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Equity 2-Theories of Natural Law

Contents
1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) Introduction .................................................................................................................................................................... 2 American Declaration of Independence ....................................................................................................................... 2 What is natural law? ..................................................................................................................................................... 3 Cicero on natural law ...................................................................................................................................................... 4 Elements of natural law .................................................................................................................................................. 5 St Thomas Aquinas 1225-1274 ....................................................................................................................................... 6 17th century .................................................................................................................................................................... 8 A natural law revival? We tend to call it human rights nowadays................................................................................. 9 John Finnis (Australian) ................................................................................................................................................... 9 Unjust laws ................................................................................................................................................................ 10 Radbruchs Formula .................................................................................................................................................. 11

1) Introduction
a) Social responsibility: ones action has the reason for your action and you ought to act in a rational and socially responsible way. b) What are/ should be the fundamental value according to which we organize our way in the society? c) What is the content of our law? How do our values (ethical, moral, political, right/ wrong) inform our legal order, both as institutions and content of law? What ought the law to be? d) If the law is unjust, does that make it problematic anyway? Like legal positivist, anything can be law? e) What makes law just social institutions, such that we can have good reason to obey the law? f) People disagree about law purposes and values, these theorists are criticized. Why does it matter? If values matter, how do we organize ourselves according to natural good values?

2) American Declaration of Independence


a) American British coly were fed up with the British government and revolted. The American Revolution was a deliberate act to violate the established. b) How they justify the revolution? i) We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (1) This is natural law declaration. (2) Men are created equal: There are certain truths about human and the world that they are so obvious that they are self-evident. Any moment of thoughts about what is good for people will produce these truths. This is a radical statement. Unlike British constitutional history where the King is not produced equal, and the Lords were not equal to the peasant. (3) Certain unalienable Rights: rights we have intrinsically that we cannot get rid of. We cannot sell, trade or cash our right to life or liberty. These truth are so obvious that they demand instantiations in a political society. ii) That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government (1) Governments are instituted among man: We have inalienable rights by virtue of just being human. In order to protect these rights, we have authority and institutional form of authority government. (2) Derive their just powers from the consent of the governed: Where does the government authority come from? The people. Consent of the people is what makes government legitimate. (3) Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it: profound claims of what to be human. The government is there to protect these values. (a) Why does natural law matters? They have to fight to British to establish United States of America.

(b) Rationale: If government does not play its part in protecting these rights, the people have the right to overthrow the government. Natural law is the theory of revolution and went into practice to motivate people to fight. iii) Two tensions created under the Natural Theory (1) Natural law theory is about values, about motivating people and giving reasons for particular form of organization. It seems to involve contradictions (a) Radical and rebellious ration of natural law: fight government in the need of inalienable rights. It is still important nowadays. Today we do not think of natural rights, but we may think about it as human right. People fighting against exotic governments in the name of human rights, rights that we have by virtue of being a human. It is the modern natural law version of inalienable rights. Contemporary natural law thinking is provocative. It demands to be instituted as a particular value system. Revolutionary theory. (b) Conservative: what community or what the legal system should do is to preserve these values and to establish a different form of government to preserve these values, but to get rid of the government. Force of conserving values. (c) Natural law involves tension between aspiration and conservation. (2) We hold these truths to be self-evident, that all men are created equal Does Jefferson actually believe it? Does the American colony believe that all men are born to be equal? (a) The conserving side of the Natural Law might not always have been the direction that we suppose to see. (i) It took another hundreds year of civil war before slavery become abolished in US. (ii) Further, all men was not talking about woman. Men only refer to white men and property men. (b) Here, certain instantiation of values that support particular form of social order. (c) We study the history of man and how they justify the form of government. iv) (similar documents were found in the documents of French Revolution) v) History of natural law is history on one hand of inalienable truth, self-evident truth. On the other hand, it is the history of the development of how we understand what values mean today. Today, the quality mean also the quality between men and women, between races. c) Why does it matter? It has been a huge force in thinking and acting in human values and human institutions.

3) What is natural law?


a) The law of nature: physical v. normative (1) It is not natural: Having sex with non-human animals is not natural. It is not the way it ought to be. It is relevant to the contemporary medical law. The question of creating and designing baby. This is not the way the nature intended us to reproduce, yet, the technology is there, to reproduce and clone.

(2) The question of nature is still a live one. (3) Law of nature? Physical laws are different from normative law. Two ways: (a) Physical Law e.g. Law of gravity. It is not that my pen ought to fall to the ground, but it will fall because of gravity. (b) Normative Law: something ought to happen. I.e. you ought not to kill other human beings. (i) When we are think of natural law in human sense, we think of it in normative aspects. b) Human natures: There are certain things that we just naturally behave like this. It is contested that somebody says human nature is good, while other say human nature is bad. Human nature has propensity to bad, as well as good. Therefore, we may not think of one single version of human nature. c) Human beings are beings as they naturally are: in a particular environment or particular kind of society d) Natural features and propensities: propensities mean sociable or to reproduce it. e) Natural laws are principles of good conduct: When we think about human interaction, we see that there are certain personal, public and social ways of acting, that are not just good because we say they are good, but they are good because they are intrinsically valuable, the values of family, friendship and sociability. f) How to work out what these general frames require? In the natural theory, we use our reason to establish the principles of good conduct. Therefore, natural law is a theory of values, a theory of hope we ought to behave and what law we ought to institute among ourselves in order to promote the values.

4) Cicero on natural law


a) True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.... i) True law is right reason in agreement with nature: the natural world and social world is a certain way that we reason through it.

ii) Universal application (echo with different laws at Rome and Athens): these natural values apply to every part of the world. E.g. Universal declaration of Human Rights-the idea that whether you are British or Chinese, you have these values by virtue of being a rational human being. iii) It summons to duty: Importantly, this is a normative aspect. We ought to try to fulfill or live up to these values, organize ourselves in a community or a group in order to deliver these values. If it happens that it is broken, there are prohibitions or sanctions imposed on people doing the wrongdoings. b) It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish entirely. We cannot be freed from its obligations by senate or people And there will not be different laws at Rome and Athens but one eternal and unchangeable law will be valid for all nations and all times i) We cannot be freed from its obligations by senate or people: If a government institute a law that seems to go against the fundamental principle of natural law, that does not mean we do not have these obligations, it just means the government is not living up to it. If we have obligations that naturally right in themselves, and the government is not upholding it, we are not free from the natural law. Just because the government

said it is ok to wipe off particular races, it does not mean that it is right and we should just do it. Natural law is something that is fundamental. c) Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst punishment." i) Denying your human nature, we got this sense of human nature directly from Ciero definition of natural law.

5) Elements of natural law


a) Nature: human place in the natural world. With the ancient Greece, we had a sense of the natural world that involves the plurality of God. Human see the natural world to see it as one, a spiritual one. Religion has been historically closely linked to how people think about the human nature and human place in the world. b) Fundamental values: unchanging, unchangeable. Values that are self-evidently true and you cannot escape your obligation. Natural law is about a fundamental law, or about a higher law, a law that is higher than any particular states have to do. c) Reason: It is about reasoning, provide reasons for justified behaviors. i) Two ways of acting unreasonably: (1) They are pursuing particular goals, but using a wrong means to get it. (2) It may mean not fair. There are reasons to see it is not reasonable. ii) It is about using our mental faculties to understand and grasp the general principles of natural law; fundamental values and obligations. It is about a form of rationality. iii) Can reason what their implementation requires: Reason also moves from general principles to more particular instantiations: when we want to implement particular values, we have a particular reason how we are going to. iv) Human law should reflect these as determinations or instantiations of the natural law: With human law, it is a subset of natural law, the moral community. In order to get from moral values to concrete moral implementation, we use reason in common law. (1) Intrinsic value of human life and it is self-evidently true and it is universally right. There ought to be a prohibition on killing. This is instantiations of the general values that we ascribe to lives. It means we ought to have a law against murder. It is not to say that people will not break the law, they will, but they ought not to. This is a process of reasoning. (Intrinsic values of human life down to the establishment of law against murder.) (2) Intrinsic value of life principle of prohibition on killing law of murder v) Is killing always wrong? Self-defence Human society has been constantly fighting each other. Should war be outlawed? vi) Is killing sometimes right? (1) To overthrow dictator who massacre children. Is it right to intervene? Contemporary, is national law doctrine known as humanitarian intervention. If that involves some people being killed, particularly

soldiers in the opposite side that is justified. We have an intrinsic value of life. There may be excepted by using our reason. People may reason with different conclusion. (2) Abortion is killing, a form of murder, which is willfully taking lives. Other communities say it is not. Up to a certain states, we are not dealing with a human being, but a fetus, Fetus do not have right as such. Therefore, our reasoning may pull us to different direction because we have different determinations and different instantiations of the fundamental values. (3) Nonetheless, we want ourselves and our government to act reasonably, to instantiate a form of authority that protects these values. This is the natural law approach. d) Universal: It is universal and applicable to everyone all the time.

6) St Thomas Aquinas 1225-1274


a) Introduction i) Background: As a philosopher, he was confronted by a set of idea, where the ideas were associated with Aristotle. Aristotle was an incredibly presenter and persuasive thinker about human community. Aristotle was not a Christian; Aquinas synthesizes the thinking of Aristotle and the thinking of Christian Church, Christian understanding of man place in the universe.

ii) Aristotle: men are by nature political animals. It is human nature to live in a state. State is the highest form of the human community. Today, we tend not to think that as the highest form of the human community, but sometimes necessary evil, things we have to have in order to get on. (1) What the state was to embody and what is the common good for the society? The state was the embodiment, the highest form of achievement for what it meant to be good citizenship. (2) Citizenship: participation in judgment and authority. Citizens have the obligations to pursue, to further excellence. The idea similar to lecture 1, same idea when it comes to political states, we pursue out common good through states. (3) Similar to Jefferson, ancient Greece was a slave society. In fact, people participate does have the authority to live higher. [keep in mind] b) Definition of Law by Aquinas: a rational ordering of things which concern the common good; promulgated by whoever is charged with the care of the community: i) a rational ordering of things which concern the common good: (1) There are certain things that we are in common, i.e. quality of life that we ought to pursue it. (2) Certain goods and value that we can only pursue in common, as in community. (e.g. Lon Fuller: pursue excellence in sport/ orchestra), economic and politics. (3) It is not just about common values we share, but the idea of that we pursue in certain practices, certain virtue or certain aspiration as a group. The law is precisely concerned with these two aspects of common goods. (instantiation of values and pursuing them in coordination with each other)

ii) Promulgated by whoever is charged with the care of the community: Human law has to be enacted and promulgated. (Lon Fullers 8 criteria) Whoever promulgates it, is charged with the care of the community, may be representative, or unelected. Whoever is charged with the care of the community has the authority to promulgate the law. c) participation in the eternal law by rational creatures is called the natural law (1) Divine law: Law of God (2) Natural law: general law. (Biggest cycle). Its about participation, natural law demands action and provide reasons for actions. d) Two ways to derive what the natural law require: i) Conclusions from general principle: law of murder is being required if you want to uphold the values of human life.

ii) A determination of certain general features: There can be variety in human law, human law not necessary the same in every countries. E.g. Hong Kong drives in left side of the road, while China drives in the right side of the road. It matters is not which side of the road you are driving, what matters is we have to do it in the same way, but not how it should be done. Therefore, we have to have our human law, which have to be determined by a greater principle. It does not really matter exactly which rations you choose, as long as you choose the one that coordinate the possibility of safety. We may think about and reason from the general framework and idea to particular determinations, there may be lots of variety. e) Need for enacted human laws? necessary to the peaceful and virtuous life of men: i) If we got all the natural law, all these values that we know it is self-evidently true, why do we need human law at all. The idea that we are not angel, some people would not see clearly what these values are. Some people will put into wrong kind of conclusions. (1) We need human law to guide people (2) We need human laws to co-ordinate our activities because we are a group. Human require co-ordination, we do that through laws, through providing human laws that appeal to people reasons. Give them reasons for acting in a co-ordinated manner in pursue of some common goals. (3) Law is a rule, measure of actions. It acts like a ruler that gives you a way to measure and judge behaviors. (4) The term law derives [etymologically] from binding, because by it one is bound to certain course of action. Unlike cats, human beings are bound by these laws, because we have the normative sense of obligation in such a way to pursue values and shrink the breach. f) Subordination of human laws to the natural law: human laws are a subset of the natural law.

g) The validity of law depends on its justice. h) if a human law is at variance in any particular with natural law, it is no longer legal, but rather a corruption of law [Controversial] i) Validity:

(1) Legal positivist: a law is a law, state enacted the law in proper manner, that what makes it matter. (2) Natural law theorist: validity of law does not depend on its source, but its justice. It is a sub-ordination of the natural law. (3) Controversial: If a statute passes a law, surely it is valid, even if it is unjust. Aquinas frames it as a corruption of law. So we have a sense that good law will be human law as a sub-ordination of human law. When you have unjust law, it is a corruption of law. It is like an invalid contract. (a) Is invalid contract still a contract? We call it a contract, but it is no valid. When law instantiate injustice, it is a corruption of law. (b) Why does it matter? If it is no longer a law, but a corruption of law. Then, we are not obliged to follow it. Jefferson: It is the right for the people to authorize or abolish the government. What the British were doing was no longer the sense just, it is the right for the people to doing something, and they feel they are not obliged to follow it, but to rebel it. The possibility for disobeying law to be virtuous, something to be the right things.

7) 17th century
a) Cicero: natural law is everlasting and unchanging. If that so, it is also the case that different thinkers have different conclusions about human nature and what it requires. b) State of nature: Hobbes v Locke i) There will war of all against all. There will be chaos if there is not legal system. There will be no property, justice or injustice.

ii) Hobbes: construct the theory of government. Government has to be strong and unified. iii) Locke: world is a harmonious place and people know rights and wrong. People have a sense of duty, a sense of right and justice. The problem is that it is unclear or people may not see it properly, government is instituted among men through social contract. People come together to create a new form of government (1) Importance: Theory of natural law. What is important is that natural law (Cicero) is centrally concerned with natural rights. It signal a shift from natural law, as Cicero did, to natural rights. (a) Why natural rights are important? If we have natural rights in the nature, by naturally as who we are, the pre-exist institution of government, we still have these rights. (b) What is the purpose of government? The purpose of the government is to protect these rights. These rights exist prior to the government. If the government does not recognize these rights, does not mean that you do not have it, just that your government does not recognize it. (c) Natural law -> natural rights c) LOCKE: priority of natural rights to existence of government: the purpose of the government is to protect these rights, i.e. protection of property rights. d) Limited government is good government: People have the right to rebel against the government.

i)

Limited to the purposes: chief end of mens uniting into commonwealths is the preservation of their property ii) Limited to the means it can use: rule of law (government must be exercised through law) iii) Inalienable rights that precedes the government. Social Contract. The Independent declaration is one way that adopting the standard of Locke and other thinkers. If government does not pursue its goal, does not do so through law but arbitrary, the people have the right to alter. In extreme circumstances, people have the rights to rebel against the government.

8) A natural law revival? We tend to call it human rights nowadays.


a) Post World War II b) UN Declaration of Human Rights (1948): 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 i) Fundamental values of natural law tradition

c) Article I: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. i) To a form of thinking about human society and the idea of what it means to be human beings. born equal, indignity and rights. Rights by virtue of just being human. ii) Somebody put it a natural law revival after WWII (Genocide). A response that say that states and state law can no longer be the foundation for international human community, humanity, inalienable human dignity. Human dignity is an foundation of freedom, peace and justice. iii) Sadly, genocide is still continuing. This is a normative claims, how things ought to be d) Recent development in terms of international law, determinations in Aquinas said of these founding principles, if you think of the International Criminal Court established recently. Criminal responsibilities (war claims, Genocides) are claims that have universal jurisdiction. International Criminal court in order to instantiate what it means for international community to show deterrence to these acts an institutional form to instantiate/ embodies these principles of human rights. i) US has not signed up to the international criminal court, it reject the jurisdiction of the international criminal court, but not necessary the thoughts of universal application. Why?

9) John Finnis (Australian)


a) Influence: revising studies of Aquinas and also certain forms of natural law thinking and natural rights. b) The fulcrum and central question of natural law theories of law is: How and why can law and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it? c) How can a rule's, a judgment's, or an institution's legal (formal, systemic) validity, or its facticity or efficacy as a social phenomenon (e.g., of official practice), make it authoritative in its subjects deliberations? i) Legal positivist: Content of law can be anything. What make something valid are its form of/ systematic validity.

ii) Natural Law thinkers: Human laws have to be promulgated, but it is not the end of the story. Why do we citizens have any reasons to obey these laws? It is only if we think of that in a particular way and that way is

within its biggest sphere between natural law and human fundamental value, not only legal obligation(murder), but also moral obligation to obey the law. Only under certain circumstances can law provide these authoritative reasons. d) Basic, self-evident goods e.g. Life, knowledge: Certain goods that is just intrinsically valuable. i) Knowledge is intrinsically valuable thing. When you argue that knowledge is not valuable, you are contradicting yourselves because you are making knowledge claims.

ii) Similarly in life, it is intrinsically value because It is not reducible to some other values. e) Principles of practical reasonableness: If here are these intrinsic values, things that are desirable for their own sake, we ought to pursue/ find a way to promote them. We do that through principles of reasonable, practical reasonableness. i) To pursue these goods, usually something we do it in common, e.g. friendship. Human community in pursuing things in common, they need guidance of coordination. Laws capacity to advance the common goods. Government and Law allow us to pursue goods in common. To secure human rights and other issues.

f)

Laws dual character as i) Social fact of power and practice: Is a fundamental element in laws capacity to advance the common good, to secure human rights, and govern with integrity socially enacted law

ii) A set of reasons for action that can be sound as reasons and therefore normative for reasonable people addressed by them. The law is not just what the government have to see it, the law has other aspects that provide reason for you to obey it. (Not only legal reason, but also moral reason) g) Laws dual capacity can provide the normative framework for the instantiation of fundamental values and provide rational grounds for authority and moral and legal obligations: i) Why do we have to follow the law? It is because we are part of the common enterprise. We pursue the common good through having an instantiated authority, through which the basic values can be protected ahd promoted.

ii) We have rational grounds and reasonable grounds for obeying the law: not because the government told us to follow, but because we see it as a product of free people as partners in public reason. h) Self-government of a free people as partners in public reason:

10) Unjust laws


a) Legal positivism: any content can be legal: a law is a law, b) Natural law: lex iniustia non est lex-unjust law is not a law i) Finnis : (1) legally valid but too unjust to be obeyed; or (a) South Africa: racial discrimination openly enacted by statute. Minority white discriminate against the majority black openly.

(i) Legal positivist: law enacted by the parliament; and that what make it legal (ii) Natural law: it may be legally enacted, but people are not obliged to follow. We feel no obligation to follow, but obliged to disagree with them. It armed struggle between the governments. (they recognize the validity of the law, but not any sense of obligation to obey it) (2) the rule, despite its source (e.g. in legislation) is not only not morally defective but also legally invalid (more radical) (a) Former: It is legally valid, but it is too unjustice (b) Radical: It is so unjust that it cannot be legal, it cannot be a law. (i) Crux: How would law enacted by the parliament is not a law? See Radbruch.

11)

Radbruch s Formula
i) Often claim by people doing it that it was the law of the time. E.g. Nazi Law allow such act.

a) The legal validity, or not, of Nazi legislation

ii) Practical, but not theoretical: whether people can be prosecuted after the law, whether it was defenses say that it was legal at the time. (wrong to punish the defendants, retrospectively) Problem to convict people retrospectively b) Positive law takes precedence even when its content is unjust: Certain values to have law, in a sense that it is better than having no law. One of value associated with the legal system is legal certainty. It is matter to be sure, although the law seems to give unjust application. c) Unless: the conflict between statute and justice reaches such an intolerable degree that the statute, as flawed law, must yield to justice. Conflict between statute law and higher law. d) Extreme injustice is no law: Court apply this explanation. e) Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed it lacks completely the very nature of law. i) Nazi legislation: racial discrimination. It does not try to be just among people. With that happen, we might say not only one that is unjust to be obeyed, it does not even qualify to become law. It lacks completely the very nature of law. (Source is valid, then it is the end of story?)

ii) Border guards for East Germany: legally obliged to kill people who want to escape to west Germany and some of the guards were prosecuted after the unification of Germany. The fact it is the law at the time, we do not have to recognize it if constituted an extreme injustice. iii) Importance: Natural law argues that when posit/ enact law, we are also at the same time it is just. (1) This country is a federal sovereign and unjust state. Why does it sound mad? We expect the law to make a claim to justice. When it said unjust, it is contradictory to the foundation of idea that law embodies the claims justice. Whether it deliberate attempt to violate the principles of equality, it negates its validity as law.

12) Summary a) Natural law concerns with theory of value and what it means to human in community with each other. b) We think of law just something enacted by parliament, but instantiation of human values and the reasoning that instantiate these values in social institutions.