Natural law marks the covenant between God and humanity
- It is universal and immutable, but it also requires intentionality: natural law forbids the unjust taking of life, not simply all taking of life.
- In this respect, neither God nor man can violate natural law.
- However, God may 'dispense' with natural law when there is a conflict of moral interests. But these are very context-dependent.
- But if positive law appears to contradict natural law, then positive law is wrong.
Three parts to Natural Law
- Discriminating norm = Its basis in human nature (scientific law)
- Binding norm = Conscience as God's voice in 'man'
- Manifesting norm = Its expression in human reason (positive law)
Why doesn't Natural Law = All Law?
- Plato's Problems:
- Human soul and society are internally divided. Justice aims for harmony.
- Reason will not necessarily triumph unless the irrational is subdued
- This may justify the use of force and lies: different law for elite and masses
- Reason left to its own devices can lead to instability: e.g. Socrates
- Aristotle's Problems:
- Natural law is underspecified, since people need to find their 'golden mean'
- The requires citizen education beyond simple respect for the law
- Also substantive justice is usually situation-dependent
- The two forms of substantive justice are distributive and commutative ('rectificatory')
Christian Political Theology
- The need to have revelation complement reason in natural law comes from the inscrutability of natural disasters, including the hardships faced by Christians.
- Even if one cannot justify disasters, one can believe they are meant for the better: theodicy ('divine justice').
- However, this does not apply to positive laws or political acts that lead to human misery.
- But even here the authority of a priest or some other Christian authority is needed before rebellion is licensed.
- In the 16th c., Richard Hooker called for a 'divine right of kings' that circumvented natural law and its clerical representatives: unified state in which God directly intervened in secular authority.
- The 17th c. Puritans (Richard Baxter) democratized this sentiment into a 'holy commonwealth' or 'republic of saints', the basis of the modern idea that 'the people are sovereign'.
Recasting Natural Law in a Secular World
- H.L.A. Hart ('positivism') opposed natural law in the 1950s by radically separating law and morals.
- The only justice of concern to the law is procedural fidelity. From this standpoint, Nazi law is just as 'legitimate' as British law
- Lon Fuller opposed Hart by arguing that 'legitimacy' implies a value basis for being faithful to the law in the first place, i.e. ideals of social order
- Lord Devlin took Fuller's point a step further by saying that the law should morally reform society: e.g. discourage homosexuality
- Hart responded here that morality is normally private, unless someone else is harmed.
- John Finnis has most recently revived natural law as providing an overarching meaning to our everyday laws and customs that might otherwise be lacking
- Affinities with Durkheim and communitarians
- But is this view ultimately oppressive of minorities and dissenters?
NEXT WEEK'S SEMINAR TOPIC:
Agree or Disagree? Kantianism is little more than natural law theory without the religious justification.