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Finnis and natural law as practical reasonableness 7 basic forms of goods are: life, knowledge, play, aesthetic experience, friendship, practical reasonableness, and religion. To achieve these goods, moral and legal rules must be enacted that meet the standards of practical reasonableness.
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Read More »Philosphy of Law > Chapter 1: Natural Law Theory Introduction Natural law theorists suppose that certain facts about humans and their world provide the right basis for laws which guide human conflict. However, natural law theorists do not agree on which facts about the world should be taken as guides to laws. Some theorists depend on the existence of God and religious texts, some on human nature and capacity as the basis for laws. Regardless of these different bases, all theorists agree that ‘real’ laws are those which meet certain standards-usually moral standards which are found by using the rights facts and practical reasoning. To of the most influential natural law theorists are St. Thomas Aquinas (writer of Roman Catholic natural law tradition) and Professor John Finnis (contemporary defender of natural law theory). The purpose of law and legal theory: What is the purpose of philosophical investigation of law? Aquinas and Finnis agree that the philosophy of law should determine how best to order social interaction for the common good of all. They think that philosophical investigation should do more than simply describe certain features of laws; it should have the means to distinguish between real laws that impose obligations and defective laws that do not impose genuine obligations. The self-evidence of basic goods: Aquinas and Finnis say that certain goods (values) are self evident and thus provide guides to the formation of laws. Aquinas, from a Christian perspective, says that certain Christian values are self-evident while Finnis argues that by paying careful attention to the requirements of social life and individual fulfillment we can find good values. Laws should advance these values to serve the goal of human flourishing. They resemble Aristotle who considered human flourishing as involving happiness, self development and treating others fairly. Such happiness is self-evidently good and laws should contribute to this happiness. Practical reasoning : Aquinas and Finnis argue that laws do not make or interpret themselves therefore laws should be interpreted and applied by humans so that they provide specific guidance in specific situations. To determine how to put the laws into practice in a particular situation, one must use practical reasoning. St. Thomas Aquinas: Author of Summa Theologica. Summa is a sort of systematic working out of a theological view of the world, which asks what sort of world the God has created. Aquinas was highly influenced by Aristotle. The following 4 sections are summarized from Summa Theologica: Aquinas’s definition of law : he was concerned mainly with the nature of laws rather than the nature of a legal system (how laws operate), unlike Finnis who was concerned with both equally. He says that law is an ordinance of reason for the common good, made by the one that cares about the community and made public so that law’s requirements are known. Natural law: Aquinas believed that God gave humans certain characteristics and the defining one is our possession of reason and rationality. We tend naturally to do good things thus, mirroring God as supremely rational. Using our God-given powers we can see what things are self-evidently good and worth pursuing. The claim that what is good is to be pursued and what is bad is to be avoided is self-evidently good. When we pursue self-evidently good things and make laws for the common good we are using ‘right reason” and are participating in God’s rational ordering of the world. So the natural law is in each person that applies reason to self evident things. Real and defective laws: Aquinas says that there can be multiple ways to solve a problem and different cultures may impose different limits on behavior, so there is not only one right way of making laws. The important point is that the means of solving a problem are accepted by rational people. Aq. divides positive or man-made laws into real and defective laws. Real laws are reasonable standards of conducting in service of the common good. They are ‘just’ because they meet the requirements of justice. However, there are also laws that do not meet the requirements of natural laws, are unjust or not promulgated properly. These laws are justifiably disobeyed. How laws bind their subjects : Law, lex in Latin, means “to bind”. Today many of us feel the restricting force of laws and many obey laws only to avoid being arrested or sued. Aquinas argues that the police should be the last resort and the least important reason to obey laws. A reasonable person should realize that laws are reasonable means of achieving worthwhile goals like the common good. Laws should also be obeyed because they are a part of god’s will and thus police is the tool of last resort. Finnis and natural law as practical reasonableness Finnis says that understanding the purpose of laws is essential in the philosophy of laws and to achieve this, a theorist must understand, stand inside the law and participate in achieving the purpose of laws. Unlike Aquinas who relied on theology, Finnis said that there are certain basic goods things for humans that are rationally self-evident. 7 basic forms of goods are: life, knowledge, play, aesthetic experience, friendship, practical reasonableness, and religion. To achieve these goods, moral and legal rules must be enacted that meet the standards of practical reasonableness. Practical reasonableness is about rationality balancing our pursuit of different goods while respecting the basic value of each of those goods for individuals and the society. Pr. Re. requires fairness and foresight. Ex: if we treat persons differently, we should have good reasons, or we can’t sacrifice certain basic goods to achieve consequences that promote other basic goods. Finnis argues that morality and law are the result of pr. Re. and laws that don’t aim the common good and don’t meet pr. Re. requirements should be rejected. However, not all laws that lack moral justifications should be disobeyed because this damages the rule of law. St. Thomas Aquinas Aquinas presents 4 points of inquiry pertaining to laws: 1. Whether law is something pertaining to reason? 2. Whether the law is always something directed to the common good? 3. Whether the reason of any man is competent to make laws? 4. Is promulgation essential to a law? 1: law is a rule and measure of human acts that induces or restrains people to act in certain ways. Since the rule and measure of human acts is the reason (which is the first principle of human acts) it can be concluded that law is something pertaining to reason. 2: reason, as the rule and measure of human acts, has happiness as its last end. Since law pertains to reason, it must consider properly the relationship to happiness and since one man is a part of a perfect community, the law should consider the relationship to universal happiness. Not every law based on reason is a just law. To be just, a law should be enacted for no private good but for the common benefit of citizens. Aristotle says that legal matters are just when they adapted to produce and preserve happiness and its part for the body politic (state). 3: a law regards first and foremost the order to the common good; therefore, it should belong either to the whole people or to someone who has care of the whole people that are consequently affected by the law. 4: Aquinas asserts that laws are established when they are promulgated. A law, as a rule and measure, is imposed when it is applied, so in order to obtain its binding force, the law must be applied to the men who have to be ruled by it. The application is made by notifying the law to them by promulgation. Aquinas considered various kinds of laws in 6 articles with these points of inquiry: Whether there is an eternal law? Whether there is a natural law? Human Law? Divine law? One divine law, or several? Whether there is an eternal law? The law is the Supreme Reason and cannot be understood to be otherwise than unchangeable and eternal. Aquinas says that the world is rules by divine providence and universe is governed by divine reason . a law is a a dictate of practical reason emanating from the ruler that governs the community. Since the law is based on reason and Divine Reason is eternal, such laws must be called eternal too. Whether there is in us a natural law? A law can be in a person in 2 ways: as in him that rules and measures or as in one that is ruled and measured. Since all things subject to divine providence are ruled by eternal law, it is evident that all things partake something from eternal laws and they understand what is good and what is evil. Natural law is nothing but the rational creature’s participation of the eternal law and all rational creatures shall have natural law in them. That is presented in an intellectual and rational manner. Whether there is a human law ? There are two kinds of law: eternal law and human law. Each one of these proceeds from principles to conclusions, the eternal law from practical reason and human law from speculative reason. Speculative reason is knowledge which is not imparted to us by nature, but gained by effort in order to arrive at particular conclusions on certain matters. These particular conclusions (determinations) are called human laws. Humans can not have a perfect participation of Divine Reason and speculative reason allows them to participate naturally in Divine Wisdom. Question 91, Third article: Whether there is a human law? There IS NOT a human law There IS a human law The natural law suffices for the ordering of all human affairs. 1. Man has a natural participation of the eternal law, according to certain general principles, but not as regards the particular determinations of individual cases, which are, however, contained in the eternal law. A law bears the character of a measure; human reason is not a measure of things but vice versa 2. The natural reason is the rule of measure, although it is not the measure of things that are from nature. The thoughts of mortal men are fearful and our counsels uncertain; Therefore, no law can emanate from human reason 3. The practical reason is concerned with practical matters, which are singular and contingent: but not with necessary things, with which the speculative reason is concerned. Question 94, First Article: Whether the Natural Law is a habit? It IS It IS NOT 1. There are three things in the soul: power, habit, and passion. Natural law is a habit. 1. There are other things in the soul besides these three (power, habit, passion), there are acts. 2. The conscience (synderesis) is the law of our mind. Conscience is a habit, so natural law is a habit. 2. Synderesis is said to be the law of our mind, because it is a habit containing the precepts of natural law, which are the first principles of human actions. 3. Man’s reason does not always think about natural law; so, natural law is a habit. 3. This argument proves that the natural law is held habitually; and this is granted. Augustine says that a habit is that whereby something is done when necessary. But such is not the natural law: since it is in infants and in the damned who cannot act by it. Therefore the natural law is not a habit. Question 94, Second Article: Whether the natural law contains several precepts, or one only? Many One 1. Law is a kind of precept. If there were many precepts of the natural law, it would follow that there are also many natural laws. 1. All these precepts of the law of nature have the character of one natural law. 2. The natural law is consequent to human nature. But human nature, as a whole, is only one; though, as to its parts, it is manifold. 2. The precepts of natural law are many in themselves but are based on one common foundation. 3. Law is something pertaining to reason; reason is but one in man. 3. Although reason is one in itself, yet it directs all things regarding man; so that whatever can be ruled by reason, is contained under the law of reason. Question 94, Fourth Article: Whether the natural law is the same in all men? It IS NOT It IS 1. “The natural law is that which is contained in the Law and the Gospel” (Gratian); all do not obey the Gospel. Therefore, the natural law is not the same in all men. 1. Gratian, after saying that “the natural law is that which is contained in the Law and the Gospel,” adds at once, by way of example, “by which everyone is commanded to do: to others as he would be done by.” 2. “Things which are according to the law are said to be just”(a Philosopher); nothing is so universally just as not to be subject to change in regard to some men. Therefore even the natural law is not the same in all men. 2. The saying of the Philosopher is to be understood of things that are naturally just, not as general principles, but as conclusions drawn from them. 3. To the natural law belongs everything to which a man is inclined according to his nature. Different men are naturally inclined to different things. Therefore there is not one natural law for all. It is universally right for all men, that all their inclinations should be directed according to reason. Truth is the same for all, but is not equally known to all.
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Read More »Question 94, Fifth Article: Whether the natural law can be changed? CAN CANNOT 1. “He wished the law of the letter to be written, in order to correct the law of nature” (Ecclus, xvii.9). But that which is corrected is changed. 1. The written law is said to be given for the correction of the natural law, either because it supplies what was wanting to the natural law; or because perversion stand in need of correction. 2. The slaying of the innocent, adultery, and theft are against natural law. But we find these things changed by God. 2. Whatever is taken by the command of God, is not taken against the will of its owner. Whetever is commanded by God is right; but also in natural things, whateveris done by God, is in some way, natural. 3. The possession of all things in common, and universal freedom, are matters of natural law. But these things are seen to be changed by human laws. 3.The possession of all things in common and universal freedom are said to be of the natural law. The law of nature was not changed in this respect. Decretals (Dist. V): The natural law dates from the creation of the rational creature. It does not vary according to time, but remains unchangeable. Question 94, Sixth article: Whether the law of nature can be abolished from the heart of men? CAN CAN NOT 1. “The law of righteousness, which sin had blotted out, is graven on the heart of man when he is restored by grace. But the law of righteousness is the law of nature. Therefore the law of nature can be blotted out. 1. Sin blots out the law of nature in particular cases, not universally. 2. The law of grace is more efficacious than the law of nature. But the law of grace is blotted out by sin. Much more therefore can the law of nature be blotted out. 2. Although grace is more efficacious than nature, yet nature is more essential to man. 3. That which is established by law is made just. But many things are enacted by men, which are contrary to the law of nature. 3. This argument is true of the secondary precepts of the natural law, against which some legislators have framed certain enactments which are unjust. Question 95, Second Article: Whether every human law is derived from the natural law? IS NOT IT IS 1. “The legal just is that which originally was a matter of indifference” (Ethic V.7). But those things which arise from the natural law are not matters of indifference. Therefore the enactments of human laws are not derived from the natural law. 1. The Philosopher is speaking of those enactments which are by way of determination or specification of the precepts of the natural law. 2. Those things which flow as conclusions from the general principles of the natural law belong to the natural law. 2. This argument avails for those things that are derived from the natural law, by way of conclusions. 3. The law of nature is the same for all; since the Philosopher says (Ethic V.7) that “the natural just is that which is equally valid everywhere.” 3. The general principles of the national law cannot be applied to all men in the same way on account of the great variety of human affairs. 4. It is not possible to give the reason for all the legal enactments of the law-givers. 4. These words refer to decisions of rulers in determining particular points of the natural law.
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Read More »The programme separating off from jurisprudence all questions or assumptions about the moral significance of law in not consistently carried through by those who propose it. The answer to the question is: the stipulations of those in authority have presumptive obligatory force only because of what is needed if the common good is to be secured and realized. The ruler has no right to be obeyed; but he has the authority to give directions and make laws that are morally obligatory and that he has the responsibility of enforcing. He has this authority for the sake of the common good. Therefore, if he uses his authority to make stipulations against the common good, or against any of the basic principles of practical reasonableness, those stipulations altogether lack the authority they would otherwise have by virtue of being his. Stipulations made for partisan advantage, or in excess of legally defined authority, or imposing inequitable burdens on their subjects, or directing the doing of things that should never be done, simply fail, of themselves, to create any moral obligation whatever. Eshte me rendsi qekjo. LEGAL POSITIVISM Legal Positivism claims that there is no relationship between laws and morality. It also claims that there is no relationship between legal systems and morality. There is a distinction between what is and what is ought to be (Austin). ”WHAT IS” is the law. - Law is just a social fact made by the sovereign who rules the state, and obeying laws created by the sovereign is profitable to the people because they receive protection from the state, although they trade-off their freedom for security. Works of: H.L.A Hart “The Concept of Law” -XVIII John Austin “The Province of Jurisprudence Determined” –XX Why Separate Law and Morality? When defending Legal Positivism (separating law and morality) it is important to recognize the social context. Most of Hart’s work on Legal Positivism was done after World War II, and from its aftermath Hart derived the thought that laws are not tied to morality. Hitler made laws which were not morally just, but they were still laws. Nazis accused of crimes at Nuremberg trial claimed that they were just following orders, and they could not be held responsible for this. Laws should be separated from morally because of the principle of clarity. A clear understanding of the nature of law can be very useful to those who wish to reform law rationally and efficiently. Contrary to the claim of Aquinas who says, “An unjust law is not a law at all,” Hart claims that unjust laws are still laws (they exist),and they are made for different purposes, good and bad. According to Hart, laws should be described first and then evaluated, meaning that they should be seen from an objective perspective first, and then from a subjective perspective (with value added to the law). The Idea of Rules The Legal System is made up of two types of rules: Primary Rules - which make certain conduct non-optional. Certain rules MUST be followed. Secondary Rules- rules that instruct people on what can be done to primary rules (introduction, change, elimination) and how to do it. “Rule of Recognition” or “Master Rule”- the most important rule of secondary rules which shows the characteristics of valid rules of the system. The rules recognized by judges and other officials as the rules of the system. It can be written in a document, such as a constitution, and officials should obey and apply this rule themselves. Primary and Secondary Rules are the core of Hart’s understanding of law. People’s approach to rules “Internal point of view” to the rules are those who accept the rules. They think that the rule exist because of a good reason . “External point of view” are those who don’t accept the rules. They think that rules are made for others not for them. Legal Obligation and Coercion Austin: Laws are orders backed by threats. (Coercion-“gunman situation”) Hart: Orders and threats are only part of an accurate description of what is said to be the law and legal obligation. Some laws are not followed simply because they are backed by threats, but because they provide convenience and safety for people (i.e.: driving on the right track); Following these types of laws is common sense. According to Hart, so long as the goal of a law is thought to be important, it doesn’t matter to the law’s status as a law whether the goal is morally good, bad, or indifferent. People are not held accountable about things that they are coerced to do (gunman situation: Nuremberg trial), but they can be held accountable for the things they are obliged to do (obey laws). To have an obligation is not simply to follow orders backed by threats, but to be subject to a social situation in which a rule is generally accepted as providing a strong reason for acting in a certain way. The Idea of Laws and the Idea of Adjudication According to Legal Positivism, judges play an extremely important role in development of the law. According to Hart, much of the time judges interpret and apply laws whose meaning is reasonably clear. Meanings of law: Core meanings - reasonably clear meanings of law, and generally acceptable Penumbral meanings- difficult cases and unclear meanings of law. In such cases an argument is needed to demonstrate that it is appropriate to interpret the term or rule in a particular way. Discretion- is used when judges go outside the accepted meaning of legal terms to reach an interpretation of law with which a dispute can be resolved. In these cases, judges interpret the law in a way which gives a new or extended meaning to the law Although judges relate discretionary decisions to their moral values, this does not need to happen necessarily. These discretionary decisions have to agree with the general social policy rather than be morally appropriate.
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