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior because people will not be able to determine what the rules require. Accordingly, Fuller concludes that his eight principles are internal to law in the sense that they are built into the existence conditions for law. These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two respects: (1) law conduces to a state of social order and (2) does so by respecting human autonomy because rules guide behavior. Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fullers view, that they constitute a morality. Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist. Nevertheless, Fullers conceptual naturalism is fundamentally different from that of classical naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law, holding instead that there are necessary moral constraints on the procedural mechanisms by which law is made and administered: What I have called the internal morality of law is a procedural version of natural law [in the sense that it is] concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be (Fuller 1964, 96- 97). Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists. The classical naturalists view morality as providing substantive constraints on the content of individual laws; an unjust norm, on this view, is conceptually disqualified from being legally valid. In contrast, Fuller views morality as providing a constraint on the existence of a legal system: A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all (Fuller 1964, 39). Fullers procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for example, denies Fullers claim that the principles of legality constitute an internal morality; according to Hart, Fuller confuses the notions of morality and efficacy:
[T]he authors insistence on classifying these principles of legality as a morality is a source of confusion both for him and his readers. [T]he crucial objection to the designation of these principles of good legal craftsmanship as morality, in spite of the qualification inner, is that it perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive activity and morality. Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. (Avoid poisons however lethal if they cause the victim to vomit.) But to call these principles of the poisoners art the morality of poisoning would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned (Hart 1965, 1285-86).

On Harts view, all actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral standards. Thus, while Hart concedes that something like Fullers eight principles are built into the existence conditions for law, he concludes they do not constitute a conceptual connection between law and morality.

Unfortunately, Hart overlooks the fact that most of Fullers eight principles double as moral ideals of fairness. For example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably calculated to give notice of what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its internal standards of efficacy, but such standards are distinguishable from the principles of legality in that they conflict with moral ideals. Nevertheless, Fullers principles operate internally, not as moral ideals, but merely as principles of efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent with considerable divergence from the principles of legality. Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And officials all too often fail to administer the laws in a fair and even-handed manner even in the best of legal systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior. Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditions and not because they function as moral ideals.

5. Ronald Dworkins Third Theory


Ronald Dworkins so-called third theory of law is best understood as a response to legal positivism, which is essentially constituted by three theoretical commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature. The Conventionality Thesis emphasizes laws conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states. The Separability Thesis, at the most general level, simply denies naturalisms Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality. As Hart more narrowly construes it, the Separability Thesis is just the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so (Hart 1994, 185-186). Dworkin rejects positivisms Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40). In Riggs v. Palmer, for example, the court considered the question of whether a murderer could take under the will of his victim. At the time the case was decided, neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victims will. Despite this , the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong. On Dworkins view, the court decided the case by citing the principle that no man may profit from his own wrong as a background standard against

which to read the statute of wills and in this way justified a new interpretation of that statute (Dworkin 1977, 29). On Dworkins view, the Riggs court was not just reaching beyond the law to extralegal standards when it considered this principle. For the Riggs judges would rightfully have been criticized had they failed to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law. Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive from promulgation in accordance with purely formal requirements: [e]ven though principles draw support from the official acts of legal institutions, they do not have a simple or direct enough connection with these acts to frame that connection in terms of criteria specified by some ultimate master rule of recognition (Dworkin 1977, 41). On Dworkins view, the legal authority of the Riggs principle can be explained wholly in terms of its content. The Riggs principle was binding, in part, because it is a requirement of fundamental fairness that figures into the best moral justification for a societys legal practices considered as a whole. A moral principle is legally authoritative, according to Dworkin, insofar as it maximally conduces to the best moral justification for a societys legal practices considered as a whole. Dworkin believes that a legal principle maximally contributes to such a justification if and only if it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be. Accordingly, on Dworkins view, adjudication is and should be interpretive:
[J]udges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract (Dworkin 1982, 165).

There are, thus, two elements of a successful interpretation. First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light. For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the following way:
A thoughtful judge might establish for himself, for example, a rough threshold of fit which any interpretation of data must meet in order to be acceptable on the dimension of fit, and then suppose that if more than one interpretation of some part of the law meets this threshold, the choice among these should be made, not through further and more precise comparisons between the two along that dimension, but by choosing the interpretation which is substantively better, that is, which better promotes the political ideals he thinks correct (Dworkin 1982, 171).

As Dworkin conceives it, then, the judge must approach judicial decision-making as something that resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases on the

basis of those moral principles that figure[] in the soundest theory of law that can be provided as a justification for the explicit substantive and institutional rules of the jurisdiction in question (Dworkin 1977, 66). And this is a process, according to Dworkin, that must carry the lawyer very deep into political and moral theory. Indeed, in later writings, Dworkin goes so far as to claim, somewhat implausibly, that any judges opinion is itself a piece of legal philosophy, even when the philosophy is hidden and the visible argument is dominated by citation and lists of facts (Dworkin 1986, 90). Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights Thesis, according to which judicial decisions always enforce pre-existing rights: even when no settled rule disposes of the case, one party may nevertheless have a right to win. It remains the judges duty, even in hard cases, to discover what the rights of the parties are, not to invent new rights retrospectively (Dworkin 1977, 81). In Hard Cases, Dworkin distinguishes between two kinds of legal argument. Arguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole (Dworkin 1977, 82). In contrast, arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right (Dworkin 1977, 82). On Dworkins view, while the legislature may legitimately enact laws that are justified by arguments of policy, courts may not pursue such arguments in deciding cases. For a consequentialist argument of policy can never provide an adequate justification for deciding in favor of one partys claim of right and against another partys claim of right. An appeal to a pre-existing right, according to Dworkin, can ultimately be justified only by an argument of principle. Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must ultimately be based on the moral principles that figure into the best justification of the legal practices considered as a whole. Notice that Dworkins views on legal principles and judicial obligation are inconsistent with all three of legal positivisms core commitments. Each contradicts the Conventionality Thesis insofar as judges are bound to interpret posited law in light of unposited moral principles. Each contradicts the Social Fact Thesis because these moral principles count as part of a communitys law regardless of whether they have been formally promulgated. Most importantly, Dworkins view contradicts the Separability Thesis in that it seems to imply that some norms are necessarily valid in virtue of their moral content. It is his denial of the Separability Thesis that places Dworkin in the naturalist camp.