Natural Law Syllabus Summary PDF

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni o on the one hand, the necessary social cooperation that stems from the democratic system requires us to accept a minor injustice, or at least not to resort, in thi...

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni o on the one hand, the necessary social cooperation that stems from the democratic system requires us to accept a minor injustice, or at least not to resort, in this case, to the ultimate remedy of civil disobedience. In other words, the violation of a higher principle must be serious, even if it does not have to be personal to us. o On the other hand, in view of the infringement of the principle of respect for the law, it is also necessary to ensure the proportionality of the actions taken in the form of civil disobedience, and therefore to limit the transgression to what is necessary to achieve the objective of modifying the norm in question (always within the peaceful framework described above). Chapter 3. Natural law is undemocratic A fourth criticism, and not the least important one, can be levelled at natural law: it is its undemocratic character. Indeed, the very nature of natural law is in principle to escape the human will (which is embodied in positive law), and therefore the will of the democratic majority. The argument seems unassailable. However, further reflection on the notion of democracy should lead us to at least qualify this conclusion. We can only refer here to the Constitutional Law I course (3th part), where the notion of democracy is approached from a genetic, philosophical and legal perspective. We will simply recall that one of the conclusions of this course on the subject is that it is delicate to enclose the democratic requirement in a definition containing legal principles with very precise contours, but that it is possible to describe in broad strokes the conditions of possibility of the democratic fact. Hugues Dumont and Mathias El Berhoumi write that the democratic regime presupposes the existence of spaces for discussion governed by rules that make the discussion in question both possible and likely to lead to decisions, rules at the heart of which fundamental rights and freedoms occupy a prominent place. Agreeing with Philippe Gérard's thesis, they specify that democracy is based on two principles: o namely the principle of the equality of the members of the political community on the one hand, and o the principle of collective autonomy which is expressed in the sovereignty of the people and whose conditions of possibility are precisely the fundamental rights and freedoms relating, in substance, to the moral and physical integrity of individuals, to the freedoms of conscience, expression and association and to political rights. And to quote this fine judgment of the European Court of Human Rights: "There is a very close link between the rule of law and democracy. Since the function of the law is to make distinctions on the basis of relevant differences, there can be no real rule of law over a long period of time if those subject to the same laws do not have the final say on their content and implementation". In other words, if we move away from a purely formal definition of democracy, and accept the idea that there are conditions of possibility for its functioning whose principle (and not the specific modalities and implementation) escape political deliberation, we can envisage natural law (insofar as it is identified with these fundamental rights and freedoms) as not being radically anti-democratic but as being indispensable to democracy. Here we come back to the problematic mentioned in the introduction to the course, concerning the relationship between democracy and the rule of law, which is undoubtedly one of the most beautiful and complex questions in legal theory and political science. It should also be remembered that there is no ontological and incontestable assimilation between the notions of the rule of law and natural law. Chapter 4. Natural law is not natural If legal positivism disputes that natural law is law, one can just as legitimately question whether it is 'natural' law. Is it possible that law is not always of human origin? To understand the scope of this criticism, we need to examine the 'naturalist' argument, according to which what is natural is good, or else: because something is, it must be. This argument is probably as old as humanity itself, and has been used many times in the service of natural law theories. However, it contains the risk of confusing the order of what is with the order of what ought to be, statistical recurrence with what is desirable. It will be remembered that Page 62 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Hume had already condemned the reasoning that moves from the fact to the norm without explaining it, a complaint that certain positivists like Kelsen were quick to direct against natural law. Now, legal normativity is supposed to have a major difference from scientific law, as Kelsen has explained very well. There are, according to him, two principles that make it possible to link acts of human conduct to each other and to other facts, namely the principle of causality (if A is, B is), which involves causes and effects and which is the basis of scientific law, and the principle of imputation (if A is, B must be), which mobilises a will and which is the basis of the legal (or ethical) norm. According to Popper, the falsifiable character of the first formula determines its scientificity, whereas the possibility of B not being realised is a condition of the juridicality of the second. Their purposes are also different, science aiming to explain and predict events, and law to prescribe, prohibit or authorise behaviour. Finally, if necessary causality is likely to pose a serious threat to human freedom, law has long found in it a foundation for most of its constructions, notably that of responsibility. It will be recalled that Austin retained only a weak analogy between 'literal' laws and scientific laws, since the latter have no clearly identifiable author and are not aimed at rational addressees capable of a will enabling them to respect or not these laws. The Belgian Court of Cassation is not immune to this type of shift from fact to norm, as the following three judgments, handed down at significant intervals, show. "Attendu que si plusieurs personnes ont, par un dol commun ou par une faute commune, causé un dommage à autrui, ce préjudice peut être imputé en entier à chacune d’elles et que chacune doit équitablement en supporter la responsabilité entière ; Attendu que cette espèce de solidarité, qui résulte de la nature même des choses, est implicitement admise par l’article 1383 du Code civil (...)" , "Attendu que, lorsque le conflit existe entre une norme de droit interne et une norme de droit international qui a des effets directs dans l'ordre juridique interne, la règle établie par le traité doit prévaloir ; que la prééminence de celle-ci résulte de la nature même du droit international conventionnel" , " Les biens du domaine public de l'État et ceux de son domaine privé qui sont affectés à un service public ou d'intérêt général ne sont, de leur nature, pas susceptibles d'être soumis à l'impôt ". The first judgment is the one which established the notion of obligation in solidum, according to which, when several faults have contributed to causing the same damage, each of their authors may be held liable for the totality of the damage caused, it being up to him or her to then take action against the other authors. o This obligation (which therefore comes under the heading of duty to be, of the norm) is derived here from 'the very nature of things' (which comes under the heading of being, and therefore of fact), although the Court adds with a hint that this 'kind of solidarity' is implicitly admitted by article 1383 of the former Civil Code, which provides that each person is liable for the damage he or she has caused not only by his or her own act, but also by his or her own negligence or carelessness. One wonders what is meant by this 'nature of things' which imposes the solution of in solidum. Could it not be concluded that the victim can only claim from each perpetrator the share that is incumbent on him or her, according to a criterion to be determined (manly shares, causal incidence or seriousness of the fault)? The Court of Cassation is not very prolix in this respect and the doctrine has admitted that the basis of the solution was mainly equity (mentioned in the judgment), in order to place the risk of default by one of the perpetrators on the wrongdoer rather than on the victim. With regard to the second judgment, budding lawyers will certainly have recognised the Le Ski judgment, undoubtedly the most famous judgment in the case law of our Court of Cassation, which we have already had occasion to mention. This judgment enshrines nothing less than the primacy of international law with direct effects on national law. Here, it is the "very nature of international treaty law" that seems to dictate this solution. Could it not be stated, with equal seriousness, that if the pre-eminence of the treaty over national law is a solution that is imposed in international law, the same cannot be said of national law, where the basis of all rules of law is the Constitution, which therefore takes precedence over the law concluded by virtue of and in compliance with the rules it contains? Is it not in the "very nature of a Constitution" to take precedence over any other rule of law? Far be it from us to question this Page 63 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni jurisprudential achievement. However, it is useful to question the soundness of the reasoning adopted by the Court in this seminal judgment. The last judgment may seem, at first sight, more anecdotal. However, this is not the case, since it has the impact of exempting from taxation property in the public domain and property in the private domain assigned to a public service on the sole ground that this exemption results from the very nature of such property. As we can see, the reference to the nature of things is sometimes a very convenient way of dispensing with the need to justify a solution in a more reasoned way. It is all the more convenient as nature is silent... It is easy to imagine how this approach could lead to solutions that were far more problematic in substance. For example, a shift occurred in German law schools between 1933 and 1945, where naturalistic reasoning led law professors to teach that Nazi German law corresponded to the natural law of the natural living community constituted by the German Volk. Since an animal instinctively protects itself from parasites and foreign species, the rule prohibiting marriage between Germans and Jews was, according to these professors, a natural one. In Belgium, the question of women's access to the legal profession first, and then to the judiciary, led eminent jurists of the time to draft texts which, today, should make the less feminist react, all against a backdrop of naturalist arguments. The following two excerpts probably speak for themselves (it should be noted, however, that the second text dates from 1946, i.e. only 2 and 4 years respectively before the adoption of the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms): « Dans ces conditions, Messieurs, l’inexistence légale de la femme-avocat s’impose à notre esprit avec tous les caractères de l’évidence (…). Mais ce n’est pas à raison de son état de dépendance que les lois romaines excluaient la femme du barreau. C’est par une raison plus haute, puisée dans la nature même de la femme. (…) la profession nous paraît incompatible avec la mission sociale que la providence leur a départie ; nous leur conseillerions de rester épouses et mères et de continuer à exercer ainsi, sur les affaires de ce monde, leur douce et salutaire influence, autrement féconde, autrement puissante que celle qu’elles pourraient trouver dans la pratique du Barreau. Le barreau, on l’a dit avec raison, veut son homme tout entier ; les saints devoirs de la femme la veulent aussi tout entière (…) Mais restez femmes toujours ; laissez aux hommes les offices virils, le gouvernement de la nation et la vie publique pour laquelle vous n’êtes point faites (…) » « La requête-pétition des femmes belges repousse toute discrimination de sexe. Cette discrimination s’impose cependant dans bien des cas. On doit en faire grief à la seule nature; et les femmes les plus exaltées sont obligées d’y souscrire souvent, car les plus obstinées ne peuvent supprimer les différences physiques et psychiques entre-les deux sexes, ni leurs conséquences. (…) Plus faible physiquement, la femme a en plus un lourd handicap du fait des menstrues, de la grossesse et de la ménopause qui augmentent cette infériorité (…) la femme convient moins bien que l’homme pour les fonctions judiciaires. Psychiquement, son tempérament est subjectif, émotif et primesautier. Elle manque donc de la sérénité nécessaire. Physiquement, ses forces sont moindres et ses troubles périodiques et la ménopause, ainsi que son rôle normal de mère de famille, sont de graves empêchements dans une carrière qui nécessite des prestations régulières et absorbantes ». Another example is Section 377 of the Indian Penal Code, which under the heading of 'unnatural' offences states: 'Whoever voluntarily has unnatural sexual intercourse with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine'. In a ruling on 6 September 2018, the Indian Supreme Court has, thankfully, decriminalised same-sex relations between consenting adults. Beyond these examples, which in a way speak for themselves, there are two objections to the naturalist argument. The first is that there is often no consensus on what is natural. The first part of the course showed this sufficiently, notably with the questions of equality (contrary to nature for Callicles or Plato, the basis of natural law in modern theories), slavery (which comes under natural law for Aristotle, Page 64 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni which becomes natural law according to Aquinas, and, despite the displeasure of the American Supreme Court in its Dred Scott decision which is contrary to natural law according to the great French and American declarations), private property (which is not part of original natural law but is added to it for Rufin, Aquinas, De Vitoria or Suarez, which is part of natural law for Locke but not for Occam or Rousseau), the right of resistance (admitted by Locke and the great declarations, but contested in different measures by Hobbes, Rousseau and Kant). ✓ This should not come as a surprise. We have known since Descartes that we should not rely too much on the testimony of our senses, so we inevitably reconstruct the world according to our perception, which is itself influenced by our culture. The second objection is undoubtedly even more radical and important, even if less intuitive: there is nothing that requires us to consider, in all circumstances, that what is must be, that what exists is always what is desirable. ✓ This was undoubtedly the error of Thrasymachus, of certain Roman jurists or of Hobbes who derived natural law from the observation of nature. One can admire nature or support Darwin's theses without necessarily wanting to apply them to human society. ✓ According to Darwin, life is driven by natural selection so that the strongest always dominates the weakest and survives. Social Darwinism is precisely the idea that it is possible to transpose this mechanism to human societies (which Darwin himself refuted). It is not difficult to make the link with racial theories, eugenics or the justification of colonialism. Yet, as we have seen, legal normativity is fundamentally different from scientific laws. As a result, human law is perfectly legitimate to provide a solution that goes against nature. If one must admit that the law of the strongest is a constant in the natural world, it is very clear that the logic of fundamental rights, of positive discrimination or of consumer protection rules demonstrates that certain human societies have chosen to deviate from nature. It is questionable, however, whether the relevant criticisms of the naturalist argument reach all natural law theories in a decisive way. Indeed, many of the authors studied in the first part of the course do not derive norms from facts. As we have seen, the ancient thinkers' conception of nature cannot be reduced to a purely factual dimension: in Aristotle's teleological conception, the nature of a thing is linked to its final cause and not to efficient causality, which is the only concept that modernity applies to the notion of nature. For Thomas Aquinas, the first great principles of natural law are not deduced from facts: they can be perceived by any reasonable person as self-evident and unprovable. Several centuries later, Christopher Saint-Germain wrote that the law of nature, also called the law of reason, 'is written in the heart of every man'. The American Declaration asserts in the same sense that equality and inalienable rights such as life, liberty and the pursuit of happiness are truths that 'go without saying'. Therefore, Hume's guillotine may not be as fatal to natural law theories as one might think. As will soon be seen, Fuller also attacks the positivist critique that natural law wrongly infers a duty to be from a being, reminding us that the lawyer does little else when he derives the meaning of a norm from the intention of its author. Chapter 5. What natural law? §1. Procedural right : Lon Fuller 1. Natural law The fundamental problem at the heart of the debate between jusnaturalists and positivists is not, according to Fuller, whether to call the former absolutists and the latter relativists, or to answer the question of the superiority of natural law over positive law. The absolute/relativistic dichotomy adds nothing to the debate on law and justice. As for the question of the superiority of natural law over positive law, he considers it futile: he finds it just as problematic that a Page 65 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni judge would set aside any provision of positive law that he felt was contrary to natural law as it is obvious that one could imagine a law that was so infamous that anyone would feel compelled to disobey it. In fact, he adds, most jusnaturalists based the obligation to respect positive law on natural law, which only commands deviation from positive law in exceptional cases, such as dictatorship or occupation by enemy forces. According to Fuller, the central issue is the dichotomy between 'is' and 'ought', which we have already had the opportunity to discuss on several occasions. Whereas the jusnaturalists associated the two, the positivists consider that jurists should limit their study to what the law is, not what it ought to be. For the Harvard professor, this hackneyed distinction cannot be applied to an intentional human activity like law. He gives the example of a machine sold in parts, whose manual was written by an engineer with broken English. The English teacher, who sticks to a literal interpretation of the manual, will have great difficulty assembling the machine, whereas the mechanic, who does not focus on the terms used but on the intention, the purpose of the designer of the machine, will be able to assemble it without any problems. Now, according to Fuller, an intention or a goal is a fact, but one that gives an objective, a direction to follow. It is therefore both a fact and a criterion for judging facts, and 'logic', which tells us that it is impossible to derive what should be from what is, is inapplicable to it. 2. A procedural natural law “Do the principles expounded in my second chapter represent some variety of natural law ? The answer is an emphatic, though qualified, yes. What I have tried to do is to discern and articulate the natural laws of a particular kind of human undertaking, which I have described as ‘the enterprise of subjecting human conduct to the governance of rules’. These natural laws have nothing to do with any ‘brooding omnipresence in the skies’. Nor have they the slightest affinity with any such proposition as that the practice of contraception is a violation of God’s law. They remain only terrestrial in origin and application. (…) They are like the natural laws of carpentry, or at least those laws respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in it. (…) What I have called the internal morality of law is (…) a procedural version of natural law (…) concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be (…)” (L. FULLER, The Morality of Law) In the second chapter of the Morality of Law, Fuller recounts the unhappy reign of a monarch named Rex, who will experience eight different ways of failing in his attempt to establish, from scratch, a legal system. He understood the need to adopt general, published, non-retroactive, understandable, non-contradictory, stable rules that do not require the impossible, and to ensure that the actions of the authorities correspond to these rules. These 'principles of legality' constitute the 'internal morality of law' or the fundamental principles of a procedural natural law. These natural laws have nothing to do with a kind of 'threatening omnipresence in the sky' but 'remain entirely earthly, both in their origin and in their application'. They are closer to 'natural laws of carpentry' than to divine laws. For contemporary lawyers, Fuller's eight requirements are somewhat obvious. However, it is important not to overlook Fuller's detailed, often original and almost always thought-provoking treatment of them. o One example is the emphasis on the need to publish laws, which serves not only to inform citizens of the content of laws but also to enable them to exercise control over both the laws and their observance by those responsible for their application and enforcement (p. 60). o With regard to retroactivity, Fuller points out both its 'possible positive contribution to the internal morality of the law' and its 'inevitable link with the office of the judge' (p. 62), the 'most difficult problem of all' being, however, 'to determine when an enactment is to be regarded as retroactive' (p. 62). o He also explains that the problem of contradictions in laws is not, as is generally thought, a problem of logic. If the principle of identity, according to which A cannot be non-A, 'has some value in itself, it has none when it comes to dealing with the problem of contradictory laws' (p. 74). o He gives the example of the law that both requires the owner of a car to install new number plates by the first of January and makes it a criminal offence to do any work on the same day. According to Fuller, such a procedure may not make sense, but it is not against formal logic to make a man do something and then punish him for it. His point is that in determining whether two rules of behaviour are incompatible with each Page 66 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni other, it is often necessary to take into account considerations extrinsic to the terms of the law, be they legal, moral, political, economic or sociological. Instead of the classical formulas for resolving contradictions (lex specialis, lex posterior), he accepts the method of making a reciprocal adjustment between the two incompatible provisions or laws by interpreting one in the light of the other. In the above-mentioned example, the best solution, in his view, is to consider that neither the owner who places his plates on the first of January nor the one who waits until the next day to do so is in breach of the law (pp. 77-78). o The principle of consistency between government action and the declared rule, which Fuller describes as "the most complex requirement of the internal morality of law" (p. 89), deserves some attention. The task of ensuring compliance with it 'falls primarily to the judiciary' and the most subtle aspect of this task 'is, of course, the problem of interpretation' (pp. 90-91). o This problem, which seems to him to have been treated in a particularly unsatisfactory way by positivists, finds its solution in the reasoning of the Barons of the Exchequer in a 1584 Heydon case, the main lesson of which is that the understanding of a statute requires an understanding of the problem it was intended to remedy. o The judge must therefore seek, rather than the intention of the legislator, the intention of the law, while taking into account the understanding that it may legitimately have aroused in the citizens "since the law must not become a trap for those who are not capable of knowing its motives as fully as the judges" (pp. 91-95). o The judge who is confronted with an 'incomplete' law, in that it does not explicitly address the case before him, is not showing a lack of fidelity to that law but is carrying out his task, and the 'time for praise and criticism comes only when it is possible to examine what he has accomplished in this inevitably creative role' (p. 96). According to Fuller, a total failure to meet any of the eight requirements of legality deprives a legal system of any legality. It should be noted that Fuller is one of those authors who, like Radbruch, consider that German legal positivism contributed to the rise of fascism in Germany, by promoting a particularly deferential attitude towards authority. While it is necessary to pursue these eight requirements, this does not mean that these principles should be considered absolute: rather, they are ideals towards which one should strive. It is also possible that some of these requirements may conflict, or that the violation of one of the criteria may be justified by the fulfilment of the others. This is the case with the requirement of stability of laws and the requirement that laws should not demand the impossible when factual circumstances have changed to such an extent that they create almost insurmountable barriers to obedience. Similarly, making laws perfectly clear and comprehensible to all citizens comes at the cost of laws that lack the qualities necessary for consistent and predictable application by the courts. Moreover, the respective importance of these principles, as well as their hierarchy, depends on the branch of law in question or the rule concerned. It is understandable that, for Fuller, legality is a practical art: 'It is easy to see that laws should be clearly expressed in general rules which are valid for the future and are made known to the citizen. But to know how, under what circumstances, and according to what balance these things are to be accomplished requires nothing less than to be a legislator' (p. 102). 3. Some contemporary issues Although natural law has had its heyday and its decline, we should not conclude that it belongs to ancient history. The questions it poses, or leads to pose, remain as relevant as ever. We have seen, moreover, that what the notion of natural law could aim at has evolved over time: Aristotle's teleological conception can hardly be reconciled with the minimal pragmatic content identified by Hart, or with the conception that everyone will have forged for themselves at the end of this course. Nevertheless, the major questions announced at the beginning of the course remain: what to do when positive law, as adopted through the democratic procedures provided for this purpose, seems to clash with a principle considered essential for our rule of law? Several contemporary phenomena also prompt us to ask whether new forms of natural law are emerging. Page 67 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni The first is the ecological movement. Without going into detail, it is worth recalling that various initiatives around the world have led to the recognition of the legal personality, and therefore of subjective rights with legal action, of certain animals (an orangutan), plants or rivers (in the Amazon). The French philosopher Michel Serres has put these ideas into practice in a book entitled The Natural Contract, in which he defends the idea of a contract with nature: "Back to nature! This means: to the exclusively social contract, add a natural contract of symbiosis and reciprocity, where our relationship with things would leave control and possession for admiring listening, reciprocity, contemplation and respect, where knowledge would no longer presuppose ownership, nor would action presuppose control, nor would the latter presuppose their results or stercorary conditions. An armistice contract in objective warfare, a symbiotic contract: the symbiont admits the right of the host, whereas the parasite - our current status - condemns to death the one it plunders and inhabits without realising that in the end it condemns itself to disappear. The parasite takes everything and gives nothing; the host gives everything and takes nothing. The right to control and ownership is reduced to parasitism. On the contrary, the duty of symbiosis is defined by responsibility: as much as nature gives to man, man must give back to nature, which has become a subject of law". It is therefore no longer a question of natural law, but of the law of nature! The second is obviously the digital explosion. o In their book on digital justice, Antoine Garapon and Jean Lassègue pose the question in these terms: ‘Dans ce mythe de la délégation aux machines, le numérique est doté d’une dimension ontologique : les corrélations révèlent un état du monde qu’il faut accepter tel qu’il est et en confiance ; mieux, qui s’impose comme une norme pour évaluer le monde vécu. Le numérique s’apparente ainsi à un nouveau droit naturel interne au monde". The third issue is always at the centre of the news: the health situation caused by COVID19. In a recent text, François Ost puts the issue at stake in terms that refer directly to the naturalist argument: This is a good opportunity for debate, both inside and outside the classroom. Page 68 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Conclusion So what natural law? In the course of the course, everyone will have been able to form an opinion as to whether natural law exists or not, and if it does, what form of natural law they are convinced of. As already stated, this course is not intended to answer these questions, insofar as there is an answer. Here are two final excerpts, from a judgment delivered by the French Cour de cassation in 2000 (the famous Perruche judgment) and a judgment delivered by the Belgian Cour de cassation a few years later. In both cases, these supreme courts were confronted with the delicate problem of the "wrongful life action", i.e. the action brought by a child born with a disability against the doctor who failed to diagnose it, depriving the mother of the possibility of terminating her pregnancy. The harm claimed by the child bringing such an action is therefore that of being born. This is how the Court of Cassation resolved the issue: "Whereas, however, insofar as the faults committed by the doctor and the laboratory in the execution of the contracts with Mrs X... had prevented her from exercising her choice to terminate her pregnancy in order to avoid the birth of a child suffering from a handicap, the latter may claim compensation for the damage resulting from this handicap and caused by the faults retained". Following this judgment, the French legislator adopted a law prohibiting this type of action. The Belgian Court of Cassation, in 2014, considered that, since it is necessary to compare the current situation with the situation that would have been without the commission of the fault in order to determine the existence of damage, there is "no compensable damage within the meaning" of Articles 1382 and 1383 of the Civil Code "when the situation of the existence of a person with a disability has to be compared with its non-existence" : According to the Court, a life with a disability and a life without a disability can be compared to determine damage, but not a life with a disability and a non-existence. The question is obviously extremely controversial. What does it tell us, without getting into either the technical legal debate or the sensitive ethical issues? That, notwithstanding Dworkin, there may not always be a 'right' answer in law, although judges, in order to avoid a denial of justice, cannot leave a question unanswered. In these complex, difficult cases (but also in many others), it is impossible not to involve considerations external to positive law in the strict sense. Theories of natural law are a permanent invitation to question the laws that govern us, their purpose and their limits. If we cannot therefore give an absolute answer to the question of the existence of natural law and, a fortiori, to the question of its possible content, we can at least admit its function: not automatic legitimisation of positive law, nor systematic contestation of the latter, but the constant need to keep our senses (legal but also ethical) alert. Let us recall François Ost's image of natural law as the shadow of positive law: it follows it everywhere, lurking discreetly but always present. One could also speak of natural law as the 'bad conscience' of positive law. o Natural law, despite its ambivalent functions, therefore proves to be a necessary law to feed the discussion and to question positive law from the outside and in a critical way. The very idea of natural law thus fulfils an essential function that all lawyers should bear in mind: that of a watchdog. What does this watchdog look like, or should look like? How should it act? It is up to each of us to form our own opinion. Page 69 sur 73