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Modern Natural law theory Gustav Radbruch 1878- 1949 Finnis 1940 -

Lon Fuller 1902-1978

Herbert Hart 1907-1992

John

• Revival of classical natural law • The 19th century was dominated by positivist thought. Following the horrors of the Second World War and the Nazi Holocaust, there was a revival of interest in Natural Law in the 20th century.

• Gustav Radbruch 1878- 1949 • • • • • •

Radbruch was a legal positivist before 1933 Many people partially blame the older German legal tradition of legal positivism for the ease with which Hitler obtained power in an outwardly ‘legal’ manner, rather than by means of a coup. Arguably, the shift to a concept of natural law ought to act as a safeguard against dictatorship, State power and the disregard of civil rights. Radbruch’s idea of law is defined through justice, utility and certainty. Upon this notion was based the Radbruch formula. The concept of law, for Radbruch, is ‘nothing other than the given fact, which has the sense to serve the idea of law.’ In sum, Radbruch’s formula argues that where statutory law is incompatible with the requirements of justice ‘to an intolerable degree’, it must be disregarded by a judge in favour of the justice principle. Question – can ‘justice’ truly be defined upon the consequences of an action?

Modern natural lawyers inevitably confront the two major challenges against Natural Law: Moral scepticism and Naturalistic fallacy Moral sceptism • Positivists such as Kelsen argued that universal moral standards in fact do not exist, or if they do, they are not discoverable by human reason. Kelsen was a moral relativist.

• Emotivists, on the other hand, argue that moral standards are nothing more than expressions of our emotional attitudes. This argument is against what the Realists (that moral standards exist) and Cognitivists (that such standards are discoverable by reason) believe. Naturalistic fallacy • This is the argument of David Hume that one cannot derive an “ought” from an “is”. GE Moore called this fallacy the ‘naturalistic fallacy’ • Thus it is fallacious (though unfortunately not uncommon) for people to reason like this: • ‘It is a mistaken belief to argue that our human condition (the state of nature) means that one ought to behave in and such way.’ For example, the following statement is fallacious: ‘Because of their biology, women can bear children; therefore, women ought to bear children, and it is morally good that they do so, and immoral for them to avoid having children.’ It is fallacious to reason from a description of women (that they have the capacity to bear children) to the moral principle that they ought to bear children. Similarly, just because a theorist has a particular view on

the human condition (eg Grotius), it does not follow that one ought to act in a certain moral way. • Lon Fuller (1902-1978) • Lon Fuller chose to sidestep the challenges of moral scepticism and the naturalistic fallacy, instead he sought to employ Reason in the procedural aspect of law-making. • He openly admits that he was not seeking to define the substantive moral content of law like traditional natural lawyers. • His basis was in Aristotle’s “principles of social order”. To him, the most fundamental tenet of Natural Law is an affirmation of the role of reason in legal ordering. • For Fuller, the connection between law and morality is a necessary one.

• The Morality of Law (1969)

In “The Morality of Law” (1969), Fuller begins by describing “Rex”, who “came to the throne with the zeal of a reformer”. He resolved to be a law-maker but failed miserably because he failed to adhere to 8 Directions of Moral Law-Making:

Law must be sufficiently general (i.e. there must be rules) • Law must be publicly promulgated (i.e. published) • Law must be sufficiently prospective • Law must be clear and intelligible • Law must be free of contradictions • Law must be sufficiently constant over time so that people can plan their affairs accordingly • Law must not require the impossible • Law must be administered in a manner that is sufficiently congruent with their wording so that people can abide by them Fuller calls this the “inner or internal morality of law”. What if laws were made that violates the directions above? “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 it not properly called a legal system at all, except perhaps in the Pickwickian sense in which a void contract can still be said to be one kind of contract.” (Fuller) In other words, law-making that does not adhere to the 8 directions effectively means the failure or nullity of the legal system entirely! •

• Is this true? Let’s take Fuller’s point on law being ‘prospective’ – it must look forward, it cannot be applied retrospectively. • Burmah Oil v Lord Advocate [1965] where the House of Lords held, by majority, that although the damage was lawful, it was the equivalent of requisitioning the property. Any act of requisition was done for the good of the public, at the expense of the individual proprietor, and for that reason, the proprietor should be compensated from public funds. • Following the decision, Parliament passes the War Damages Act 1965, which retrospectively exempts the Crown from liability in respect of damage to, or destruction of, property caused by acts lawfully done by the Crown during, or in contemplation of the outbreak of, a war in which it is engaged. • Did the retrospectivity of the Act lead to the breakdown of the English legal system? Was the Act not a valid one that was binding?

• Fuller later downgrades the conditions to “kinds of legal excellence toward which a system of rules may strive”. There is an aspiration of a utopia, but this is “not actually a useful target for guiding impulse toward legality”. In short, the existence of a legal system, for Fuller, is a matter of degree!

• The reason for this is because Fuller examined the legal system from the perspective of “reciprocity”. “As the sociologist Simmel has observed, there is a kind of reciprocity between government and the citizen with respect to the observance of rules. Government says to the citizen in effect, “These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct.” When this bond of reciprocity is finally and completely ruptured by government, nothing is left on which to ground the citizen’s duty to observe the rules.”

• The problem with such a statement is that Fuller seems to be equating effectiveness with legal validity. This is precisely where Hart criticises Fuller, saying that the latter confuses principles of effectiveness for principles of morality

• Against Fuller, Hart insisted that the identification of a directive as law indicated nothing about the moral

authority of that directive and thus nothing about whether that directive should be obeyed. • Consequently, claimed Hart, official and citizen disobedience to immoral directives would be facilitated not by pretending that such directives failed to qualify as legal just because of their perceived iniquity, but rather by internalising the fundamental positivist insight that law and morality were conceptually distinct. • Because of this conceptual distinction between law and morality, Hart argued, a directive's legality said nothing about its morality.

• Fuller’s chief contribution to jurisprudence was directed to process and procedure. For this reason, Fuller is often credited with devising a ‘procedural’ natural law theory, in that he does not focus on the substantive content of legal rules and assess them as to whether they are moral or not, but rather concerns himself with the requirements of just law-making and administration. Problem: Is procedural natural law actually a natural law theory at all?

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Herbert Hart

• Hart claims to be and is widely regarded as a ‘positivist’ • He separates law from morality, however then goes on to state in Chapter 9 of CoL that every legal system must have a ‘minimum content of natural law’ • This minimum content comprises those necessary norms of social interaction which, while reflecting moral or “natural law” considerations, are necessary for any system of law to be minimally effective as a legal system (i.e. societies are not “suicide clubs”). • Hart constructed the minimum content on the grounds of what he identified as “truisms concerning human nature”: • Human vulnerability (explains why major crimes of violence are prohibited) • Approximate equality (very Hobbesian concept that mutual forbearance/compromise necessary because no one can ensure permanent dominance by individual effort/strength)

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Limited altruism (makes law necessary and compliance to law possible) Limited resources (necessities not infinitely available = some system of property entitlement and distribution necessary) Limited understanding and strength of will (necessity of sanctions – but also warns that sanctions are not the source of the obligation but merely a defence against deviance)

• Wayne Morrison: “The truisms which lead to Hart’s ‘minimum content of natural law’ can be classified as biological, behavioural and environmental. (Jurisprudence: from the Greeks to Post-Modernity) • Hart lists five, but only two of these lead to any particular content in morals; the other three lead to various other features of morality which may be called ‘formal’ for the present. The two which lead to a specific content are human vulnerability and limited resources.” • Hart also very clearly explains that the “minimum content of natural law” does not go towards deciding on the VALIDITY of laws; merely the EFFECTIVENESS of a legal system. It is actually very minimal and based on the social-contractarianism of Thomas Hobbes.

• In other words, Hart’s minimum content rests on the minimum purpose of SURVIVAL (i.e. don’t even start talking about good/bad, right/wrong if you’re dead!!!).

• John Finnis • John Finnis, rescued the natural law tradition from many misconceptions that had grown up over the centuries, such as the slogan lex injusta non est lex, (‘an unjust law is no law at all’) as not representing the natural law tradition at all. • He argues that an unjust/immoral law is not law in the “central”/”focal” sense of the word law as that which facilitates the furtherance of the “common good”. It is only law in a “peripheral” sense (like laws made by the Nazi regime). But nonetheless is still law. • They are still valid laws but of a lesser sort. • Seven goods Finnis identified 7 “human goods” which are self-evident (not needing to be demonstrated or explained; obvious) to human reason: • Life • Knowledge • Play • Friendship

• Religion • Practical Reasonableness • Aesthetic Experience (enjoyment of nature or art) The integration into life and ordering of these basic goods over a lifetime is an important aspect of human wellbeing. By arguing that they are self-evident, Finnis avoids the criticism that he is deriving “oughts” from “is”.

• The point of law to Finnis • When many human beings exist in a society and try to pursue the above goods, there will be inevitable conflicts and co-ordination problems which only practical authority/law can resolve. • The point/function of the law is to facilitate the common good as connected to the realisation of the self-evident goods in human life by providing authoritative rules that solve the conflicts and coordination problems. • Finnis says that Aquinas understood the State as the type of community fitted to securing goods with impartiality and coercive force.

• Aquinas also says that governments are not above the law but are appropriately regulated and limited by law. • From this, Finnis concludes that the morality of law can be seen in that: • the government is for the common good; and • nobody has any “natural right to govern”.

• To Finnis, the central or focal case of law = a human institution designed to further the common good. • This is criticised by Hart (“Essays in Jurisprudence and Philosophy” (1983)) as a distortion of reality: Hart reminds Finnis of the horrors of human history in which law has been put to evil uses rather than to further the common good all the time. Hart says that Finnis distorts the law as much as Marxists who hold that the central case for law is to uphold the interests of a dominant economic class.

• Leslie Green (1988): criticises the “common good” argument as being unrealistic. • Primarily, how do societies really determine what is the “common good”?

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In the reality of our conflict-ridden societies, there is too much observable conflict to identify the “common good”. In fact, there is no “common good” – merely, winners and losers in social conflicts between individuals and classes over power, status and other goods.

In essence, Green argues that Finnis is too utopian – does not take into account the many real conflicts that beset all modern democracies. The pursuit of the “common good” by government through law is impinged upon by social, political and economic factors than Natural law would have us believe.

• MacCormick points out the Aristotelian teleological sense of the goods in that they are a catalogue of forms of “human flourishing”. • He accepts Finnis’ argument that they are “selfevident” so there’s no need to prove them or derive them from other naturalistic/rationalistic arguments. • But he then asks – “What has it all to do with law”?

• Possible answer - “... that central idea of Thomist political philosophy, the common good. A practically reasonable man recognizes that human goods are realizable only in human communities, the better so the more communities achieve reasonable freedom for all their members and the more they approximate to justice.”

• Summary • Radbruch – the idea of law is defined through justice, utility and certainty. Upon this notion was based the Radbruch formula. • Question – is defining natural law principles by means of its consequences sufficient?

• Fuller – if a legal system does not take in to account one of his eight directions, the system fails. • Question – is this true in every case? • Question – isn’t Fuller merely describing the effectiveness of a legal system, rather than the moral worth of a law?

• Hart – though a ‘positivist’, a legal system must take in to account his five minimum contents. • Question – aren’t these minimum contents of natural law merely talking about principles of survival, rather than any moral content?

• Finnis – builds upon Aquinas . He lists 7 ‘self-evident’ human goods. A legal system must build from these goods, and then strive towards the ‘common good’.

• Question - What do these self-evident goods have to do with law? • Question – what is the common good? Does it really exist? Does history not show that legal systems do not always pursue the common good?...