Law and Morality
Natural Law Theory
Classical law appeared roughly 2500 years ago in ancient Greece with the precept that all rational order is innate and discoverable through universal perception and human reasoning. Since natural law is above any human posited law, it is always the highest form of law, and any conflict will always amount to the natural law being the dominant. Nothing can be legal if it goes beyond the principles of morality, well as far as natural law theories are concerned. These universal laws are seen as far back as in the play by Sophocles ‘Antigone’, where the lovely damsel is required to choose between the posited law of the King or the natural laws of the God’s. Although basic, more detailed examples can be followed through in the works of Cicero, where he clearly demonstrates the divine rights of the God’s and their laws. These laws eventually find their way into the Christian church, thus, as Saint Augustine stated: no other law than God’s law is just. For Aquinas, like Augustine, the law of God must coexist with the law of the sovereign, any deviation and Gods law is suddenly the one to triumph. A lovely ideal for the Christian church, which not only meant that the sovereign was limited to a few measures of control, but also, if laws of the land were divinely overridden by the foresight of a prophet, the law of the land suddenly became void.
A few hundred years later natural law became uprooted when Hugo Grotius declared that even if God did not exist the corollary didn’t alter. Here it is a key example of modernity where the precepts of yesteryear no longer meant that the presuppositions were void: Grotius (1967). After this period ordain laws became ordain rights of the citizens, and the inherent ideas of equality emerged. These beautiful notions of human rights now meant that all people were born with rights that were God given, and the initial underpinnings meant that the socio-atmospheric relationships became divided. Suddenly these rights were civil liberties that all had; as long as you were white, male, wealthy and not African; as Locke clearly demonstrated betwixt his writing on equality, liberty, possessions and mass importation of slaves: Locke, Page 235 (1966). Amongst these virtues elucidated were those of joint venture, and from which, came civil doctrines out of the mass murderous atrocity of French and American revolutions: The American Declaration of Independence 1776. Bentham’s critique of the Rights of Man, “Anarchical Fallacies”, gives an unequivocal account of the real veracity concerning hence with.
Men (all men) are born and remain free, and equal in respect of rights. Social distinctions cannot be founded, but upon common utility.
All men are born free? All men remain free? No, not a single man: not a single man that ever was, or is, or will be. All men, on the contrary, are born in subjection, and the most absolute subjection--the subjection of a helpless child to the parents on whom he depends every moment for his existence. In this subjection every man is born--in this subjection. What is the state of things to which the supposed existence of these supposed rights is meant to bear reference? A state of things prior to the existence of government, or a state of things subsequent to the existence of government? If to a state prior to the existence of government, what would the existence of such rights as these be to the purpose, even if it were true, in any country where there is such a thing as government? If to a state of things subsequent to the formation of government--if in a country where there is a government, in what single instance--in the instance of what single government, is it true? Setting aside the case of parent and child, let any man name that single government under which any such equality is recognised. All men born free? Absurd and miserable nonsense! When the great complaint--a complaint made perhaps by the very same people at the same time--is that so many men are born slaves. Oh! but when we acknowledge them to be born slaves, we refer to the laws in being; which laws being void, as being contrary to those laws of nature which are the efficient causes of those rights of man that we are declaring, the men in question are free in one sense, though slaves in another; slaves, and free, at the same time: free in respect of the laws of nature--slaves in respect of the pretended human laws, which, though called laws, are no laws at all, as being contrary to the laws of nature. For such is the difference--the great and perpetual difference--betwixt the good subject, the rational censor of the laws, and the anarchist--between the moderate man and the man of violence. The rational censor, acknowledging the existence of the law he disapproves, proposes the repeal of it: the anarchist, setting up his will and fancy for a law before which all mankind are called upon to bow down at the first word--the anarchist, trampling on truth and decency, denies the validity of the law in question--denies the existence of it in the character of a law, and calls upon all mankind to rise up in a mass, and resist the execution of it.
John Finnis
Natural law and Natural Rights brings law back to where it should be, a step closer to God, or a ‘focal’ understanding for secondary law, as Finnis puts it. The focal, or ideal form, is the closest underpinning to that of God. Unjust laws cannot be law, they cannot be true law, they cannot in the fullest sense be anything more for they go against morality, the very being of humanity. Just alike to a police officer who peddles drug ridden lollies to children being classified as nothing more than a drug dealer, or not an officer of the law, it is defective to the law, and not of its focal meaning, and thus, not of the primary class: Finnis, Page 142 (1981).In comparison to Aquinas’ overarching ‘good’, Finnis relies on several inherent ‘goods’ apparent to us all.
- Life
- Knowledge
- Play
- Aesthetic Experience
- Sociability
- Practical Reasonableness
- Religion
All humans, according to Finnis, have the potentiality to maximise all of these facets, and in doing so, fulfil the eudemon life. However, in contradiction Weinreb points the subtle difficulty in attaining these ‘metaphysical’ assumptions of what law is supposed to amount to from these mystical several elements. I personally fail to see how these magical elements will prevent any atrocity, as Hart stated ‘found legal traditions should allow for moral legitimization’: Hart, Page 42 (1982). Finnis as a devout Christian no doubt meant well as far as his moral intuition asserted, yet, because of this his argument becomes convoluted, and unrealistic to an audience outside normativity.