I.                    Natural Law as a Concept Both In and Out of Theology

n       Ideas relating to 'natural law' predate Christianity. In the Greco-Roman law, it was invoked in conflicts between what a ruler or judge decrees and what the dictates of conscience would seem to require

n       Sometimes this 'natural law' was associated with family loyalties, if the gods were associated with venerable ancestors (later depersonalised as ‘tradition’): e.g. Antigone in the Greek tragedy who is prohibited from burying brother who the state deems a traitor

n       In the Christian era, natural law becomes more rationalized and is invoked for potentially more radical purposes: i.e. it is not merely an instinctive response but a judgement as to whether the ruler or judge is acting appropriately

n       Medieval legal academics invoked natural law to instruct and influence secular rulers

n       Failure to conform to natural law could ultimately be grounds for disobedience and even revolution, if it would cause less harm than continuing to obey an unnatural positive law

n       With the secularization of Christendom (i.e. the rise of the nation-state), natural law metamorphosed into individual rights

n       This move retained the role of individual conscience that was always crucial to natural law judgements

n       Today natural law theory is most often invoked in attempts to harmonize and unify different legal systems, e.g. the UN and EU, where not surprisingly 'human rights' becomes a significant covering notion

n       From Berman's standpoint, this is a secular re-enactment of the origin of the Western legal tradition

n       What about Islam? The historic movement in this case was the failed separation of the secular from sacred control, rather than the other way around


II.                  The Roots of the Western Legal Tradition in Theology

n       Harold Berman (Law and Revolution, 1983) argued that law became an autonomous science in the 12th c. as part of the effort to release the Catholic clergy (esp. the papacy) from being under the control of secular rulers

n       The distinctive belief about Western legal science, as promoted in the early universities, is that it was an ongoing project to integrate the legacy of Judaeo-Christian, Greek and Roman wisdom into a universal order for Christendom that would realize human destiny

n       This reflects the fact that the Roman Empire had become disordered and law was basically being administered at the local level according to custom or the whim of the ruler

n       From that standpoint, appeals to "natural law" and "divine law" aimed to find some textual precedents for overarching principles that seemed to be operative in best legal practice that could also be used to decide cases when there are conflicting precedents

n       This reflects the 'subsidiarization' of the law in the Western tradition: i.e. the law permits the existence of subordinate and sometimes cross-cutting jurisdictions (see Larry Siedentrop, Democracy in Europe)

n       In this respect, the European Constitution may be seen as an attempt to reinvent a geographically contained ‘natural law’ that, according to its more enthusiastic supporters (e.g. Juergen Habermas), may provide the basis for an international order.

n       The belief in "natural law" continues to underwrite attempts by such non-theological jurists, e.g. Lon Fuller and Ronald Dworkin, to use resources from the past to forge future policy under the rubric of "moral principle"

n       One immediate consequence of the new progressive legal science of the 12th c. was the recognition that 'institutions' needed to be created to make the performance of social functions legally explicit and protected (in perpetuity).

n       This went beyond the distinction between 'gens' (family) and 'societas' (temporary alliances) to include 'universitas' (corporations, including churches, states and, of course, universities)

n       The law itself became an institution that maintained the collective values of the society; hence, crimes had to be formally identified and punished to satisfy some abstract sense of justice that transcends immediate interests, including keeping the peace -- e.g. it was not enough simply to do penance or even provide some compensation


III.                Positivist Attacks on Natural Law Theory

n       English jurisprudence from Austin and Bentham to Hart has been the strongest anti-natural law tradition

n       Much of this has to do with the disproportionate control that unelected clerics and judges had in both Parliament and local parishes.

n       For the English positivists, "natural law" was an ideological smokescreen (Bentham said human rights were "nonsense on stilts") for the worst features of common law: i.e. the arbitrary imposition of prejudice

n       In fact, the positivist view that the validity of a legal system simply rests with the power of the sovereign who can command obedience was based on this demystified view of natural law, which the positivists then simply wanted to formalize so that everyone knew what they were being forced to do.


IV.                Natural Law responses to Positivism

n       Lon Fuller raised the interesting argument that "legality" is a fundamental value of the law that must be reciprocally maintained: i.e. both lawmakers and citizens must be able to uphold the law in the same sense (i.e. they believe they are laws worth following)

n       In contrast, positivists justify the law asymmetrically, since citizens don't need to believe the laws are good, they are simply forced to follow them.

n       Positivists respond that this is too a high a normative standard for the law to meet: i.e. not only must you obey Big Brother, but you must love him!

n       But natural law theorists observe that people ‘naturally’ follow the laws even when no one is watching, and in fact positive law captures only a fraction of all the norms that govern social life – so this must mean that there is a common understanding of legality that transcends the force to administer legislation

n       Ronald Dworkin argues that natural law is "always already" in play, as evidenced by how judges justify their decisions: there is a dual look backward to fundamental principles and forward to policy consequences, and not simply a mechanical subsumption of a case under a rule.

n       Positivists respond that Dworkin's a legal theory captures (at most) 'hard cases' but does not capture ordinary cases, which are pretty much matters of judges matching cases to the most obvious legal precedents

n       But natural law theorists observe that the US Constitution has managed to hold together as a framework for radically changing legislation over the centuries (esp. incorporating many more kinds of people and situations than the Founding Fathers anticipated). Not surprisingly, this framework has been tied to the nation’s sustaining Christian ideology (despite the constitutional prohibition of a state-founded church).

n       Among the more interesting recent attempts to justify the metaphysics of natural law has been Lloyd Weinrib, who follows Aquinas in seeing the doctrine as a mark of our humanity, as it permits the exercise of free will in a world otherwise ruled by law

n       This raises the point that, even among Christians, natural law theory does not always hold sway. Only Christians who believe that the law can mediate God’s wishes – i.e. the judge adopts the position of God whose free will decides open situations. This is much more common in Catholic than Protestant legal systems. The latter tend to stress the radical difference between God and humans which does not permit the latter access to the former’s mind. 


Postscript on the legal status of religion in a secular society

n       The normative functions of the law:

o        constitutive: brings entities into being (socius)

o        mediative: gives recognition to already existing entity (autonomize)

o        regulative: separates the governors from the governed (i.e. clear ideal/real distinction)

n       Religion as bearer of natural law was typically regulative, but the corporate status of religion is typically more mediative than constitutive: i.e. religion already exists as social movement before acquiring legal recognition (Carl Zollman)

n       In what sense are religions ‘not-for-profit’ corporations (the same question can be asked of universities too)? Two answers:

o        mutual benefit: often UK line, implies that religions benefit only the believers and no drive to incorporate everyone (religion as restricted club): pay property tax

o        public benefit: usual US line, implies that religions proselytise – i.e.  try to bring in everyone because of presumed benefit (religion as universal movement): do not pay property tax