A Natural Law Approach to Normativity

Bebhinn Donnelly

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317187479
• Edition: 1
• Topic: Derecho
• Subtopic: Jurisprudencia

Exploring the relationship between natural law theory and the philosophy of law, Bebhinn Donnelly proposes a new approach to natural law theory - one which addresses some of the tradition's shortcomings and advances further its approach to Hume's dichotomy. Key features: ¢ Provides a clear definition of `nature' in this context ¢ Contrasts the work of Hume and Kant regarding the `is/ought' issue ¢ Examines the approach in traditional natural law ¢ Presents a full discussion of Finnis and the departure from traditional natural law ¢ Proposes a new, natural law approach to normativity, drawing on the strengths of traditional natural law theory ¢ Illustrates how natural law may provide a normative base for law A Natural Law Approach to Normativity presents an original perspective on natural law theory and will be of interest to academics in philosophy of law, moral/political philosophy, natural law theorists, and students of jurisprudence internationally.

Chapter 1
Introduction

The Evaluative Viewpoint, External to the Institution of Law

Law, whatever else it does, has the effect of regulating human behaviour. It might be hoped that it would at least seek to perform this role well and morally. Certainly those citizens subject to law ought to be free to consider and to reflect upon whether law’s aims are good and whether it meets them prudentially. This process of reflection and evaluation seems important enough to warrant a central role in legal philosophy too. Of course, to evaluate law in this way, legal philosophy requires support in the form of an accompanying theory of morality and a theory of its application to law. Law’s institutions cannot be expected to supply this knowledge for, in the absence of an account of morality, it cannot be assumed, though it legitimately may be hoped, that existing legal systems meet or aim to meet, or efficiently meet moral ideals. In order to gain an insight into the qualities that a good legal system ought substantively to possess it is necessary, therefore, to first step outside the institutions to which we belong. This book adopts that viewpoint, one external to the institutions of law and from that position it suggests that a normative guide for law can be found in nature. The approach derives from the natural law tradition advanced by Plato, Aristotle, and the Old Stoics, an approach taken to a new level of sophistication by St Thomas Aquinas and given an epistemological twist by the modern natural law of Finnis, Grisez and Boyle.

The viewpoint that is external to the social practice of law is not one that theories of law usually prefer. Legal philosophy often amounts to an analysis of law as a social institution; it considers the contribution of description and evaluation (moral or otherwise) to that analysis and examines whether description does or must entail an evaluative component.1 Generally, the discussion, whether descriptive or evaluative, occurs at a level internal to the institution of law.2 In this way a bias can be discerned in favour of the view that law, conceptually, (and legal philosophy) is tied to the thing law as a social practice. Whilst the conceptual importance of law as a social practice is self evident, it does not follow that it is impossible or unimportant to conceive of law in a broader way, from a viewpoint other than the institutional.

To see how the broader perspective emerges as a conceptually important one it might be considered that having asked the question, ‘what is your concept of law?’ it is very likely that one will encounter responses that refer to the importance of justice and fairness and morality. People it seems do conceive of law as an ideal; they think that law, whatever it is in fact, ought to reflect principles of justice and fairness and morality. These entailed concepts do not, by necessity, represent a mere process of abstraction from the practice of law nor do they necessitate taking a view on the ‘science’ of law; indeed they may be held with commitment, by someone subject to a wholly corrupt legal system. The people who conceive of law in this way may even be as numerous as the ‘bad’ men (defendants) of Holmes’ realism, who want a practically useful ‘prophecy’ of what the ‘courts will do in fact’, however unfair that may prove to be, and ‘nothing more pretentious’.3 Indeed the ‘bad man’ himself may have a concept of law as an ideal, one emerging from a belief that law as it is, is unjust or inconvenient to the individual. Of course, to hold a concept of law as an ideal is not to be illogical; it is not at all to conclude that the ideal will be manifest in the positive law of legal reasoning. The ‘bad man’ will most likely expect the Judge to decide his case according to the law and its principles (or according to what he had for breakfast) and that may bear no relation to his ‘ideal’ concept of law.

‘The’ concept of law admits of more than one possibility; it may refer at least to law as an ideal and to law as a human institution, and to each in manifold and varying ways. Both broad ways of conceiving of law have value.4 The importance of the ideal and of the perspective external to the institution again comes in to view when it is acknowledged that substantive normative meaning is derived by law from features of the world that are external to it. This has implications for the scope of the concept of law for it suggests that conceptual meaning flows not only directly from law as a practice, it flows from elsewhere to law as a practice. Judicial reasoning, in the UK, for example, however open textured, operates either under actual legislative limits or is always potentially limitable by legislative enactment, a potential recognised by Austin in the strongest possible terms.5 Whilst legislation is given meaning by law, (through judicial interpretation) it is most fundamentally given prior meaning by the political world. It is useful to question, in an account of law, whether external domains, like politics, give good law to the system or not. The familiar jurisprudential process of looking inwardly to the practice of law (at how normative meaning is imposed on legislation by judicial reasoning, for example) is central to our understanding of that practice. But to do only this is to undervalue the very important sense in which much normative meaning is already given to law from elsewhere. Law, as part of what something else means, can be as much an important concept of law as the concept of law as an institution undoubtedly is. For this reason a legal theorist may be justified in starting a project not with law but with history or politics or psychology or metaphysics or nature to show how meaning does flow or, in this case, propose how it ought to flow from these domains to law. The objection may be made that such methods will not identify law as law but equally it may be suggested that law as law exists because certain of its mechanisms incorporate and derive substantive content from these and other realms of knowledge. Current jurisprudence of course addresses ‘external’ influences but it does so starting from law as practice and moving outwardly to ‘extensions’ of that practice, from the process of adjudication to the internalisation of community morality for example.6 Dworkin and Finnis, for example, for different reasons, consider that moral evaluation plays an important role in the concept of law. But they view evaluation to be relevant either because it exists as an actual feature of the practice7 or because it is required to identify the central case example of law as an institution.8

In this book evaluation is considered central to the philosophy of law because the concept of law is taken to refer to law as it ought to be as much as to law as it is.9 The viewpoint external to the institution of law10 is adopted not to show how politics or history have informed or can inform law but for the purposes of examining law as an ideal. The position reflects commitment to the view that law cannot be understood merely as performing functions required by law. Law is, itself, something required by an other, the other being, simply, the world in which law exists, and in the same way that law has requirements that it must meet there are other features of reality that have requirements, one such requirement being law. The examination begins, then, not with law but with those natural features of the world, particularly man and his society, which require institutions of law to exist.

The substantive questions that may arise from adopting the moral viewpoint external to the institution, questions like, how, and when, and over which realms of human activity law ought to exert its authority are ambitious, but to the thinking, active human being they ought to be viewed as unavoidable. With unparalleled authority, law prohibits and demands certain actions over human beings with a uniquely free reason. When it is abused, as an instrument of Platonic social engineering, for example, law can aim to and can be used to supplant human reason. In that way it can contribute to making the human being slightly less human. Part of the natural law ideal is that human beings are to be human to the fullest possible extent, both as individuals and in communities. It is important, from that perspective, that law acts via and in order to advance rather than to thwart man’s reasoning nature.

The Role of Nature

The central claim advanced here, derived in part from the classical natural law tradition, is that moral meaning resides in very basic, essential natural facts about our existence as human beings. This amounts to a belief that the moral ‘ought’ is located within the ‘is’ and that it can be identified therein by reason.

If traditional natural law theory has a major flaw it lies in its failure clearly to distinguish ‘nature’ in its various senses. Nevertheless, some important qualifications on the use of the term ‘nature’ in the tradition need to be identified. First, nature is not, in its usual application, taken to refer uniquely to human desires, or to biological dispositions, or to abstract governing principles, though it sometimes held these meanings. Rather the term ‘nature’ is best understood to refer to the empirical world - to the world of fact - potentially in all its guises. This approach to the ancients’ concern with nature whilst an oversimplification reflects best the level at which nature was, most fundamentally, relevant to normativity.

Sometimes traditional natural law theory uses the natural empirical world convincingly, particularly when it attempts to isolate natural essentials of man’s being and to show how these can inform what man ought to be. It is least impressive when it attempts to derive moral information from man’s contingent ‘nature’, like his being wise, or a shoemaker, or a slave, or a thief, without reference to ‘governing’ essentials. Indeed a tension is evident throughout natural law between contingent and essential natural facts. For this reason a division is made between the two theoretical stages: the emphasis in Chapter 4 is on the use of contingent truths (albeit juxtaposed with our essential/universal nature as a ‘political animal’); the emphasis in Chapter 5 is on the identification and use of universal truths. The division is an artificial one undertaken to reflect the undoubted theoretical superiority of the latter approach.

Scheme of the Book

The idea that essential facts about our being can provide a normative guide for man and for law in particular is somewhat peculiar to the natural law tradition. Indeed there are important fundamental challenges to the view that the world of fact can contribute in any way to the attainment of moral knowledge.

The apparent inability of nature clearly to impart moral truth is reflected most notably in Hume’s belief that one cannot, without explanation of some kind, derive an ought-proposition from an is-proposition. For Hume in particular, this meant that facts about man and his world cannot be translated into a moral guide using the medium of human reason. The dichotomy between ‘is’ and ‘ought’ that Hume depicts is the subject of Chapter 2; it can be seen to represent, in the most condensed form possible, an essential (if not the essential) normative problem, that the world in which we do live does not appear to inform how we ought to live. Hume’s view, that the problem is resolvable, is accepted. But in the Chapter a distinction is drawn between the problem itself and Hume’s characterisation of the problem as deriving from the limitations of human reason and consequently solvable only by sentiment. Hume’s sentiment—based solution follows from his understanding of the nature of the problem but that solution cannot be accepted as uncontroversial in the same way that the problem can. Uncritical acceptance of Hume’s solution as correctly reflective of the problem has led many to proceed with undue reverence for his conception of the ‘is/ought’ dichotomy and in particular to undervalue the usefulness of facts in moral reasoning.

Chapter 3 examines Kant’s alternative approach to morality, one that might prove equally fatal to the natural law tradition. The Metaphysics of Morals is the basis for a critique as it reflects closely the metaphysical questions of concern. Kant’s attempt is to overcome the apparent moral vacuum left by nature by limiting (almost to zero) the epistemic role of nature in fundamental moral reasoning. But the attempt, it is claimed, has more in common with the natural law tradition than is sometimes imagined. This may be because Kant does use nature deductively (rather than pure reason’s principles alone) more than he acknowledges. First, the incorporation of the universalisability requirement in the categorical imperative appears to follow from an unacknowledged attribution of moral relevance to natural facts. Second, even allowing for the moral substance of the imperative, it is incomplete as a normative guide without assistance from further fact-based principles. It is suggested that the imperative works best where there are, implicit in Kant’s position, natural bases that transcend the limits of a priori reasoning.

From these two chapters, it appears that Hume’s non—cognitivism demands too much from sentiment and Kant’s appeal to autonomy demands too much from reason alone. Chapters 4 and 5 present the alternative position evident in traditional natural law theory. A central claim, of that school, in opposition to Hume, is that reason, not sentiment, has the primary role to play in solving normative problems. In opposition to Kant, the world of fact (albeit fact, represented by nature in a pre—contingency sense) i...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• 1 Introduction
• 2 Hume and Natural Facts
• 3 Kant and Natural Facts
• 4 Early Natural Law: The Fusion of Fact and Value
• 5 Early Natural Law: Principles of Practical Reason
• 6 New and Traditional Natural Law: Epistemological Comparisons
• 7 Natural Law’s Contribution to Normativity and Law
• Bibliography
• Index