Natural Law

Natural law is the idea that there are objective moral truths that can be discovered through reason,
rather than being based on religious doctrine or the will of a sovereign. This concept has been
debated by moral philosophers for centuries, with a revival of interest in recent decades.

Key Points:

- The idea of natural law is often invoked to make judgments about the morality of certain practices
or acts, such as abortion or same-sex marriage.

- Moral questions are central to political and legal debates, both domestically and internationally
through the establishment of human rights declarations and conventions.

- The revival of natural law theory suggests that we have not come closer to resolving these ethical
problems over the centuries.

John Finnis and Contemporary Natural Law Theory:

- Finnis rejects Hume's view that reason can only inform us on how to achieve our desires, not what
we ought to desire.

- Finnis proposes seven "basic forms of human flourishing" that constitute a worthwhile, valuable,
and desirable life: life, knowledge, play, aesthetic experience, sociability, practical reasonableness,
and "religion" (spiritual experience).

- These basic goods, combined with nine "basic requirements of practical reasonableness," comprise
the universal and immutable "principles of natural law."

- Finnis argues that these principles are self-evident and do not fall victim to Hume's critique of
deriving "ought" from "is."

- The overriding rationale of natural law theory is to establish "what is really good for human persons"
and to foster the common good of the community. (Finnis)

- Finnis develops a conception of justice based on the implications of the requirement to foster the
common good, which generates absolute obligations and natural rights. (Finnis)

Moral Dilemmas: Abortion and Euthanasia

- The issue of abortion is highly contentious, with Christian groups condemning it as the murder of a
potential human being and others viewing it as a fundamental right of a woman to control her own
body.

- The 1973 Roe v. Wade Supreme Court decision in the United States established the right of states to
prohibit abortion to protect the life of the fetus only in the third trimester, a delicate balance that
many Christian groups seek to overturn.

- European countries have sought to strike a balance between the sanctity of human life and a
woman's right over her own body through legislation. (Dworkin)

(Finnis, Natural Law and Natural Rights)Philosophy of Law

This section discusses the philosophical and legal issues surrounding the "right to die" and the
sanctity of life. It examines two court cases, one in England and one in the United States, that
illustrate the difficulty in resolving these complex moral and legal questions.
- The English case involved Anthony Bland, who was left in a persistent vegetative state after a
stadium accident. His doctors sought permission to withdraw his life support, which the court
ultimately allowed, prioritizing the right of self-determination over the right to life. (p. 22)

- The U.S. Supreme Court case of Cruzan upheld the state's interest in preserving life, in contrast to
the English court's decision. The judges struggled to reconcile the sanctity of life with the autonomy
of the patient. (p. 23)

- The existence of "living wills" can help alleviate the courts' burden in these agonizing situations, as
they allow individuals to stipulate their wishes for end-of-life care in advance. (p. 23)

Legal Positivism

This chapter outlines the key tenets of legal positivism, which rejects the natural law view that the
validity of law depends on its moral qualities. Legal positivists see law as originating from an
objectively verifiable source, rather than existing independently from human enactment.

Characteristics of Legal Positivism:

- Separates the "is" (what the law is) from the "ought" (what the law should be morally) (p. 25)

- Does not necessarily equate legal validity with moral acceptability - positivists may still criticize and
seek to reform unjust laws (p. 26)

- Focuses jurisprudential inquiry on explaining and accounting for the principal features of the law,
rather than moral evaluation (p. 29)

Bentham vs. Austin:

- Bentham's broader view includes "laws by analogy" and "laws by metaphor" beyond just "positive
laws" (p. 29)

- Austin's narrower focus is on "positive laws" as commands of a sovereign (p. 29-30)

- Bentham sees commands as one of four ways the sovereign enacts law, while Austin defines law
solely in terms of sovereign commands (p. 30)

- Austin's insistence on an identifiable, omnipotent sovereign is problematic for legal systems with
constitutional limits or divided powers (p. 31)

- Austin's linking of duty to sanction has been criticized, though he may have just been seeking to
formally define when a legal duty exists (p. 31-32)

(p. 25-32)

Natural Law

This section provides background on the natural law tradition, tracing its origins to thinkers like St.
Augustine and St. Thomas Aquinas. Natural law holds that there is a moral dimension to the validity
of law, derived through reason.

Key Aspects of Natural Law:

- St. Augustine's view that states without justice are "robber bands enlarged" (p. 4)

- St. Thomas Aquinas' four categories of law: eternal, natural, divine, and human (p. 4)
- Aquinas' argument that natural law represents humanity's participation in the eternal law of divine
providence (p. 4)

- Natural law as the principles of practical rationality by which human action is judged (p. 4)

Criticism of Legal Positivism:

- Some natural lawyers see legal positivism as "philosophical taxidermy" that drains the law of its
moral substance (p. 5)

- Positivists are accused of trivializing and distorting the law in their zeal to demystify it (p. 5)

(p. 4-5)Legal Positivism

Description:

This section covers the legal positivist views of H.L.A. Hart and Hans Kelsen, as well as the perspective
of Joseph Raz. It discusses the key tenets of legal positivism, including the distinction between law
and morality, the role of social practices and institutions in defining law, and the concept of the "basic
norm" or "rule of recognition" that underlies a legal system.

Key Points:

- H.L.A. Hart's Positivism

- Law as a social phenomenon, not just coercive commands (unlike Bentham and Austin)

- Existence of "minimum content of natural law" based on human vulnerabilities and limitations (e.g.
limited altruism, resources, understanding)

- Distinction between "being obliged" and "having an obligation" - obligation requires a rule

- Three types of secondary rules: rules of change, adjudication, and recognition

- Rule of recognition as the fundamental constitutional rule that determines legal validity (p. 35-38)

- Legal system requires general obedience to valid rules and acceptance of secondary rules by officials
(p. 38)

- Hans Kelsen's "Pure Theory of Law"

- Law as a system of "oughts" or norms, not just legal acts

- Grundnorm or "basic norm" as the formal, presupposed foundation of the legal system (p. 41-42)

- Validity of norms depends on their connection to the basic norm, not on moral considerations

- Effectiveness of the legal system as a whole is a necessary condition for the validity of its norms (p.
42)

- Basic norm changes after a successful revolution (p. 42-43)

- Joseph Raz's "Hard" Positivism

- Law is autonomous and can be identified through social facts, without reference to morality (p. 43-
44)

- Three criteria for identifying a legal system: efficacy, institutional character, and sources (p. 44)
- Rejection of moral and semantic theses - no inherent moral merit or shared meaning of normative
terms (p. 44-45)

- Argument against a general moral obligation to obey the law (p. 45)

(Quotes from pages 35-38, 41-42, 43-45)Philosophy of Law: Law and Values

This section discusses the relationship between law and values, and the importance of openly
acknowledging the values underlying legal theory and jurisprudence. It argues that failing to confront
and account for the values involved in the law is ideological, as it conceals the value-orientation of
legal interpretation. Honest interpretation that is open about the values it presupposes and is alert to
both system-successes and system-failures is the best objectivity available in the human sciences,
including jurisprudence.

- The fear that reference to value deprives legal theory of its scientific character is unfounded (p. 305)

- Law schools would be purveyors of ideology, not disseminators of knowledge, if law were devoid of
values (p. 305)

- Jurisprudence would be an exercise in legitimation of the actual state and its mode of government if
it lacked values (p. 305)

- Law professors would be mere apologists for the established order if they did not openly confront
and account for the values involved in the law (p. 305)

- Human artifacts and contrivances, including rules, must be understood functionally - what is their
point, their final cause? (p. 305)

- Failure to confer work about law an apparently greater objectivity than if a proper openness about
values were practiced (p. 305)

- Concealment of value-orientation, not its open avowal, is ideological in a sinister sense (p. 305)

- Honest interpretation that is open about the values it presupposes and is alert to both system-
failures and system-successes is the best objectivity available in the human sciences, including
jurisprudence (p. 305)

Dworkin: The Moral Integrity of Law

This section outlines Ronald Dworkin's critique of legal positivism and his alternative theory of law as
an interpretive process where individual rights are paramount.

Dworkin's Critique of Legal Positivism:

- Dworkin is the most tenacious critic of legal positivism, especially H.L.A. Hart's version of it (p. 48)

- Dworkin insists that "law is effectively integrated with morality" and that lawyers and judges are
"working political philosophers" (p. 48)

- Dworkin's theory includes an account of law and the legal system, the place of morals in law, the
importance of individual rights, and the nature of the judicial function (p. 48)

- Dworkin's ideas have sparked a huge critical literature and continue to exert considerable authority,
especially in the US, whenever contentious moral and political issues are debated (p. 48-49)

Dworkin's Theory of Law:

- Dworkin regards law as an interpretive process under which individual rights are paramount (p. 49)

- Dworkin contests the positivist view that when a judge faces a "hard case" with no determinable
rule, they exercise discretion to decide the case (p. 50)

- Dworkin argues that in "hard cases", the judge can find an answer by interpreting the existing legal
materials and giving voice to the values to which the legal system is committed (p. 50-51)

- Dworkin's concept of "law as integrity" rejects both conventionalism and pragmatism as inadequate
accounts of law and the judicial function (p. 54-55)

- Dworkin claims that law contains principles and policies, not just rules, and that principles
describing rights have "threshold weight" against community goals (p. 55)

- The ideal Dworkinian judge, "Hercules", must construct a coherent scheme of principles that
justifies all common law precedents, constitutional provisions, and statutes (p. 56)

- Dworkin argues that the basis of legal validity cannot be determined solely by the standards
contained in the rule of recognition, as positivists claim (p. 57)

Dworkin's Liberalism:

- Dworkin's rights thesis is based on a form of liberalism derived from the view that "government
must treat people as equals" (p. 57-58)

- Dworkin's analysis of political morality has three ingredients: justice, fairness, and procedural due
process (p. 58)

- Dworkin's purpose is to "define and defend a liberal theory of law" as a defense against the advance
of instrumentalism upon individual rights and liberty (p. 58)

Law as Literature:

- A key component of Dworkinian legal theory is its claimed affinity to literary interpretation (p. 58)

- Dworkin argues that interpreting a work of art involves trying to accurately portray the intentions of
the author (p. 58)

(pp. 48-58)Natural Law

This section discusses the concept of natural law, which holds that there are certain moral and ethical
principles that are inherent in the nature of the universe and that should guide human behavior and
the structure of society. It traces the history of natural law theory from Blackstone to Aquinas, and
examines how it has been used to justify revolutions and political change.

- Blackstone (1723-1780) argued that English law derives its authority from natural law, though his
account of the law was not actually informed by natural law theory. (p. 9)

- Bentham criticized natural law as a "mere work of the fancy". (p. 9)

- Aquinas is associated with a conservative view of natural law, but the principles of natural law have
been used to justify revolutions, such as the American and French revolutions, on the grounds that
the law infringed on individuals' natural rights. (p. 9)

- The Declaration of Independence and the French Déclaration des droits de l'homme et du citoyen
both appealed to the idea of "natural rights" as the basis for political change. (p. 9)
- Natural law was also applied in the form of contractarian theories that conceive of political rights
and obligations in terms of a social contract, which remains influential in liberal thought, such as in
John Rawls's theory of justice. (p. 9-10)

Natural Rights: Hobbes, Locke, and Rousseau

This section discusses the ideas of several key Enlightenment thinkers on the concept of natural
rights.

- Thomas Hobbes (1588-1679) argued that in the state of nature, life is "solitary, poor, nasty, brutish
and short", and that law and government are necessary to protect order and security. (p. 10)

- Hobbes believed that under the social contract, we must surrender our natural freedom in order to
create an orderly society, and that every action we perform is ultimately self-serving. (p. 10)

- Hobbes argued that our natural equality and tendency toward discord and competition in the state
of nature leads to a perpetual "war of all against all", and that peace is the first law of nature to
escape this horror. (p. 10)

Rights and Justice

This section discusses the concept of rights, including Hohfeld's analysis of different types of rights,
and the prominence of rights-based theories in contemporary political and legal debate.

- Hohfeld identified four types of rights: claim rights, privileges, powers, and immunities, each with
their own "opposites" and "correlatives". (p. 67)

- Hohfeld's analysis has been influential, though it has limitations, as it is not always true that a duty
implies a corresponding right in someone else. (p. 67-68)

- Rights-based theories, which hold that individuals have certain fundamental rights that should be
protected, have had a significant impact, as seen in the civil rights movement and the collapse of
apartheid. (p. 68-69)

- The concept of human rights, which holds that all humans are entitled to certain inalienable rights
merely by virtue of being human, has become prominent in contemporary political and legal debate.
(p. 69-70)

- Human rights have evolved through three generations: first-generation negative civil and political
rights, second-generation positive economic, social, and cultural rights, and third-generation
collective rights. (p. 70)