Natural Law Theory

The Case of Speluncean Explorers, Fuller

Supreme Court of Newgarth [this is about a fictitious case decision by the Supreme Court
of a fictitious country, Newgarth]

The Law: ‘Whoever shall unlawfully take the life of another shall be punished
by death”

CJ Truepenny: according to the word of the statute….but will be hard on the defendants
so
appeal to the Chief Executive for Clemency

J Foster,

Positive law of Newgarth was inapplicable, as defendants were governed by the law of
nature. Positive law is predicated on the possibility of men’s co-existence within society,
and when a situation occurs in which that co-existence becomes impossible, then the
force of the positive law disappears.

Like geographical/territorial jurisdiction it was beyond the state.

How about cost benefit analysis? We calculate how many lives it will cost to make roads
yet we continue making roads thinking cost of few lives is outweighed by the road.

Further, defendant did not violate the spirit of the law. Self defense. Purposive
interpretation.

The stupidest housemaid knows that when she is told "to peel the soup and
skim the potatoes" her mistress does not mean what she says. She also knows
that when her master tells her to "drop everything and come running" he has
overlooked the possibility that she is at the moment in the act of rescuing the
baby from the rain barrel. Surely we have a right to expect the same modicum
of intelligence from the judiciary. The correction of obvious legislative errors
or oversights is not to supplant the legislative will, but to make that will
effective.

J Tatting:

Was not satisfied with both the justices and withdrew from the case.

If these men passed from the jurisdiction of our law to that of "the law of nature," at
what moment did this occur?

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College.
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Mr. Justice Foster and I are the appointed judges of a court of the Commonwealth of
Newgarth, sworn and empowered to administer the laws of that Commonwealth. By
what authority do we resolve ourselves into a Court of Nature?

It is true that a statute should be applied in the light of its purpose, and that one of
the purposes of criminal legislation is recognized to be deterrence. The difficulty is
that other purposes are also ascribed to the law of crimes. It has been said that one
of its objects is to provide an orderly outlet for the instinctive human demand for
retribution.

Have scarcely slept for so many days. I want to say what Justice Foster said but
intellectual problem with that.

J Keen

Enforce positive law, it is not the duty of judge to recommend for clemency.

To put it bluntly, my brothers do not like the fact that the written law requires the
conviction of these defendants. Neither do I, but unlike my brothers I respect the
obligations of an office that requires me to put my personal predilections out of my
mind when I come to interpret and apply the law of this Commonwealth.

My brother Foster's penchant for finding holes in statutes reminds one of the
story told by an ancient author about the man who ate a pair of shoes. Asked
how he liked them, he replied that the part he liked best was the holes. That
is the way my brother feels about statutes; the more holes they have in them
the better he likes them. In short, he doesn't like statutes.

We don't know the purpose of the statute. Killing is wrong, just like it. We don't have to
know the purpose to know it is wrong.

J Handy

No legalism. Judiciary should not loose touch with public and common sense. So
acquittal.

I never cease to wonder at my colleagues' ability to throw an obscuring curtain of

legalisms about every issue presented to them for decision.

I have never been able to make my brothers see that government is a human
affair, and that men are ruled, not by words on paper or by abstract theories,
but by other men. They are ruled well

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Natural School of Legal Thoughts, LL.M. Comparative Legal System. CHEA, Law
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when their rulers understand the feelings and conceptions of the masses.
They are ruled badly when that understanding is lacking.

Public opinion clear. Tells us what we have to do!

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Natural School of Legal Thoughts, LL.M. Comparative Legal System. CHEA, Law
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The concept of Natural Law Theory has varied tremendously since its origin.

The present form too has huge diversity in contents and means different things for
different theorists.

In fact, the Natural Law Theory originated not as a theory of Law proper but as a
theory of morality and ethics. Classical Theorists were basically moral or political
theorists, asking: how does one act morally? Or more specifically, what are one’s moral
obligations as a citizen within a state, or as a state official? And, what are the limits of
legitimate government action?

Natural law considered as a moral theory enjoys the longer history and has produced the
larger body of literature, with proponents to be found among classical Greek and Roman
philosophers, medieval theologians, and contemporary moral theorists. Most of these
works, particularly in classical thought, emphasize the analogy between discovering
moral laws by reasoning about human nature and discovering the natural laws of
science.

This emphasis allows us to extract at least one of the characteristics that make a moral
theory a natural law theory: namely, the insistence that moral principles are
objectively valid and discoverable by reason.

By contrast, modern theorists working within the tradition are social theorists or legal
theorists. In fact, much of modern natural law theory has developed in reaction to legal
positivism, as an alternative approach to theorizing about law.

Hence, In contrast to the moral theory, natural law as a legal theory may seem
somewhat easier to characterize, partly because it takes its shape from its explicit
opposition to legal positivism: the legal positivist claims that no necessary connection
exists between law and morality; the natural law legal theorist denies that a sharp
separation of these concepts is possible.

Anyways, the focus within natural law is away from conventional law, to something
higher or more basic that rules or guides. In the voluntarist 1 forms of traditional natural
law, it is divine commands creating moral standards; in some forms of Thomistic natural
law, it is an ideal towards which humans, by their nature, strive; in recent natural law
theories, it is the sense to which conventional legal rules are approximations of what law
really is (Ronald Dworkin) or what law must try to be (Lon L. Fuller).

1 Voluntarism has been defined as the theological position that all values are so
through being chosen by God.
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Natural School of Legal Thoughts, LL.M. Comparative Legal System. CHEA, Law
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Unifying and Universal Features of the Natural Law Theory

1. Natural Law Theory as reflective critical accounts of theconstitutive aspects

of the well-being and fulfillment of humanpersons and the communities
they form.(That is the substance/corpus of Natural Law Theory is about human well-
being and fulfilment. Therefore the concept of common good, human development
etc. are central idea in many Naturalists philosophy such as Aristotle's and Finnis'
common good, Aquinas' development etc.)

2. Presentation of fundamental principles of Natural Law Theory in the form of

directive in our thinking about what to do and refrain from doing.

3. Natural lawtheories, then, propose to identify principles of right action—

moral principles. The moral principles are understood by Naturalists as principle
that one should choose and act inways that are compatible with a will towards
integral humanfulfillment.

Among these principles is a respect for rights peoplepossess simply by virtue of their
humanity—rights which,as a matter of justice, others are bound to respect and
governmentsare bound not only to respect but, to the extent possible,also to
protect.Right, here, is an example of moral principles. On this ground the Natural Law
and Natural Rights overlap.

4. The basic goods of human nature are the goods of a rational creature—a
creature who, unless impaired or prevented from doing so, naturally
develops and exercises capacities for deliberation, judgment, and choice.
(Rationalism as opposed to Empiricism as the source of validity of law)

These capacities are God-like. In fact, from the theological vantage point they
constitute a certain sharing—limited, to be sure, but real—in divine power. This is
what is meant, by the otherwise extraordinarily puzzling Biblical teaching that man is
made in the very image and likeness of God.

5. Natural law theorists are interested in the intelligible reasons people have
for their choices and actions. They are particularly

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interested in reasons that can be identified without appeal to any authority

apart from the authority of reason itself. This is not to deny that it is often
reasonable to recognize and submit to religious or secular (for example, legal)
authority in deciding what to do and not do. Even here, however, the special concern
of natural law theorists is with the reasons people have for recognizing and honoring
claims to authority. They do not simply appeal to authority to justify authority.

6. The place of God in Natural Law Theory. This is a very difficult feature of
the Natural law Theory.
Most, but not all, natural law theorists are theists. They believe that the moral order,
like every other order in human experience, is what it is because God creates and
sustains it as such.

In accounting for the intelligibility of the created order, they infer the existence of a
free and creative intelligence—a personal God. Indeed, they typically argue that
God’s creative free choice ultimately provides the only satisfactory account of the
existence of the intelligibilities humans grasp in every domain of inquiry. Natural law
theorists do not deny that God can reveal moral truths, and most believe that God
has chosen to reveal many such truths. Natural law theorists, however, also affirm
that many moral truths, including some that are revealed, can also be grasped by
ethical reflection apart from revelation.

The natural law can be known by us, and we can conform our conduct to its terms, by
virtue of our natural human capacities for deliberation, judgment, and choice.

The question then arises: can natural law provide the basis for a regime of human
rights law without consensus on the existence and nature of God and the role of God
in human affairs? Anybody who acknowledges the human capacities for reason and
freedom has good grounds for affirming human dignity and basic human rights.
These grounds remain in place whether or not one adverts to the question whether
there is a divine source of the moral order whose tenets we discern in inquiry
regarding natural law and natural rights. Should be open to the possibility that God
has revealed himself in ways that reinforce and supplement what can be known by
unaided reason. But we do not need agreement on the answer, so long as we agree
about the truths that give rise to the question— namely, that human beings,
possessing the God-like powers of reason and freedom, are bearers of a profound
dignity that is protected by certain basic rights.

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If there is a set of moral norms, therefore, including norms of justice and human
rights, that can be known by rational inquiry, understanding, and judgment even
apart from any special revelation, these norms of natural law can provide the basis
for an international regime of human rights. Of course, we should not expect
consensus. There are moral skeptics who deny that there are moral truths. There are
religious fideists of various faiths who hold that moral truths cannot be known apart
from God’s special revelation. And, even among those who believe in natural law,
there will be differences of opinion about its content and implications for certain
issues, including important ones. Thus, it is our permanent condition to discuss and
debate these issues, both as a matter of abstract philosophy and as a matter of
practical politics.

7. The Natural law is about rules and virtues. And not merely rules. That is
natural law theory goes beyond setting normative standards.

Therefore natural law is about rules and virtues. A complete theory of natural law
identifies norms for distinguishing right from wrong as well as habits or traits of
character whose cultivation disposes people to choose in conformity with the norms
and, thus, compatibly with what we might call—borrowing a phrase from Kant—a
good will, a will towards integral human fulfillment.

8. Acceptance that there may not be uniquely reasonable or desirable scheme

of regulation, only different possible schemes with different benefits and
costs, governmental authority must be employed to choose by stipulating
one from among the possible schemes. Authority in such a case is necessary
because unanimity is impossible. Authority serves the common good by making a
stipulation and enforcing its terms. Assuming that there is no corruption or other
injustice involved in the choice of a certain scheme of traffic regulation or the
enforcement of its terms, we can regard this as a focal case of legal authority under a
natural law account of the matter.

Of course, the complete account would begin by identifying the human goods that
schemes of traffic regulation are meant to advance and protect, including but not
limited to the protection of human life and health and the evils they seek to allay. The
account would observe that in the absence of a legally stipulated and enforced
scheme of regulation these goods would be in constant jeopardy as motorists, even
motorists of goodwill who were doing their best to exercise

caution, crashed into each other or created traffic gridlock of the sort
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that could easily be avoided by the prudent stipulation of coordinated schemes of

driving norms. It would then defend the legitimacy of governmental authority to
make the required stipulations, not by referring to the unique desirability of the
scheme it happens to choose, but rather by appealing to the need for a scheme to be
given the standing of law.

Following Aquinas, who was himself picking up a lead from Aristotle,

natural law theorists hold that all just positive law, from schemes of traffic
regulation to complex sets of rules governing, say, bankruptcy, is “derived”
from natural law; still, there are two different types of derivation
corresponding to different types of law. In certain cases, the legislator, for
the sake of justice and the common good, simply and directly forbids or
requires what morality itself forbids or requires. For example, the legislator in making
murder a criminal offense puts the force and sanctions of positive law behind a
principle by which people are bound as a matter of natural law even in the absence
of positive law on the subject—namely, the principle forbidding the direct or
otherwise unjust killing of one’s fellow human beings. Aquinas noted that, in acting in
this way, the legislator derives the positive law from the natural law in a manner akin
to the deduction of conclusions from premises in mathematics or the natural
sciences.

For other types of positive law, however, such a “deductive” approach is not possible.
Here again the case of traffic regulation is illustrative. In choosing a scheme from
among a possible range of reasonable schemes, each with its own costs and benefits,
the legislator moves not by a process akin to deduction, but rather by an activity of
the practical intellect that Aquinas called “determinatio.” Aquinas explained it by
analogy to the activity of a craftsman commissioned to build a house—what we
would probably call an architect. There is, of course, no uniquely correct way to
design a house. Many different designs are reasonable. Certain design features will
be determined by the needs of the person or family that will occupy the dwelling,
others are simply matters of style and taste, and others still are optional
compromises between expense and risk. So, in most cases, the architect will exercise
a significant measure of creative freedom within a wide set of boundaries. Consider
the question of ceiling height.

Like the architect, the lawmaker will in many domains exercise a considerable
measure of creative freedom in working from a grasp of basic practical principles. He
will direct actions towards the advancement and protection of basic human goods
and away from
their privations. Through his exercise of creative freedom, he will craft concrete
schemes of regulation aimed at coordinating conduct for the sake of the all-around
well-being of the community—that is, the
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common good. Among the considerations a good legislator will always bear in mind is
the fairness of the distribution of burdens and benefits attending any scheme of
regulation. Because, on the natural law account, all persons have a profound,
inherent, and equal dignity, the interests—that is, the well-being—of each and every
person must be taken into account and no one’s interests may be unfairly or
otherwise unreasonably favored or disfavored.

Although the natural law sets the derivation of positive laws from the natural law as
the task of the legislator, it is important to note that the body of law created by the
legislator is not itself the natural law.

9. Natural law theorists through the ages have taken note of the distinction
between the systemic validity of a proposition of law, the property of
belonging to a legal system, and the law’s moral validity and bindingness
as a matter of conscience. These theorists have had no difficulty accepting the
central thesis of what we today call legal positivism. Indeed, it is hard to see how one
would otherwise make sense of the locution “a law that is not just.”'

Natural law, Jonathan Dolhenty, Ph.D.:

is not made by human beings;

is based on the structure of reality itself;

is the same for all human beings and at all times;

is an unchanging rule or pattern which is there for human beings to discover;

is the naturally knowable moral law;

is a means by which human beings can rationally guide themselves to their good.

Legal Nature of Natural Law School

In strictly ‘legal’ form Natural Law may represent, (a) ideals which guide legal
development and administration, (b) A basic moral quality in law which prevents a total
separation of the ‘is’ from the ‘ought’; (c) the method of discovering perfect law; (d) the
content of perfect law deducible by reason; (e) the conditions sine quibus non for the
existence of law.

Anyways, central to Natural Law Theory is the assertion that there are objective moral
principles which depend upon the nature of the universe and which can be discovered by
reason. However, with such relatively subjective notion of morality and reason, it is
essential

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for Natural theorists to base such subjectivity upon some fact – which will be universally
accepted and thus will carry the weight as a law.

Therefore, Natural theorists try to find authority of ‘ought’ or ‘moral truth’ on some fact,
which is natural, obvious, proven, universally acceptable.

Some of the ways natural law has tried to do this is by:

1. If it is natural (law) for men to act in a particular way then he ought morally to act
in this way. Hence, it is moral for mankind to reproduce since it is natural (law) for
mankind to do so.

2. Natural process tends towards predetermined ends. Ends in turn can be

discovered by reason and thought. And this end for many Natural theorists is the
‘good’. But the problem is who or what determines the end or good for Humans.
Now, some theorists say it is the god and others say humans as rational being
having free will determine for themselves the end.

3. Propositions of natural law are self evident.

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