Jurisprudence & Natural Law Slides.ppt

JURISPRUDENCE AND NATURAL LAW (LAW 491 & LAW 492) By Prof. Oswald K. Seneadza Faculty of Law, KNUST 1  (A) INTRODUCTION 1. AIMS AND OBJECTIVES OF THE COURSE i. The aim of this course is to introduce students to the wide spectrum of que...

JURISPRUDENCE AND NATURAL LAW (LAW 491 & LAW 492) By Prof. Oswald K. Seneadza Faculty of Law, KNUST 1  (A) INTRODUCTION 1. AIMS AND OBJECTIVES OF THE COURSE i. The aim of this course is to introduce students to the wide spectrum of questions about the nature of law, and its social and political questions. i.The principal objective is to enable students to think critically and in depth about the nature of law and the roles of the legal organisation of society. ii.Students, by the end of the course should be able to discuss intelligently the standpoints of the numerous theorists who have written on these matters and to engage critically with the central jurisprudential controversies today. 2  2. LEARNING OUTCOMES Intellectual skills An ability to present proofs and reasoned arguments A capacity to interpret and assess competing philosophical and ethical perspectives on law, and to use those perspectives to formulate arguments about law, politics and ethics A capacity to identify and analyze critically key jurisprudential issues Practical skills An ability to engage in and cultivate reasoned legal and moral arguments, by way of both oral and written presentation An ability to produce (by a specified deadline) a concise and appropriately structured report addressing a key jurisprudential issue. An ability to undertake independent online and library-based research and ability to carry out literature reviews. 3. READING For general reading about natural law, see e.g. 1.A.P. D’Entreves, Natural Law or 2.K. Olive crona, Law as Fact (2nd ed.) pp. 7-25; or 3.H.L.A. Hart The Concept of Law chaps. 8 and 9; 4.Lloyd’s Introduction to Jurisprudence (4th ed.) chaps. 1-3; or 5.C.J. Friedrich, The Philosophy of Law in Historical Perspective pp. 1-104; or 6.R.W.M. Dias, Jurisprudence (4th ed.) chap. 21; or 7.Mac Cormick, “Law, Obligation and Consent: Reflections on Stair and Locke”; or 8.J.W. Harris Legal Philosophies. 4 4. MORE SPECIFIC FUTURE READING 1. Aristotle Ethics (i.e. Nicomachean Ethics) esp. books 1 and 4. Politics, esp. Aquinas, Selected Political Writings ed. A.P. D’Entreves, or Summa Theologica; 2.T. Hobbes, Leviathan esp. Chaps. 6, 10, 12-21 3.Stair, Institutions of the Laws of Scotland, Book 1 4.J. Locke, Two Treatises of Civil Government, second “Treatise” 5.D. Hume, Enquiry concerning the Principles of Morals 6.H.L.A. Hart, Concept of Law 7.L. Fuller, Morality of Law 5  (B) PRELIMINARY QUESTIONS A few preliminary points must be dealt with before we talk of Natural Law proper in order to better understand the general problems of theoretical study of law. 1. What is Jurisprudence? It is the study of the general or fundamental elements of a particular legal system, as opposed to the practical and concrete details. It is the philosophy of law addressing the questions: what the law aught to be? where does law come from? What is the purpose of law? Is law science or humanity or neither? A study that concentrates on the logical structure of law, the meaning and uses of its concepts and the modes of its operation. Read: S. offei, (2011), Basic Jurisprudence and Legal Philosophy Chapter 1 (The Purview of Jurisprudence). 2. What is the Scope of Jurisprudence? The breadth of its scope, covering volumes of literature, makes it a difficult subject to master. It includes the ff: 1 Natural Law Theories: Ancient and Modern variants 2 Positivism (Analytical and Modified) 3 Utilitarianism and Retributivism (about punishment) 4 Historical Jurisprudence 5 Sociological Jurisprudence 6 Marxist Jurisprudence 7 Scandinavian Realism 8 American Realism 9 American Jurisprudence 10 African Jurisprudence 11 Law and Morality 12 Feminist Jurisprudence !3 Legal Concepts : Legal Rights, Dworkin’s Right Thesis Modern controversy concerns the boundaries of jurisprudence 3. What is Law? We all understand law as the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. There are attributes of law, based on views of different theorists, we nwed to know. i.Law is coercive. It is enforced by State officials and provides for civil and criminal remedies in cases of breach of law. But, as will be seen later in the course, not all laws are coercive and law itself does not solely coerce. ii.Law is institutional. It has organised bodies of officials, who adjudicate on breaches of law, impose sanctions, administer the legal system, make new laws etc. Again, as we shall see later in the course, this institutionalisation of law does not necessarily imply the State. 8 iii Law is normative. Laws, in the sense in which we are talking about them, differ from other things that are called laws. Thus the Law of murder is different from, for example, the law of gravity. One cannot speak of “breaking the law of gravity” because if we all started floating into space then the law of gravity as we know it would not exist. But if we all started murdering people, the law against murder would still exist and we could speak of breaking it. This is because the law of murder is normative. It does not tell us what happens in the world, as does the law of gravity, but rather what it ought to be and hence we can break it. We will see later how this is important for Natural Law Theory. 9 4. What Is Nature? Nature is the physical world and everything in it (such as plants, animals, mountains, oceans, stars, climate, etc.) that is not made by human beings but needed by humans to survive and thrive. It also means the forces that control what happens in the world, the way that a person or animal behaves, the character or personality of a person. All laid down according to a natural order. Therefore any behavior or act that does not conform to this order will “ignore or distort human nature” (Harris, 1980). One has to take into cognizance the full meaning of nature prior to its link with law. Because of this complexity, many thinkers have attempted a definition of natural law without taking into consideration the concept of nature and how it could be linked to law - especially the “is” / “ought” controversy. 10. 5. Questions of natural behaviour Before looking at natural law in more detail consider these statements and discuss them: (i.e. inherent instinct of human behavior, without involving reason) 1. Is it natural to be homosexual? 2. Is it natural to be violent? 3. Is it natural to be prejudice? 4. Is it natural to commit suicide? 5. Is it natural to be polygamous? 6. Is it natural to use contraceptive? 7. Is it natural to marry same sex? 8. Is it natural to be envious or selfish or self-preservative? 9. Is it natural to cause abortion to unwanted foetus? 10. Is it natural for human beings not to produce children? I mean the natural behavior that humans have the tendency to exhibit under natural conditions. The response of naturalist to these questions is that, there is a Creator that has subjected all things to laws of nature or ordained by nature.  (C) NATURAL LAW 1 What is Natural Law? One of the difficulties for natural law is that people have interpreted nature differently. Natural law is the philosophy that certain rights, morals values and responsibilities are inherent in human nature and that those rights can be understood through simple reasoning Natural Law is a higher moral law that exist independent of human will and not human created. The morale or legal validity of human law can be measured against it. Natural law is a system of law based on close observation of human nature and values intrinsic to human nature that can be deduced and applied independent of positive law (man- made laws, e.g. constitutions, legislations, regulations etc.) and relating to natural phenomenon. Natural Law is unwritten body of universal and unchanging moral principles that underlie the ethical and legal norms by which human conduct is evaluated and governed. It is concerned with moral principles that ought to govern political action, law-making and adjudication as well as the lives of citizens. Naturalists believe that natural law principles are an inherent part of nature and exist regardless of whether government recognizes or enforces them. According to them, all people have inherent rights conferred upon them by God or Nature or both. Natural law maintains, therefore , that these rules of right and wrong are inherent in people and are not created by society or court judges. These concepts are central to any understanding of the theories of natural law. 13  2. The Origins of Natural Law Natural law, which is the subject of discussion in my Lecture series, is an enduring concept in European jurisprudence, begining from Aristotle of ancient time (BCE), who held that there is a natural law which ‘everyone possesses from the same authority and is no mere matter of opinion’, through Cicero, who taught that ‘Nature herself has placed in our mind a power of judging’, and Aquinas, for whom the natural law was ‘the participation of the eternal law in the rational creature’, to today’s modern-Scholars, who seek to establish new values based on fundamental criteria often related directly to the social teachings of the Roman Catholic Church Natural law is often contrasted with the ‘positive law’, namely, the legal rules promulgated in formal fashion by the state and enforced through defined sanctions. A problem for students is to decide which ‘type’ of natural law is being referred to, since the term has been used in so many different senses. It is essential, therefore, to check the precise historical and juristic context of the term, particularly when answering questions on this topic.  3. Natural law vs. Positive law The theory of natural law believes that our civil laws should be based on morality (ethics) and what is inherently correct. This is in contrast to what is called “positive law” or “man-made-law,” which is defined by statutes and common law and may or may not reflect the natural law. Examples of positive law include rules such as the speed that individuals are allowed to drive on the highway and the age that individuals can legally purchase alcohol. Ideally, when drafting positive laws, governing bodies would base them on their sense of natural law. “Natural Laws” are inherent in us as human- beings, but “Positive laws” are created by us in the context of society. 16  4. The importance of natural law Natural law makes us think about: a) What is the purpose of law? what we should do when law is failing?; b) how moral goals enter into positive law?; c) how law plays a part in adjudication of cases and enforcement of law?; d) How it allows everyone of every culture, faith, society to use it? 17 5 Historical Evolution of Natural Law A. Ancient Period (3,600 B.C.E.–1,000 C.E.) (The origin is traced to the Greek (Athens) and Roman era excluding the development of Jewish and Christian ideas). The greeks were not so much interested in the technical development of law as they were in exploring its philosophical foundation. They evolved concepts in understanding man, society and the world in general (the Cosmos). Notable philosophers (naturalists) during the ancient period were: Socrates (469-399 BCE) – He argues that ‘like natural physical law there is natural moral law” Plato (427-347 BCE) – has nothing to say on natural law as such but his concept of nature had some element of natural law – natural order (see, John Wild) Aristotle (384-322 BCE) – Who argued that that natural justice is universal. “What is just by nature is not always the same as what is just by law”. Thales of Miletus (620 BCE- 546 BCE) – founder of the school of natural philosophy. Marcus T. Cicero (106BCE- 43 BCE)– To him there is one law which is eternal and unchanging, and God is the author of this law, its interpreter and its sponsor. The first natural lawyer to posit that any positive law that contravenes 18 the principles of natural law should be struck down. B. Medieval Period (1000 C.E.–1500 C.E.) The Middle Ages of Western Europe characterized by movement of people and invasions. Period between the fall of Rome and the Renaissance. Christian institutions sustained the medieval intellectual life. The though of unity, derived from God and involving one faith, onr church, one empire, and law not made by man but conceived as part of the unity of the universe (Freeman, 1999, 95). The relation of faith to reason was problematic as well as the existence of God for many thinkers. 1)Thomas Aquinas (1224-1274 CE) – In his thesis on natural law, he believed that natural law and religion were inextricably connected. To him natural law is man participating in God’s reason and so man is as a God (explained in Summa Theologica of the13th C). He identified 4 categories of law – though conceptually there is unity in them. 2) John Duns Scotus (1266-1308) – a Scottish influential theologian and professor of Theology – His book “The Treatise on God as First Principle” is about formal and rational distinctions. 3) William of Ockham (1287-1347) – an English theologian who believes that if God had wanted to, he could have become incarnate as a donkey or an ox and a man at the same time. He was seriously 19 criticized by other theologians. 3. Modern Period (1500 C.E.–1900 C.E) It has been a time of many advances in science, politics, warfare, technology and globalization. During this time the European powers began expanding their political, economic and cultural influence to the rest of the world. Lutheran vision of man’s relationship with God. Also was the emergence of modern natural law theory. Natural law became a weapon to stand against powerful regimes – the principle of equal capacity in all men. Some of the prominent modern natural law theorists were: 1.) Hugo Grotius (1583-1645) – the secularization of natural law started with Grotius. He was the first to reason that even if God does not exist, natural law would subsist. What is right and wrong depend on the nature of things and not on a decree of God. He associated nature with good faith, justice and sanctity of covenants. To him, positive law arise from natural law. The father of International Law. 2) Thomas Hobbes (1588- 1679) – he believes in God & faith. He did not believe that evil in society is natural. 3) John Locke (1632- 1704) - (The Two Treaties of Government) – to him all people are born with the inherent rights to life, liberty and estate but these rights are not unlimited – “nothing is made by God for man to spoil or destroy” 4)John J Rousseau (1712- 1788) – the theory of state and general will. 5)Emmanuel Kant 1724-1804)– draws close link b/n morality and freedom. 6)Karl Barth (1886-1968) – a Swiss Theologian – on Humanity of God 4. Contemporary Period (1900 C.E. - present) 1) Lon. Fuller -(1902-1978) – an American scholar and a status of natural law in contemporary period. He rejects the Christian version of the theory of natural law he aligns rather with the Aristotelian principles of social order and satisfactory life. He sees reason as the most essential character of natural law. He calls for a close relationship between means and ends. He calls this “internal morality” of law. 2) Ronald Dworkin (1931-2013) – an American jurist and atheist, a critique of metaphysical beliefs in God or spiritual beings. “I am against religion because it teaches us to be satisfied with not understanding the world”. Brought the idea of supremacy of Science over Religion. See, “The God Delusion” He was to some extent a natural law theorist, hypothesizing from observable data (natural selection-process by which living organisms adapt and change). He also believes that there are morals in law. He was in between natural law and positivism. At times critique of positivist theory. To him some are acceptable if one’s principles are skewed enough. 3) John. M. Finnis (1940 - ) – an Australian legal philosopher – his work was on “Natural Law and Natural Rights”, (1980) – a restatement of natural law. He talks of 7 elements of human goods – life, knowledge, play, aesthetic experience friendship, practical reasonable-ness and religion (i.e. cosmic order and reason). 4) HLA Hart (1907-1992) – A British Positivist legal philosopher who shifted his hard posture to modify his position on affinity between law and morals. He posits that “a consensus of moral opinion on certain matters is essential if society is to be worth living in.” (Hart, 89).  (D) THE NATURAL LAW THEORIES 1) Natural law theories concern the relationship between the moral natural law and positive human law. For example, humans have a natural drive to eat, drink, sleep and procreate. These actions are in accord with a natural law. Thus activities in conformity with such a law are morally good. Whiles nan-made laws that work against or limit such a natural law are, to the natural law theorists, morally wrong. 2) We must first of all distinguish the theoretical and logical foundations of the theory from the use people might put it to. We will look, briefly, both at theory and practice, adopting a broad historical perspective for theories can be best understood by looking to their historical roots and origins. 3) In Natural Law there are three concepts that are central to the understanding of the theories. They are: Nature (the physical world and everything in it, natural forces controlling the world, behaviour and character of humans and animals) Reason (human intellect, ability to think logically, form judgments, draw conclusions) God (conceived as the creator and sustainer of the universe – ‘Theism’) – though, ‘Deism’ believe that God is the creator but not the sustainer of the universe. Although one of the most important single images of Natural Law is the religious, we will find that in fact, logically, the notion of God is the least important in Natural Law thinking and God can, in many cases, be factored out without causing undue harm to the theory. We can proceed to look historically at the interconnections of these three concepts. 23  1. God (Devine natural law) (a) The theory, origin and proponents 1) To some proponents of natural law, God made the natural laws. God gave humans reason by which they are to learn of the natural laws, God also provides revelation concerning God’s will and wishes. Adherents of the religions of Christianity, Islam, Hinduism Buddhism, Sikhism, Judaism, Confucianism, African traditionalists etc. support this view and all believe in One Almighty God named differently with different doctrines and practices. 2) The Christian religious view came from a somewhat different source with less emphasis, ironically, on God as such. This is the Aristotelian tradition which culminated in great Christian system of St. Thomas Aquinas. 3) The sources of divine natural law are the various scriptures of the Bible (the ten commandments delivered to Moses on Mount Sinai) and the Torah. Also church doctrines, papal decrees and Canon law of the catholic Church which was applied by the ecclesiastical courts of Europe during the Middle Age. 24  St. Thomas Aquinas 1224-1274 Theology: the ultimate aim of human life is knowledge of God  Aquina’s Natural Law Theory St Thomas Aquinas (an Italian theologian/Philosopher of 13thC) was the leading exponent of divine natural law. He maintained that , human laws that are inconsistent with divine principles of morality are invalid and should neither be enforced nor obeyed. His theory contains four (4) Law: 1.Eternal law: (God’s creation and rational plan by which all creation is ordered including the law of nature e.g. gravitation, attraction, relativity, cause and effect, self-preservation – the so called first law of nature, where every living thing will fight to survive. 2.Natural law: ( Human nature and practical rationality or the way that human beings participate in the eternal law) 3.Human law: (Moral and legal rules made by man opposed to natural law and divine law) 4.Revealed law: (the divine law that according to religious belief, comes directly from the will of God which man cannot change, but only through revelations)  To Aquinas, all his four laws relate to one another through Eternal Law. But the question is, whether such a Natural Law can be normative? If it can not be normative then why call it ‘moral’ if one cannot, for example, break the law of nature such as Gravity?  The master principle of natural law, wrote Aquinas, was that "good is to be done and pursued and evil avoided." Aquinas stated that reason reveals particular natural laws that are good for humans such as self-preservation, marriage and family, and the desire to know God. 27 Thomas Aquinas believed that the existence of God could be proven in five ways, mainly by: 1)observing movement in the world as proof of God, the "Immovable Mover"; 2) observing cause and effect and identifying God as the cause of everything; 3)concluding that the impermanent nature of beings proves the existence of a necessary being, God, who originates only from within himself; 4)noticing varying levels of human perfection and determining that a supreme, perfect being must therefore exist; and 5)knowing that natural beings could not have intelligence without it being granted to them it by God. Subsequent to defending people's ability to naturally perceive proof of God, Thomas also tackled the challenge of protecting God's image as an all-powerful being. 28 Karl Barth (1886-1968), Swiss Theologian ) 29  Karl Barth’s Depart. Thomas Aquinas and Karl Barth are often taken to be two of the greatest theologians in the Christian tradition but they depart on “Humanity of God” or God as human being on earth. God is manifested in “Trinity” as God the Father, God the Son, and God the Holy Spirit, each entity itself being God. Barth says the Trinity is one God in three modes of being. He therefore rejects "three persons" because it communicates that there are three "personalities" (or self- consciousness) in God. He emphasized the transcendence of God. To him God is wholly independent of the material universe and beyond all known physical laws. Thus, God transcend knowledge (i.e. is beyond the grasp of the human mind). Divine Command Theory of Karl Barth According to Karl Barth, “God speaks man listens, God commands man obeys”. By his theory, the obvious answer to a question like, is abortion of a foetus with genetic disease permitted, will be by this logic: Gods command: Thou should not kill! The foetus is a human life Abortion is killing a human life Therefore abortion is not permitted even if to save human life. 31 Problems with the divine command theory Presuppose a controversial assumption: the existence of God how do we know what is God’s will? It denies the communicative character of morality – freedom of expression, diverse perspectives, and dissenting opinions. It denies the possibility of unity between Christians and non-Christians 32  (b) The Practice & Introduction of God into Law  Henry de Bracton, an English judge from the 13th C wrote that a court’s allegiance to the law and to God is above its allegiance to any ruler or lawmaker.  In the declaration of independence, Thomas Jefferson, borrowing from Locke wrote that “ all men are created equal...and are endowed by their creator with certain inalienable rights....including life, liberty and the pursuit of happiness” And he said “ Almighty God has created the mind free and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint’  In Powell v. Pennsylvania 127 US (1888) the supreme stated “ right to pursue happiness is placed by the Declaration of independence among inalienable rights of man, not by the grace of emperors or kings, or by the force of legislative or constitutional enactment , but by the 33 creator”. In MacIlvaine v Coxe’s Lesssee, 6 US (1805) the Supreme Court relied on the Bible as “ancient and venerable “ proof that expatriation had long been “practiced, approved and never restrained” In Edwards v. Aguillard 482 US (1987) the supreme Court said that “ the Founding Fathers believe devotedly that there was a God and that the inalienable rights of man were rooted in Him”. The US Constitution altered the relationship between law and religion. Article VI establishes the constitution as the supreme law of the land. The first Amendment prohibits the government from establishing a religion, which means that a law may not advance one religion at the expense of another or prefer a general belief in religion to irreligion, atheism, or agnosticism. Although these laws preclude the judiciary from grounding a decision on Scriptures or religious doctrine, state and federal courts have occasionally referred to various sources of divine natural law. Examples: 34  In Dread Scott v Sandford, 60 U.S (1856) the Supreme Court held that slaves were the property of their owners and were not entitled to any constitutional protection. In a dissenting opinion, however, Justice John McLean wrote that a “slave is not mere chattel. He bears the impress of his Maker and is amenable to the laws of God and man”  Despite the sprinkling of cases that have referred to Scriptures, religious doctrine and Judeo-Christian heritage, such sources of divine natural law do not ordinarily form the express basis of judicial decisions.  At the same time, it cannot be said that courts have completely eliminated any reliance on natural law principles and reference to God. To the contrary, many controversial legal disputes are still decided in accordance with unwritten legal principles that are derived from religion (God). 35  Most national Constitutions including the Ghanaian one begin with a preamble that mention God -- (e.g. “In the name of almighty God”, “Supreme Ruler of the Universe”). However, some European countries like Spain keep God out of their Constitution.  Some allow every citizen the right to practice his or her own religion. In US God was mentioned in the Declaration of Independence but not in the Federal Constitution but uses in the Constitution the formula “the year of our Lord”.  Some explicitly prohibit those who do not believe in God from holding public office (e.g. US) 36  2. Reason (Secular Natural Law) (a) The Concept of reason in Natural Law  This school of natural law known as secular natural law replaces the divine laws of God with: physical - biological - behavioral as understood by human reason.  This school theorizes about the uniform and fixed rules of nature, particularly human nature, to identify morale and ethical norms. Influenced by the rational empiricism of the 17th and 18th Century.  They stress the importance of observation and experiment in arriving at reliable and demonstrable truth. Theories are based on hypotheses about human behaviour in the state of nature  Secular natural law elevates the capacity of the human intellect over the spiritual authority of religion  We can see this idea of reason more clearly in the dictum of David Hume that “reason helps us to achieve the object of our desires” He argued that moral or legal principles are given to us as innate ideas discoverable by pure reason. 37 (b) Practice & Influence of reason in law and Politics  In practice we use reason in our logical thinking, judgments in courts and drawing conclusions – Hence the idea of “reasonableness” in decision making.  In Powell v Pennsylvania 127 U.S (1888) justice Stephen J. Field wrote that he had “ always supposed that the gift of life was accompanied by the right to seek and produce food, by which life can be preserved and enjoyed, in all ways not encroaching upon the equal rights of others”  Many of the founding fathers of US- Washington, Jefferson, Franklin, and Monroe – practiced a faith called Deism. Deism is a philosophical belief in human reason as a reliable means of solving social and political problems. 38 (c) Law and Reason  Human beings have a faculty of reason which enables them to rationalize and justify their values, motives, believes and course of action.  Reason gives human beings the power to think, make sound judgment, originate concepts through ingenuity and able to draw inferences from facts and this is what makes human beings sui generis, distinguishable from the animal kingdom  Reason dictates the types of extra-legal ideas that are relevant in dealing with law, because by subjecting law to the test of reason, its true character is laid open.  Reason enables us to delve deep into ideas such as justice, equity, morality, by which we can measure the justness or otherwise of law.  The idea that law and order should exist is a product of reason and it is reason alone that can justify any law (Lloyd, 1981,82)  According to Kant (1972, 99) metaphysics gives brain to law in order to make it reasonable.  It is reason that turns a society from a state of insecurity to that of 39 moral order. (Bonhoefer, 1975,146)  3. Nature (a) The Theory of nature and historical natural law Nature is already defined in the previous slide.  Thomas Hobbs, for instance does not have a traditional view of man’s nature. For him, natural law is nothing other than natural propensity of each human being to pursue his own interest by seeking to maximize his own power. Thus State of Nature is state of war. All against all. Natural law is nothing more than the right of each to as much as he can get and keep. Self-defending – need to seek peace by establishing some rule among men and criterion of justice, need for the formation of government to provide justice.  Historical natural law represents the system of principles that has evolved over time through the slow accretion of Custom, Tradition and Experience based on Nature  According to this school, law must be made to conform with the well-established, but unwritten, customs, traditions and 40 experiences that have evolved over the course of history. One way to justify the view that there are norms and values which are objectively true and which hold good for all human beings through all places and times (the traditional view of Natural Law) is by adopting a teleological view of nature. Natural processes tend towards predetermined ends – acorns grow into oaks, seeds into vegetables, etc. This gives us an idea of “the good”: the good for a species is the “end” of full maturing to which it will develop if the ordinary course of things is not impeded. Likewise, a part of something can be understood only by reference to its contribution to the proper function of the whole to which it belongs. Can a heart or a hand be understood without knowing its place in a healthy body? 41 (b) Practice /influence  Nature & historical natural law have played an integral role in the development of the Anglo- American system of justice. When King James I attempted to assert the absolute power of the British monarchy during the 17th century, Sir Edward Coke (the English jurist) argued that the sovereignty of the crown was limited by the ancient liberties of the English people, immemorial custom, and the rights prescribed by Magna Charta in 1215 (which laid the cornerstone for US Constitutional liberties).  Historically, due process guarantees that no defendant (in criminal cases) may be convicted of a crime unless the government can prove his or her guilt beyond a reasonable doubt – through common law tradition and is now embodied in constitutions. 42  Introducing “due process” clauses (implies using Natural justice rules): The 4th and 5th Amendments to the US Constitution, or in Article of the i992 Constitution of Ghana - (all in the spirit of Lockean natural process).  Laws prohibit governments from taking life, liberty or property without due process of law.  Laws nowadays provide procedural protection, guaranteeing litigants the right to fair hearing (audi alteram partem); and to be free from all forms of bias (nemo judex in causa sua).  All these procedural requirements take their roots from nature and historical natural law 43 Integrating the three concepts In the Ancient Greek (Aristotle’s time), God (Deity) as spiritual sphere was isolated from ‘nature’ and ‘reason’ in conceptualizing natural law. Most of the natural law philosopher never submitted to divine law. 44 In the 12th C, Gratian, an Italian monk and father of the study of Church Canon Law, equates Natural law with divine law of the Old and New Testaments. After that, the concept of God (Divine law) was accepted into natural law jurisprudence as integrated concept. However philosophers associated themselves to the concepts by different combinations of the three concepts as illustrated by the next figure. 45 Nature and Reason Nature and God Reason and God Integrating the three Concepts (A) + (b) by Natural Law (A) + (C) theorists ( B ) + (C)  Stair  Thomas Aquinas  Emmanuel Kant  Hugo Grotius  Emmanuel Kant  John Finnis  John Locke  Marcus Cicero  Lloyed, D  Roland Dworkin  Lon Fuller --------------------------- ---------------------------- ---------------------------- They believe in faith Nature as reason a God is creator of the and reason. God Thomistic Theory). universe and giver created human Eachh person must of the divine law. beings with the use his reason to God is power to reason. discover what unlimited with regard Nature and accord with ‘right to knowledge reasons for reason’ (omniscience), violating Natural law is com- power fundamental prise of those (omnipotence) and human rights, precepts of the extension (omni- enforceable rights. eternal law that presence). Aquinas Finnis cotend law govern the said natural law is is reasoning. behavior of beings an aspect of divine Liberal morality of possessing reason provi- dence. All human rights can and free will. Stair people have be derived from the said law is the inherent right not requirements of 46 dictate of reason. given by reason. Reasona-  John Locke wrote that “ in the State of Nature human beings live according to three (3) principles: (a) liberty (b) equality (c) self-preservation Since no government exist in the ‘State of Nature’ to offer police protection or regulate the distribution of goods and benefits, each individual has a right to self-preservation that he or she may exercise on equal footing with everyone else. This right includes the: (a) liberty to enjoy a peaceful life (b) liberty to accumulate wealth and property (c) to satisfy personal needs and desires consistent with the coterminous liberties of others.  To Locke, anyone who deprives another person of his or her rights in the State of Nature violated the principle of equality. Human liberty is neither equally fulfilled nor protected. Because individuals possess the liberty to delineate the limits of their own personal needs and desires in the State, greed, narcissism, and self-interest eventually rise to the surface causing 47 irrational and excessive behaviour and placing human safety at risk.  Stair, like Locke stress the identity of Natural Law and reason. Men owe each other certain basic duties, e.g. to avoid physical harm, not to take life hence they have certain rights which must be respected, property. Because of absence of government in the State of Nature, men cannot well enforce their rights when they are broken. He therefore justified the establishment of government with power to administer natural law.  According to Stair, natural rights may be restricted for the common good. The question is whether, on the balance, government is preferable to revolutionary action from the point of view of overall security of rights.  There are reasons for holding certain laws - for establishing standards, maintaining order, resolving disputes and protecting liberties and rights or something else); 48  We can see, even in all of the foregoing, the emphasis on Reason. Man takes part in God’s Reason and so, in Natural Law, he is as a God. Indeed, the relation between God and Reason becomes a reason and, if so, what does that do to his omnipotence?  One answer is that God wills Natural Law but wills it because of his reason. This implies that He knows the Natural Law, albeit more perfectly, in the same way as we do.  From here it is a short step to saying Reason is the most important part of Natural Law and Natural Law would remain true even if God did not exist. 49  The theorists discussed so far are interested in showing what the good is for man. They are not interested in justifying society as such for man is to be understood as a societal creature.  What this means is that they take the society in which men find themselves for granted as the context within which men exist.  Thus Aristotle does not really question the polis (ancient community) and Aquinas accepts the political structures of Medieval Christendom.  The theories have, then, a conservative cast and even though Natural Law is superior to human law, disobedience is justified only in rare cases. 50  What are the Problems with Natural Law theory? 1. People have interpreted nature differently. Should this be the case if as asserted by natural law theory, the moral law of human nature is knowable by natural human reason? 2. How do we determine the essential or morally praiseworthy traits of human nature? Traditional natural law theory has picked out very positive traits, such as “the desire to know the truth, to choose the good, and to develop as healthy mature human being”. But some philosophers, such as Hobbes, have found human. In beings to be essentially selfish. It is questionable that behaviour in accordance with human nature is morally right and behaviour not in accord with human nature is morally wrong. For instance, if it turns out that human beings (at least the males) are naturally aggressive, should we infer that war and fighting are morally right? 3. Even if we have certain natural propensities, are we justified in claiming that those propensities or tendencies should be developed? On what grounds do we justify, for example, that we ought to choose the good? 51 4. For Aquinas, the reason why nature has an order is because God had put it there. Other thinkers, such as Aristotle, did not believe that this order was divinely inspired. Does this alleged natural moral order require that we believe that there is a God that has produced this natural moral order? Evolutionary theory has challenged much of the basis of thinking that there is a moral natural order, since on evolutionary theory species have developed they way they have out of survival needs. 5. It is doubtful that one can infer moral principles forbidding adultery, rape, homosexuality and so forth, either from biological facts about human nature or from facts about the inherent nature of Homo sapiens. 6. Critics of natural law theory say it is doubtful, however, that the inherent nature of Homo sapiens establishes laws of behaviour for human beings in the same way as it may establish laws of behaviour for cats, lions and polar bears. It is especially difficult because so much of human behaviour is shaped by the environment, that is, by deliberate and 52 non-deliberate conditioning, training and education. 7. Two philosophers (Aquinas and Aristotle) integral to the theory have different views about God’s role in nature, which confuses the issue, especially when trying to decipher if the theory relies on the existence of God. 8. The intrinsic nature of humans as it pertains to establishing laws of behaviour may not be the same for animals, which presents difficulties within the theory. 9. Human behaviour may be sorely reliant upon the environment that one is exposed to, which includes social classes, education and upbringing, this opposes the theory. Questions for Discussion 1. Why should we obey the law given by the state? 2. What gives law its obligatory character? 3. What if law unfairly treats a section of its citizens as undeserving of the privileges enjoyed by the majority? 4. What if a law is just plainly wrong or the consequences of breaking it would be beneficial to oneself, or others? 5. Is civil disobedience a legitimate political weapon for the 53 citizen  6. Should the State accept that one’s moral and political obligations may outweigh one’s “legal” duties? 7. What is the contrast between Natural Law and Positivist approach to law? 8. In the view of L. Fuller, the condition of something being called law (legality) is that it should have a mix of (a) general rules (b) promulgation (c) no retro-activity (d) clear, fair and reasonable (e) no contradiction in law (f) must not require the impossible (g) consistency (h) congruence between official action and declared rules. What is Hart’s answer/reaction to this view? 9. “Not all immoral acts are illegal and not all illegal acts are immoral”, Discuss. 10. What are the two methods to make moral decisions? (a) To find out what is “natural” – according to nature (ex prohibition of suicide) (b) What is according to the common good? (teleology) 54 11. Liberia, Cambodia, Ruanda, Darfur, Zimbabwe, Kosovo are some recent examples of countries that have been threatened by severe oppression and genocide. Is it morally right for neighbours to intervene in order to restore peace? Answer Plan: Morally relevant aspects: Oppression and poverty – obstacles to life and social relation The international order – based in a natural order; preservation of peace The intention of the intervener? A possible reasoning: The choice is between intervention and letting the genocide continue If there is a reasonable chance of a successful intervention and the violence is proportional to the goal, and If the intention is to restore peace , 55 Then, an intervention is morally legitimate.