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Jurisprudence Project Semester V
Jurisprudence Project Semester V
Jurisprudence Project Semester V
THEORY
SUBMITTED TO: MISS ANUKRITI MISHRA
SUBMITTED BY: SARA PARVEEN
SEMESTER V
ROLL NO. 130
ACKNOWLEDGEMENT
I feel highly elated to work on this dynamic topic of A Criticism of Natural Law Theory. I want
to make it clear that I am not a master in the subject, but, I have tried my level best to give a
clear picture. This project, however, does not deal with the topic exhaustively.
Not to forget the deep sense of regard and gratitude to my advisor, Ma'am Anukriti Misra who
has played the role of a protagonist, who has always given me guidance to go ahead with my
topic. I also take up this opportunity to thank my colleagues for helping me in completing this
project. I also thank Librarian HNLU, Raipur, for assisting me and allowing me to use the library
of the University.
Finally I would like to thank God, the Almighty without whose blessings this project would
never have been a success.
Sara Parveen
Semester V
TABLE OF CONTENTS
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TABLE OF CONTENTS
INTRODUCTION
RESEARCH METHODOLOGY
OBJECTIVES
CONCLUSION
BIOBLIOGRAPHY
INTRODUCTION
Law is, generally, a system of rules which are enforced through social institutions to govern
behavior, although the term "law" has no universally accepted definition.[3] Laws can be made by
legislatures through legislation (resulting in statutes), the executive through decrees
and regulations, or judges through binding precedents (normally in common law jurisdictions).
Private individuals can create legally binding contracts, including (in some jurisdictions)
arbitration agreements that exclude the normal court process. The formation of laws themselves
may be influenced by a constitution (written or unwritten) and the rights encoded therein. The
law shapes politics, economics, and society in various ways and serves as a mediator of relations
between people.1
http://en.wikipedia.org/wiki/Law
of the conceptual naturalist idea that there are necessary substantive moral constraints on the
content of law. Lastly, Ronald Dworkins theory is a response and critique of legal positivism.
All of these theories subscribe to one or more basic tenets of natural law legal theory and are
important to its development and influence.2
RESEARCH METHODOLOGY
This Doctrinal research is descriptive and analytical in nature. Secondary and Electronic
resources have been largely used to gather information and data about the topic.
Books and other reference as guided by Faculty have been primarily helpful in giving this project
a firm structure. Websites, dictionaries and articles have also been referred.
Footnotes have been provided wherever needed, to acknowledge the source.
OBJECTIVES
http://www.iep.utm.edu/natlaw/
First, moral propositions have what is sometimes called objective standing in the sense
that such propositions are the bearers of objective truth-value; that is, moral propositions
can be objectively true or false. Though moral objectivism is sometimes equated with
moral realism (see, e.g., Moore 1992, 190: "the truth of any moral proposition lies in its
correspondence with a mind- and convention-independent moral reality"), the
relationship between the two theories is controversial. Geoffrey Sayre-McCord (1988),
for example, views moral objectivism as one species of moral realism, but not the only
form; on Sayre-McCord's view, moral subjectivism and moral intersubjectivism are also
forms of moral realism. Strictly speaking, then, natural law moral theory is committed
only to the objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the claim that
standards of morality are in some sense derived from, or entailed by, the nature of the
world and the nature of human beings. St. Thomas Aquinas, for example, identifies the
rational nature of human beings as that which defines moral law: "the rule and measure of
human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II,
Q.90, A.I). On this common view, since human beings are by nature rational beings, it is
morally appropriate that they should behave in a way that conforms to their rational
nature. Thus, Aquinas derives the moral law from the nature of human beings (thus,
"natural law").
But there is another kind of natural law theory having to do with the relationship of morality to
law. According to natural law theory of law, there is no clean division between the notion of law
and the notion of morality. Though there are different versions of natural law theory, all
subscribe to the thesis that there are at least some laws that depend for their "authority" not on
some pre-existing human convention, but on the logical relationship in which they stand to moral
standards. Otherwise put, some norms are authoritative in virtue of their moral content, even
when there is no convention that makes moral merit a criterion of legal validity. The idea that the
concepts of law and morality intersect in some way is called the Overlap Thesis.
As an empirical matter, many natural law moral theorists are also natural law legal theorists, but
the two theories, strictly speaking, are logically independent. One can deny natural law theory of
law but hold a natural law theory of morality. John Austin, the most influential of the early legal
positivists, for example, denied the Overlap Thesis but held something that resembles a natural
law ethical theory.
But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that which is
promulgated by human beings) is valid only insofar as its content conforms to the content of the
natural law; as Aquinas puts the point: "[E]very human law has just so much of the nature of law
as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no
longer a law but a perversion of law" (ST I-II, Q.95, A.II). To paraphrase Augustine's famous
remark, an unjust law is really no law at all.The idea that a norm that does not conform to the
natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William
Blackstone describes the thesis, "This law of nature, being co-eval with mankind and dictated by
God himself, is of course superior in obligation to any other. It is binding over all the globe, in
all countries, and at all times: no human laws are of any validity, if contrary to this; and such of
them as are valid derive all their force, and all their authority, mediately or immediately, from
this original" (1979, 41). In this passage, Blackstone articulates the two claims that constitute the
theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict
with the natural law; and 2) all valid laws derive what force and authority they have from the
natural law.
Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis
distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship,
religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in
the sense that it should, given human nature, be valued for its own sake and not merely for the
sake of some other good it can assist in bringing about. Moreover, each of these goods is
universal in the sense that it governs all human cultures at all times. The point of moral
principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral
principles enable us to select among competing goods and to define what a human being can
permissibly do in pursuit of a basic good.
Fuller's functionalist conception of law implies that nothing can count as law unless it is capable
of performing law's essential function of guiding behavior. And to be capable of performing this
function, a system of rules must satisfy the following principles:
(P6) the rules must not require conduct beyond the powers of the affected parties;
(P7) the rules must not be changed so frequently that the subject cannot rely on them; and
(P8) the rules must be administered in a manner consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can
achieve law's essential purpose of achieving social order through the use of rules that guide
behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior
because people will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are "internal" to law in the sense that they are built into the
existence conditions for law.
These internal principles constitute a morality, according to Fuller, because law necessarily has
positive moral value in two respects: (1) law conduces to a state of social order and (2) does so
by respecting human autonomy because rules guide behavior. Since no system of rules can
achieve these morally valuable objectives without minimally complying with the principles of
legality, it follows, on Fuller's view, that they constitute a morality. Since these moral principles
are built into the existence conditions for law, they are internal and hence represent a conceptual
connection between law and morality. Thus, like the classical naturalists and unlike Finnis,
Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual
naturalist.
On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy
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conflict with morality, as they do in the case of poisoning, it follows that they are distinct from
moral standards. Thus, while Hart concedes that something like Fuller's eight principles are built
into the existence conditions for law, he concludes they do not constitute a conceptual
connection between law and morality.
Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral
ideals of fairness. For example, public promulgation in understandable terms may be a necessary
condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce
rules that have not been publicly promulgated in terms reasonably calculated to give notice of
what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive
rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its
internal standards of efficacy, but such standards are distinguishable from the principles of
legality in that they conflict with moral ideals.
Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles
of efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent
with considerable divergence from the principles of legality. Legal standards, for example, are
necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And
officials all too often fail to administer the laws in a fair and even-handed manner even in the
best of legal systems. These divergences may always be prima facie objectionable, but they are
inconsistent with a legal system only when they render a legal system incapable of performing its
essential function of guiding behavior. Insofar as these principles are built into the existence
conditions for law, it is because they operate as efficacy conditions and not because they function
as moral ideals.
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idea here is that what ultimately explains the validity of a law is the presence of certain social
facts, especially formal promulgation by a legislature.
The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts
giving rise to legal validity are authoritative in virtue of a social convention. On this view, the
criteria that determine whether or not any given norm counts as a legal norm are binding because
of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is
authoritative in virtue of the conventional fact that it was formally ratified by all fifty states.The
Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis;
according to the Separability Thesis, there is no conceptual overlap between the notions of law
and morality. As Hart more narrowly construes it, the Separability Thesis is "just the simple
contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands
of morality, though in fact they have often done so" (Hart 1994, 185-186).
Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards
the authority of which cannot be explained in terms of social facts. In deciding hard cases, for
example, judges often invoke moral principles that Dworkin believes do not derive
their legal authority from the social criteria of legality contained in a rule of recognition.
In Riggs v. Palmer, for example, the court considered the question of whether a murderer could
take under the will of his victim. At the time the case was decided, neither the statutes nor the
case law governing wills expressly prohibited a murderer from taking under his victim's will.
Despite this, the court declined to award the defendant his gift under the will on the ground that
it would be wrong to allow him to profit from such a grievous wrong. On Dworkin's view, the
court decided the case by citing "the principle that no man may profit from his own wrong as a
background standard against which to read the statute of wills and in this way justified a new
interpretation of that statute" (Dworkin 1977, 29).
On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal standards
when it considered this principle. For the Riggs judges would "rightfully" have been criticized
had they failed to consider this principle; if it were merely an extralegal standard, there would be
no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly,
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Dworkin concludes that the best explanation for the propriety of such criticism is that principles
are part of the law.
living came into existence at the exact same time with perfect relations between one another,
after which the living things evolved in perfect co-ordination between themselves without there
ever developing a conflict in the relations, and all this by sheer coincidence! This is so utterly
unimaginable that one must say he who denies God must also deny the existence of relations
between things; so, he must deny natural law theory in its entirety.
While agnosticism accepts the existence of a Creator, it refuses to research His reality deeply
who He is, why He created creation, et cetera. This position can only be justified if one assumes
that He did not intend anything with His creation and has, since creation, completely
disconnected Himself from His creation, as if He does not care about how His creation proceeds
in the existence He has given. Natural law theory stands diametrically opposed to this view, as it
claims existence has a purpose. As explained, a purpose can only be given to existence by a
Creator. The presence of a purpose for creation therefore implies that the Creator did not
disconnect from his Creation after creating, as He set for it a course. Therefore, neither the
atheist nor the agnostic can accept natural law theorywhich, by the way, proves Grotius was
wrong when he said, What we have been saying would have a degree of validity even if we
should concede that which cannot be conceded without the utmost wickedness, that there is no
God, or that the affairs of men are of no concern to him. How strange it is, therefore, that
western civilizationwhich refuses God to play an active role in determining the life of
man,today is the ideology of the atheists and the agnosticsutilizes natural law theory.
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goal of his life; hence, he will experience happiness in life. Also explained earlier is why this is
an implicit acknowledgement of the existence of a Creatorpurpose and relations prove his
existence obligatory.
What natural law theory is effectively saying, therefore, is that the human mind can find the
purpose given to life by the Creator of life simply by looking at the natural inclinations of
creation. Clearly, this idea assumes that satisfaction of the natural inclinations of creation is the
purpose with which the Creator created existence. What is the proof for this? In the absence of
revelation, there is none. The assumption Because man has natural inclinations, it must be his
purpose in life to satisfy these inclinations is purely speculative. It can also be imagined that
the Creator intended (some of) the natural inclinations of creation to be a test for creationthat
the Creator really wants man to abstain from (some of) what he inclines to. This in turn means
the natural law theory does not have the ability to convince the mind becausebased on these
assumptionsit lacks a rational argument. Natural law theory can only be believed, then, as one
would believe in Christianity or Judaism or Hinduism. So, the truth of the matter is, if one
accepts as fact the existence of a Creator, then one must accept as fact that only the Creator
knows with certainty what He intended with His creation. That only He knows with certainty
how He wants His creation to proceed in its life. In the absence of a revelationas in,
information flowing from the Creator to creationcreation can only speculate about all this.
Natural law theory is not internally consistent, as its conclusion (the mind can determine natural
law) is not lined with its implied assumptions (there is a Creator who cares about creation).
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http://www.newcivilisation.com/home/2358/ideas-philosophy/a-critique-of-natural-law-theory/
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CONCLUSION
Also to say that human laws which conflict with the Divine law are not binding, that is to say,
are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are
most opposed to the will of God, have been and are continually enforced as laws by judicial
tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign
under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to
the sentence, that it is contrary to the law of God, who has commanded that human lawgivers
shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have
impugned the validity (Austin 1995, 158).
Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is
always possible for a court to enforce a law against a person that does not satisfy Austin's own
theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the possibility of
moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for
legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the
legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey
Murphy (1990, 18) put the point:
The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate
the law and determine our moral obligations with respect to the law) are actually rendered more
difficult by its collapse of the distinction between morality and law. If we really want to think
about the law from the moral point of view, it may obscure the task if we see law and morality as
essentially linked in some way. Moral criticism and reform of law may be aided by an initial
moral skepticism about the law.
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There are a couple of problems with this line of objection. First, conceptual naturalism does not
foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can
plausibly be claimed that the content of a norm being enforced by society as law does not
conform to the natural law, this is a legitimate ground of moral criticism: given that the norm
being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not
legally valid. Thus, the state commits wrong by enforcing that norm against private citizens.
Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law
by pointing to its practical implications a strategy that seems to commit a category mistake.
Conceptual jurisprudence assumes the existence of a core of social practices (constituting law)
that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is
to articulate the concept of law in a way that accounts for these pre-existing social practices. A
conceptual theory of law can legitimately be criticized for its failure to adequately account for
the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative
quality or its practical implications.
A more interesting line of argument has recently been taken up by Brian Bix (1996). Following
John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual
naturalists, arguing instead that the claim that an unjust law is not a law should not be taken
literally:
A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust
laws are not laws "in the fullest sense." As we might say of some professional, who had the
necessary degrees and credentials, but seemed nonetheless to lack the necessary ability or
judgment: "she's no lawyer" or "he's no doctor." This only indicates that we do not think that the
title in this case carries with it all the implications it usually does. Similarly, to say that an unjust
law is "not really law" may only be to point out that it does not carry the same moral force or
offer the same reasons for action as laws consistent with "higher law" (Bix 1996, 226).
Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- naturalism
of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be made
in favor of Bix's view, the long history of construing Aquinas and Blackstone as conceptual
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naturalists, along with its pedagogical value in developing other theories of law, ensures that this
practice is likely, for better or worse, to continue indefinitely.
Founded in our nature and revealed to us by our reason, the moral law is known to us in the
measure that reason rings a knowledge of it home to our understanding. The question arises:
How far can man be ignorant of the natural law, which, as St. Paul says, is written in
the human heart (Romans 2:14). The general teaching of theologians is that the supreme and
primary principles are necessarily known to everyone having the actual use of reason. These
principles are really reducible to the primary principle which is expressed by St. Thomas in
the form: "Do good and avoid evil". Wherever we find man we find him with a moral code,
which is founded on the first principle that good is to be done and evil avoided. When we pass
from the universal to more particular conclusions, the case is different. Some follow immediately
from the primary, and are so self-evident that they are reached without any complex course of
reasoning. Such are, for example: "Do not commit adultery"; "Honour your parents".
No person whose reason and moral nature is ever so little developed can remain in ignorance of
such precepts except through his own fault. Another class of conclusions comprises those which
are reached only by a more or less complex course of reasoning. These may remain unknown to,
or be misinterpreted even by persons whose intellectual development is considerable. To reach
these more remote precepts, many facts and minor conclusions must be correctly appreciated,
and, in estimating their value, a person may easily err, and consequently, without moral fault,
come to a false conclusion.
A few theologians of the seventeenth and eighteenth centuries, following some older ones,
maintained that there cannot exist in anyone practical ignorance of the natural law. This opinion
however has no weight .Theoretically speaking, man is capable of acquiring a full knowledge of
the moral law, which is, as we have seen, nothing but the dictates of reason properly
exercised. Actually, taking into consideration the power of passion, prejudice, and other
influences which cloud the understanding or pervert the will, one can safely say that man,
unaided by supernatural revelation, would not acquire a full and correct knowledge of the
contents of the natural law . In proof we need but recall that the noblest ethical teaching
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of pagans, such as the systems of Plato, Aristotle, and the Stoics, was disfigured by
its approbation of shockingly immoral actions and practices.
As the fundamental and all-embracing obligation imposed upon man by the Creator, the natural
law is the one to which all his other obligations are attached. The duties imposed on us in
the supernatural law come home to us, because thenatural law and its exponent, conscience, tell
us that, if God has vouchsafed to us a supernatural revelation with a series of precepts, we are
bound to accept and obey it. The natural law is the foundation of all human law inasmuch as it
ordains that man shall live in society, and society for its constitution requires the existence of an
authority, which shall possess the moral power necessary to control the members and direct them
to the common good. Human laws are valid and equitable only in so far as they correspond with,
and enforce or supplement the natural law; they are null and void when they conflict with it.
Logically, chronologically, and ontologically antecedent to all human society for which it
provides the indispensable basis, the natural or moral law is neitheras Hobbes, in anticipation
of the modern positivistic school, taughta product of social agreement or convention, nor a
mere congeries of the actions, customs, and ways of man, as claimed by the ethicists who,
refusing to acknowledge the First Cause as a Personality with whom one entertains
personal relations, deprive the law of its obligatory basis. It is a true law, for through it the
Divine Mind imposes on the subject minds of His rational creatures their obligations and
prescribes their duties.4
http://www.newadvent.org/cathen/09076a.htm
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BIBLIOGRAPHY
o
o
http://www.newadvent.org/cathen/09076a.htm
http://www.iep.utm.edu/natlaw
o
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http://www.newcivilisation.com/home/2358/ideas-philosophy/a-critique-of-natural-law-theory/
http://en.wikipedia.org/wiki/Law
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