1.1 Natural Law Theory

What does the law do?

"Law seeks to regulate or govern human conduct." PL 2

But other things regulate human conduct...

Moral rules, mafia....

What is the difference

between law and morality?

Law and Morality

Morality:

"the force of an obligation depends on the content of the obligation." PL 2

Law:

"the force is independent of their content. A legal obligation to do X (or not to do Y) claims to have force just because it is imposed by law." PL 2

Law and Coercion

"Laws are commands backed by sanctions." PL 2

What is the difference between the law and the mafia's commands?

Law has moral authority (legitimacy)

"a mafioso doesn't claim that his directives impose moral obligations." PL 2

What is the nature of the law?

The nature of the law is related to morality, but is also related to (some sort of) coercion independent from the content.

3 main answers

Natural Law Theory

Morality necessarily grounds the law.

Legal Positivism

Law is whatever the legal system says it is.

Legal Realism

The law is what the judge says it is.

Different theories

Natural law theory Legal Positivism Legal Realism

Human Law

"[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” (Summa Theologica, Question 95)

Law of nature =

precepts that govern rational beings

? FROM THE AUDIENCE

Can there be natural law theory without the idea of a divine law (a "law of nature")?

The Definition of the Law

"the definition of the law ... is nothing else than a certain ordinance of reason for the common good, made my him who has care of the community, and promulgated." PL 55

1. The law is rational ...

"Law is a certain rule and measure of acts whereby man is induced to act or is restrained from acting .... Now the rule and measure of human acts is reason ... since it belongs to reason to direct to the end." PL 52

2. ... directed to the common good ...

"the last end of human life is bliss or happiness." PL 54

"...nothing stands firm with regard to the practical reason unless it be directed to the last end which is the common good... ." PL 54

? FROM THE AUDIENCE

How does the common good relate to the private good?

3. ... made only by some ...

"to order anything to the common good belongs either to the whole people or to someone who is the viceregent of the whole people." PL 55

? FROM THE AUDIENCE

What is required to make a law that is not unjust?

4. ... and must be promulgated

"in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation." PL 55

Can the law of nature change?

Adding: "nothing hinders the natural law from being changed, since many things for the benefit of human life, have been added over and above the natural law..." PL 56

Substracting: "the natural law is altogether unchangeable in its first principles ... " PL 56

? FROM THE AUDIENCE

Is law revealed or created?

Can the law of nature

be abolished from the heart of man?

"Sin blots out the law of nature in particular cases, not universally ..." PL 57

? FROM THE AUDIENCE

"If law is merely a formalized system of the rules and morality innate to man, then why is there so much contention over laws? And why are sanctions not enough to prevent people from breaking these laws?"

The Law

"rules made... by a determinate and effective authority ... for a 'complete' community, and buttressed by sanctions in accordance with the rule-guided stipulations of adjudicative institutions ... being directed to reasonably resolving any of the community's coordination problems ... for the common good of that community ... ." PL 66

What are the similarities and the differences between Aquinas's and Finnis's definitions of law?

The Overlap Thesis

Morality and law are intertwined not by convention but by the very nature of law.

Morality (dictated by reason) is the standard of the law beyond social conventions.

The Overlap Thesis provides the justification for coercion

Common Good

"the common good of the community is the good of all its members; it is an open-ended good, a participation in all the basic values..." PL 58

Basic Values

Values grounded in human nature

Life

Health

Knowledge

Play

Friendship

Religion

Aesthetic experience

Present in all cultures

Practical Reasonableness

"The set of principles of practical reasonableness in ordering human life and human community" PL 68

Practical reasonableness: ability to reason correctly about what is good for oneself

Producing Basic Values

"Rules and institutions [are] directed to resonably resolving any of the community's coordination problems."

PL 66

From Natural Law to Positive Law

"Aquinas says that this sort of law is derived from natural law by a process analogous to deduction of demonstrative conclusions from general principles." PL 68

? FROM THE AUDIENCE

What is the point of this excerpt?

"Notice, for example, that legislative draftsmen do not ordinarily draft laws in the form imagined by Aquinas: ‘There is not to be killing’--nor even ‘Do not kill,’ or ‘Killing is forbidden’...Rather they will say … ’Any person who kills … shall be guilty of an offence.” PL 69.

A Coherent Social Order

"It is quite possible to draft an entire legal system without using normative vocabulary at all." PL 69

"The integration of even an uncontroversial requirement of practical reasonableness into the law will not be a simple matter." PL 69

Between Law and Custom

"It is the business of the draftman to specify, precisely, into which of these costumes and relationships and act of killing-under-such-and-such-circumstances fits." PL 69

Determinatio

"Aquinas says that laws of this second sort have their force 'wholy' from human law." PL 70

The Importance of Norms

"the legislative choice between 'drive on the left' and 'drive on the right' is a matter of indifference in the abstract, but not in a society where by informal convention people already tend to drive on the left, and have adjusted their habits, their vehicle construction, road design, and street furniture. accordingly." PL 71

The Importance of Punishment

"Sanctions are punishments because they are required ... to maintain a rational order of proportionate equality, or fairness, as between all members of society," PL 59

"The authority of the law depends ... on its justice or at least its ability to secure justice." PL 57

What Is Punished?

Whoever breaks the law "gains a certain sort of advantage over those who have restrained themselves, restricted their pursuit of their own interests, in order to abide by the law." PL 59

? FROM THE AUDIENCE

Is breaking the law the only way to gain an undue advantage?

Can wealth confer another sort of undue advantage?

Harm to Self

"One who defies or contemns the law harms no only other but also himself." PL 59

Whoever breaks the law is "diminishing his personality, his participation in human good." PL 59

The Goal of Punishments

"Punishment rectifies the disturbed pattern of distribution of advantages ... by depriving the convicted criminal of his freedom of choice, proportionately to the degree to which he had exercised his freedom, his personality, in the unlawful act." PL 59

? FROM THE AUDIENCE

Is this an adequate view of punishment for our current penitentiary systems?

The Ultimate Goal of Punishment

"no one is made to live his life for the benefit or convenience of others, and each is enabled to conduct his own life ... with a clear knowledge and foreknowledge of the appropriate common way and of the cost of deviation from it." PL 58

The limits of criminal law

1. Procedural fairness

2. Substantive fairness

3. Nulla pena sine leges

4. No retroactive punishment

5. Restrain during investigations, interrogations, and trials

Not Really A Law?

"social arrangements can be more or less legal, ... legal systems and the rule of law exist as a matter of degree... " PL 67

An unjust law is still a law, but they don't provide moral reasons to obey them.

Finnis's goal

"the intention has been not to explain a concept, but to develop a concept which would explain the various phenomena referred to ... by 'ordinary' talk about law and explain them by showing how they answer ... to the standing requirements of practical reasonableness ..." PL 67