SEMINAR THREE

 

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)

 

Tom Stanford, General Secretary

 


Agree

1st statement
‘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. 
  
2nd statement
‘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’.
Augustine

It logically concludes from this that law requires God for its legitimacy.

Disagree

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.

Issues raised
- 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

 

  1. Law cannot be natural without natural law. Morality is equal to natural law. Morality is a metaphysical conception that provides the foundation for the law – it makes the law worth obeying even if no one is watching or forcing us to obey
  2. Morality is a personal thing or is there an external and objective morality that can be obtained through reason?
  3. The proposition that all societies have basic, shared moral standards. That is to say a natural law exists. (e.g. many different strands of Christianity but they all have some basic shared beliefs). All religions have common building blocks. All say killing is wrong.
  4.  Natural Law is what is held by the majority of people. What people perceive to be natural, often reflects their social education.
  5. During the Spanish Inquisition, many atrocities were committed and yet within the prevailing ideology of the time, this was regarded as legitimate.
  6. Can natural law change? Ronald Dworkin keeps alive the idea of natural law in judicial discretion – i.e. the right decision in a hard case invokes the same principles but in changing settings.
  7. Jean Calvin taught that whether or not you went to Heaven or Hell was pre-determined (the doctrine of double pre-destination). There is no natural law under these circumstances as people do good or bad deeds due to their natural characteristics, they do not make choices of morality.
  8. Natural law works with priests and judges- mediators. Law is obtained via a medium. Thus there is room for discretion.
  9. How do we come together? How are societies conceived? There must be some minimum agreement. Natural law is the way to do this. Religion only exists as a means to provide a natural law which will serve the purpose of giving a fledgling society a code to follow.
  10. Much of international law and human rights law is based on natural law. The doctrine of human rights is deliberately simplistic. It falls apart intentionally to allow for unforeseen circumstances.
  11. Natural law- divine, metaphysical or social?