Proposition: ‘The law cannot be moral without Natural Law,
Natural Law cannot be justified without
God, therefore law requires God for its legitimacy’.
Seminar 1 (10-11)
‘The law cannot be moral without Natural Law’ – Natural Law is the rational, universal higher law that can be deduced/discovered by all. It is in its very understanding ‘moral’, and therefore the law cannot be moral without it.
Plato – saw positive law as just a shadow of real justice.
Cicero – ‘law is the highest reason… inherent in nature… which enjoins what ought to be done and forbids the opposite.’
Could be argued against this proposition that Natural Law suffers from the naturalistic fallacy that you cannot derive an ‘ought’ from an ‘is’. This would suggest that the law can be, and is, moral without NL.
However, if we take the substantive natural law approach (such as Finnis’) we would maintain that ‘natural law derives its normative conclusions… from a reflective grasp of what is self-evidently good for men and all living things’. Therefore, law requires natural law if it is to be regarded as moral.
‘Natural Law cannot be justified without God’ –
Any idea of universal, immutable laws must link to a universal, immutable creator. (this does not necessarily have to be the Christian God, but any formulation of higher power that we accept to provide us with Natural Law).
Cicero maintained that ‘reason did not first become law when it was written down, but rather when it came into being. And it came into being at the same time as the divine mind’.
It logically concludes from this that law requires God for its legitimacy.
That God is required Grotius – ‘Natural law, the higher law against which the actions of nations law – makers and citizens could be judged, did not require the existence of God for its validity’.
Dworkin – believes that the laws/systems of rules is a view to enhance the future – though not necessarily moral. However, legal principles that date back into the past are morally based and may be used to decide the laws, but are based on cumulating substantive law.
That law is required to be moral at all Austin – command theory of law – law consists of commands issued by the sovereign. – In other words, not an issue of whether legitimacy stems from moral background or not. Can see this also in
Weber – formalism – law is legitimate through coercion; and
Marx – if we champion an instrumental Marxist approach – that law and indeed religion are purposefully used by the state.
Althusser – religion = ideological apparatus. Law = repressive apparatus.
- Can different faiths’ God’s co-exist as long as the essence of our understanding (i.e. our formulation of Natural Law) is the same?
- We see this being particularly pertinent in relation to modern theories of international law – and the legitimacy of laws that contravene such formal law as the European Convention of Human Rights (and its English derivative, Human Rights Act 1998).
- Can we seriously accept this (illogical?) syllogism? (Russell might have to say something on this)
Seminar 2 (11-12)
Richard Norrie, General Secretary