NL (cont.
)
18 August 2015 11:05
Natural Law Today: Contemporary Turns
1. Basic problem remains the same:
a. How to integrate extra-legal checks on the power of the
sovereign
b. Without violating his right to legislate
2. Theoretical Approaches --> Fuller ["inner morality" of law]
a. Refer Wacks Pg. 12 Set of 8 procedural safeguards [non-
contradiction, clarity, possibility, promulgation etc.]
b. Without which law is not law.
c. Problem cases:-
1) Refer Wacks Pg. 13 ["Beach and Sea", Whites Only] +
"Dogs and Indians not allowed"
2) They satisfy 8 principles, still immoral?
3. Practical Approaches --> often adopted by Courts -
a. There are limits to State-Power ["The king can do wrong"]
b. These limits are imposed by extra-legal considerations
[fairness, justice, reason, rationality etc.]
c. The State [Sovereign/King] can decide WHAT is right/wrong
1) so long as it follows certain procedures
2) Thus, the nature of these limits is purely formal (i.e.
process-based)
1) e.g. laws that discriminate must follow the
following tests [if they are not to violate equality]
a) Reasonable classification: e.g. policies
targeting "women and children" [reason]
b) Rational nexus: between policy and
classification: "protection of vulnerable
groups" [rationality]
c) Proportionality: the benefit caused to society
must be greater than the harm caused to
those left out [utilitarian morality]
2) If all these procedures (steps) are followed:
then --> no violation of equality.
d. Therefore, evolution of Procedural Principles/Maxims ensure
the presence of extra-legality in the law: few examples -
1) "due process"
2) "natural justice"
1) Right to be heard
2) Rule against bias
3) "procedure established by law": must be fair and
equitable [Maneka Gandhi Case]
4) "Where the reason for the law ceases, law itself ceases"
[the positive legal order contains provisions for its own
suspension]
4. Problems:-
i. Seen in this way, a formalised approach to NL can solve the
problem of Objectivity/Universality
ii. But can it solve the problem of Enforcement? Does not seem
so.
1) e.g. International Human Rights law [the Chinese
example]
Takeaways || Law & Morality
1. There is an essential relationship between
law and morality (between extra-legality
and legality)
2. An adherence to Natural Law philosophy
means to admit that there are limits to
state-authority
3. In the Classical Phase, this limit came
from God's Will.
4. In the Medieval Phase, this limit came
from The Power of the People [Social
Contract].
5. In the Modern Phase, it came from
Individual Rights.
6. Contemporary Turn: It is now widely
believed that Morality is integrated within
Positive Law through legal principles
(test/procedures) established by Judges.
a. This does not mean that judges have
absolute discretion in hard cases
and are free to introduce their own
moral views.
i. They are bound by:
1) The legislative will
2) Principles evolved
through earlier
judgments.
b. e.g .Art. 21 v. Art. 25 - what to do in
case two fundamental rights
conflict?: Court evolves a
process/method to solve future
disputes: "essential aspects" test.
c. This method ensures a compromise
between extra-legal principles
(morality, fairness, justice etc.) and
positive law.
Conclusions
1. Normative Legal Order* = Positive Law
(written rule made by the legislature) +
Extra-legal Principles (evolved through
judgments)
2. These moral principles are not Substantive
insofar as they do not tell us what is moral
and what is not. Instead, they tell us how
morality/fairness may be ensured.
3. This shows A GENERAL FORMALISATION OF
NATURAL LAW PHILOSOPHY.
4. These principles may be applied universally
across all legal systems, but the problem of
enforcement still remains.
* Law as a system of social rules