Week 4 Slides PDF

NATURAL LAW NATURAL LAW THEORIES WESSEL LE ROUX SEMESTER TEST INFORMATION Date and Time : Tuesday 16 Apr 2024 17:30 - 19:00 OPEN BOOK TEST Only a hard copy reader is allowed. No class notes, additional texts, extra sheets of paper or post-its will be allowed in the venue. Highlights and notes writte...

NATURAL LAW NATURAL LAW THEORIES WESSEL LE ROUX SEMESTER TEST INFORMATION Date and Time : Tuesday 16 Apr 2024 17:30 - 19:00 OPEN BOOK TEST Only a hard copy reader is allowed. No class notes, additional texts, extra sheets of paper or post-its will be allowed in the venue. Highlights and notes written on the reader are permitted. ANY extra pieces of paper found in a reader will be regarded as cheat notes and treated as ACADEMIC DISHONESTY. COLLECT YOUR READER ASAP Readers may be collected from Academic Associates during their consultation hours, in their office (Law 2-33) THEORISING LAW NATURAL LAW LEGAL REALISM LEGAL POSITIVISM LE ROUX “NATURAL LAW THEORIES” STUDY PAGES 25 – 47 ONLY NATURAL LAW Natural law can be defined as idea of a higher moral law that positive law must be measured against and must not violate Natural here denotes something that is independent of human will (not human-created) Natural Law thinking is concerned with moral and philosophical principles to guide human action (political action and decisions, law-making; adjudication; personal conduct) NOTE: be aware of distinction between laws of nature; natural rights; and natural law FOCUS: elaboration of NL thinking in Western philosophy Key shifts in natural law thinking happen in three periods: ANCIENT -> MEDIEVAL -> MODERN TWO GREAT QUESTIONS IN NATURAL LAW THEORY HOW DO WE DISCOVER THE NATURAL LAW? Ancient / classical NL: eternal order of the universe (cosmological) Medieval / Christian NL: divine will / will of God Modern / secular NL: necessary conditions of human life / reason WHAT IS THE STATUS OF HUMAN LAW THAT VIOLATES NATURAL LAW? Not morally binding (duty to challenge) Not legally binding (no duty to obey) GRECO-ROMAN / ANCIENT / CLASSICAL NATURAL LAW “Natural law is just law, and just law is that which is in harmony with the universal laws of nature” Universal law = same everywhere ; not dependent upon human acceptance Telelogical conception of NL (Cf: Sophist challenge ) Nature (including human existence) is determined by an overall design [supernatural / cosmological / metaphysical] – not random but has a specific purpose. E.g. acorn seed analogy Order of nature contained the universal law (and thus imbued with the good, the just and the Right) Universal law also tell us how to live and how states should function PLATO The Republic Nature has an Ideal Form that can be properly realized under the rule of the philosopher kings Philosopher kings possess wisdom to create a perfectly rational and just order (only they can discover nature) “Dualistic” – the world of eternal (pure) forms v the real world (imitation) It is in the world of eternal Forms and Ideas where “nature” and therefore justice and morality lie [CF “cave allegory”] ARISTOTLE Nicomachean Ethics Rejects dualism – return to nature Everything in nature (things and people) corresponds with a telos (+ the telos of humans is to live a rational life of virtue and goodness) = their nature Solving human affairs requires phronesis (prudence / practical wisdom) Role of the judge is to discover (via phronesis) the dikaion (the Right) – the just solution contained in the intrinsic order of nature The dikaion - discovered with reference to telos of the thing in RECEPTION OF NATURAL LAW IN ROME Roman jurists and orators received the natural law tradition followed mainly the Aristotelian tradition (but heavily influenced by the Stoics) Stoics: all reality was pervaded by a divine force/cosmic order or Logos (universal reason) which ordered all things Logos is to be found in “reason” of all beings (inner state of mind in harmony with the Logos which included rational self-control). Natural Law discoverable through overcoming passions via rational self-control (reason can reveal nature) Natural law = moral law, universal and binding HUMAN REASON REPLACES NATURE AS SOURCE OF NATURAL LAW CHRISTIAN / MEDIEVAL NATURAL LAW Introduces Christian God at the center of telelogical natural law Omnipotent, omniscient and rational creator – source of higher law to which all creatures are subject Universe ordered by a divine plan and all things have a divinely ordered purpose Natural law flows from all being made in god’s image – to live natural law is to manifest that image in life and conduct “[T]here is no law above God. God is creator of the universe and all its laws” ST AUGUSTINE OF HIPPO Replaces impersonal cosmic reason with the reason of a purposeful and personal God Lex aertena (eternal = God’s law) “commands the natural order of things” (136/137) Human reason only capable of an imperfect understanding of eternal law – thus lex naturalis Human-made laws (application and elaboration of natural law) must serve the natural law and thus the eternal law Human law is made to prevent worst excesses of human wickedness and weakness Unjust laws (= at odds with NL) create no legal or moral obligation ST THOMAS OF AQUINAS The natural order of the world is ordained and controlled by God Eternal law: govern the universe (scientific and moral); not fully knowable Natural law: human participation in the eternal law through God-given reason Divine law: codified in Scripture and authoritative texts of the Church; not enforced by State Human law: custom and legislative acts of the state; logically derived from natural law Authority of God supersedes secular authority of government etc WI L L I AM OF OC KH AM AND TH E END OF NATUR AL L AW ? Key thinker in theological debates in 13th – 17th century Ockham – set in motion the dissolution of the cosmological tradition in Roman law thinking Nominalist : rejects abstract concepts and universals (= just words) God’s will is both free and absolute = no eternal or natural law that binds God. God’s will can alter nature itself. Thus for Ockham: humans also cannot have access to the eternal law through rational knowledge (only faith!) (Contra Aquinas and Augustine) / humans can only know empirical things through finite human reason RISE OF SECULAR / MODERN NATURAL LAW 17th and 18th century saw emergence of secular (nonreligious) natural law – in the form of natural rights social contract theories The Enlightenment led to repudiation of traditional authority, mysticism (superstition) and orthodoxy – and thus created the need for a new universal foundation for law Modern natural law theories based on two principles: 1. Human beings have natural needs (protection from harm; material resources; freedom) 2. Human beings are social creatures – live in relation with others Thus need laws to regulate and protect individuals to be able to fulfil their needs and pursue individual life ends without harm THOMAS HOBBES Leviathan Starting point: humans start off in a “state of nature” that is characterized as a brutish existence of war, violence, poverty and isolation; devoid of justice To correct this, a sovereign power based on reason and passion is needed to respond to this cruel and amoral world that we live in the state of nature [Cf: legal positivism] Hobbes develops “laws of nature”- mainly (1) seek peace and (2) enter into social contract Natural law as he defines it prohibits any practices that might signal a return to the state of nature (natural law = blueprint for survival) Social contract = citizens give up power (through their rights) to the State which thereafter has sovereign power to define the right and just JOHN LOCKE Re-interprets natural law in terms of inalienable, prepolitical (or natural) rights (Hence: “father of human rights in the Western tradition”) Natural law thus provides an objective moral limit on State power and positive law – thus giving birth to the modern theory of human rights [contra Hobbes] In Locke’s version, the state of nature is a state of perfect freedom, rationality and equality. Thus natural law provides us with natural rights Pre-political rights to life, limb, liberty and property. = do not depend on a lawmaker/political authority; they are intrinsic to human existence. These rights are “negative” – they protect people from interference and violation People enter into a social contract: because of need for a central authority (civil government) to govern disputes, interpret law and to protect and enforce natural law/right MAJOR SHIFTS IN NATURAL LAW THINKING Classical / Antigone → modern/ struggle lawyers External → internal Objective → subjective Cosmos → individual Prescribed duty → freedom THE PIVOTAL SHIFT IS FROM CLASSICAL NATURAL LAW (OBJECTIVE DUTY TO ADHERE TO THE HIGHER LAWS OF JUSTICE AND THE GODS) TO MODERN NATURAL LAW (INNER CONSCIENCE OF ALL HUMANS TO RESPECT HUMAN RIGHTS) NEXT Positivism (as a response to natural law, arising at the moment of the decline of the natural law tradition in the modern period) Legal realism (critique of formalism / positivism) READ VAN BLERK ALSO REVISIT NUNN