chapter 2
CHAPTER TWO
2.0. LITERATURE REVIEW
The history of natural law is a tale of the search of mankind for absolute justice. Natural law has appeared in some form or other, as an expression of the search for an ideal higher than positive law.1With changing social and political conditions, the notions about natural law have changed. Natural law has been the chief though not the only way to formulate ideals and aspirations of various people and generations with reference to the principal moving forces of the time.
To accommodate the modern humanistic legal formulations, John Finnis brought into view the new natural law theory. This would inevitably condemn certain theoretical assertions of the traditional natural lawyers but incorporates certain views of modern legal humanistic thinkers. In the course of this review, it would obviously reflect the works of ancient natural law theorists and more appropriately works that responded to John Finnis’ Natural law and Natural right.
In his book, Nicomachaen Ethics, Aristotle carried on in the tradition of his two great predecessors. Aristotle acknowledges the fact that law and justice would be as the result of convention. But besides this legal or conventional justice, Aristotle insisted that there is a natural justice which everywhere has the same force and does not depend on our accepting it.2 He noted on this fact that:
Of political justice part is natural, part legal, natural, that which everywhere has the same force and does not exist by people's thinking this or that; legal, that which is originally indifferent, but when it has been laid down is not indifferent.3
He also taught that laws arising from certain actions like spite, shamelessness, envy, and adultery, theft, murder are bad in themselves (naturally bad).4
As well, Aristotle sees reason as the ideal law of human conduct. A virtuous man is a man who is always guided by ‘rule of reason’. In explicating the role of reason in the reality of law, he noted that:
There is a natural law or justice that everywhere possesses the same authority and is no mere matter of opinion, [sic, but] that is discovered by the use of reason.5
The fact of reason in law (natural) shows its supremacy in a good state, thus law is not an unfortunate necessity.
Aristotle holds forth the fact that"there is in nature a common principle of the just and unjust that all people in some way divine [i.e., discern], even if they have no association or commerce with each other."6
Apparently, the reality of naturalism in Aristotolian’s legal theory stems from his teleological approach to nature.Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this reason the good has rightlybeen declared to be that at which all things aim.7
St. Thomas Aquinas, a Significant Christian Theologian, developed an ethical system based upon nature. In his book, Summa Theologica, Aquinas described natural law as a moral code existing within the purpose of nature, created by God. His treatises on law can be summarized as thus:
i. Natural law is contained in the essence of all created things.
ii. God created humans with a capacity to know or learn what that law is.
iii. All things have a natural purpose and are ‘good’ when they follow or fulfill it.
He formulated a classical approach in explaining law. In his definition, he conceives law as nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community.8 The central ideais that the grace of God was held not to conflict with or abolishman’s nature, but to perfect it, and in this way a Christianized version of natural law could be seen to continue or bring to fruitionthe natural law tradition. Aquinas modified Aristotle’s teleologicalperspective so that man’s end was not only to live socially and seekknowledge, but to live in a Christian community in which onewould come to know, and presumable adore, God. Mostimportantly, however, he described orders of law, eternal, divine, natural and human law, which purported to show the way in whichhuman reason was able to appreciate what was good and godly –according to Aquinas, man, by his reason, was able to participatein the moral order of nature designed by God.9
Natural law itself is related with eternal law because it is a participation of the eternal law. Thus Aquinas would state categorically that:
The function of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident that the natural law is nothing else than the rational creature's participation of the eternallaw. Everyact of reason and will in us is based on that which is according to nature, as stated above: for every act of reasoning is based on principles that are known naturally, and every act of appetite in respect of the means is derived from the naturalappetite in respect of the last end. Accordingly the first direction of our acts to their end, must need be in virtue of the natural law.10
For Aquinas, the natural law is same for all men. This, obviously bring into view the objective character of natural law. Natural law belongs to those things to which a man is inclined naturally: and among these which are proper to man is reason. In speculative aspect of reason, which concerns itself with necessary things, truth is the same in all men though is not known by all, both as to principles and conclusions. On the other hand, for practical reason, neither is the truth or rectitude the same for all, but, where it is the same, is it equally known by all.
Consequently we must say that the natural law, as to general principles, is the same for all, both as to rectitude and as to knowledge. But as to certain matters of detail, which are conclusions, as it were, of those general principles, it is the same for all in the majority of cases, both as to rectitude and as to knowledge; and yet in some few cases it may fail, both as to rectitude, by reason of certain obstacles and as to knowledge, since in some the reason is perverted by passion, or evil habit, or an evil disposition of nature; thus formerly, theft, although it is expressly contrary to the natural law, was not considered wrong among the Germans, as Julius Caesar relates.11
On another note, Aquinas argued fervently that the natural law dates from the creation of the rational creature. It does not vary according to time, but remains unchangeable.
There is shift from the classical natural law as perceived by the Greek philosophers. The tenets of utilitarianisms brought the wide range of workability of law. They dwell much on the activities of the courts to count as law. Jeremy Bentham defines law as “an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state.12 Laws are real entities that make an empirical impression on the mind.13As one might suppose, much of the literature in this domain of the philosophy of law has been given over to attempts to define mediating positions between these “extremes” between natural law and positive law. Two such mediating views are articulated by Hart and Dworkins.
In his book, The Concept of Law, Hart does not seek to defend a narrow, partisan tradition, but rather departs from Austin’s version of positivism by undertaking a broad re-examination of the fundamental questions of jurisprudence, clarifying them and securing their importance.14This work is an analysis of the relation between law, coercion, and morality. It is an attempt to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands. Hart says that there is no logical connection between law and coercion or between law and morality. According to Hart, there is no necessary logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification.15Thus, his interpretation of the relation between law and morality defers from that of Ronald Dworkin, who suggests that every legal action has a moral dimension.
Hart’s analysis of the concept of law is based on several interrelated ideas.16 He maintains that a legal system, in contrast to a set of unrelated laws, consists of a union of primary rules of obligation and secondary rules. The most important secondary rule, which Hart calls “the rule of recognition,” specifies the criteria for identifying a law within the system. Example is the United States Constitution. Other secondary rules specify how primary rules are changed or modified and when primary rules have been violated.
Furthermore, in distinguishing primary rules of obligation from secondary rules, Hart takes the position that there is at least one type of law that imposes an obligation. This type tells citizens that they must not do this or must do that. Raising the crucial question of what an obligation with respect to legal rules means, Hart rejects the idea that to say that law imposes an obligation is merely to assert a prediction. Nor does he accept the view that laws imposing an obligation are simply coercive orders. Hart attempts to provide a general analysis of obligation in terms of social pressure. He sees this analysis as clearly distinguishing his view from those of Austin and other positivists.
Finally, in order to understand secondary and primary rules and the obligation the law imposes, Hart insists that the point of view of people who follow and apply the law must be considered. In particular, he emphasizes the importance of an internal point of view of the law.That is, the point of view of those who operate withinthe law rather than of external observers of the law. So, according to Hart, a legal theorist who wishesto understand a legal system must view the legal system from the point of view of an actor in the system. In Wittgenstein’s categories, perhaps, we might say that Hart views the legal system as a “form of life,” rather than merely as a formal system. How then, one might inquire, do Hart’s notions of “law” and “legal system” impact the crucial issue of judicial interpretation? Clearly, he has moved away from a strict legal formalism, the view that legal interpretation is always simply the straightforward application of a legal rule to a case. Hart does believe that there are instances where this formalist approach is appropriate, but he denies that it always is. Sometimes the judge must exercise discretion, and a mechanical application of rule to case is impossible.
Note the difficulty which this issue poses for a legal positivist who is equally displeased with a natural law form of “legal foundations” and the extreme position of rule scepticism (the notion that judges always have wide discretion and that the application of rules to cases plays no significant role in judicial decision).
Professor Ronald Dworkin has presented a fascinating critical tool in philosophy of law for critiquing legal positivism. Against Hart, Dworkin maintains that even in unclear cases there is always one correct decision, although what this decision might be is unknown. In addition, Dworkin argues that a judge’s decision in unclear cases is characteristically determined, and should be, entirely by principles specifying rights and entitlements. In his book, Law’s Empire, he describes principles as “a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality”.17 He argues that the difference between “principles” and “rules” is “logical” and related to the fact that principles (not rules) differ in their “weightiness” but not always recognizable from their form. Although “principles” are sometimes well-established for example, by judicial precedent, at times they do not become established until there is adjudication of “hard cases”. Yet these principles become really the justification of decisions in cases, which in turn become rules of law .18
Although Dworkin defends his concept of “legal principles” with explicit intent and systematic vigour in “The Model of Rules,” the nature and subtlety of his position emerges more clearly from his more popular article “On Not Prosecuting Civil Disobedience”. For our purposes here, however, the foregoing summary of Dworkin’s position will suffice. It would appear that the net effect of Dworkin’s firm opposition to legal positivism is a kind of conundrum for philosophy of law. On the one hand, Dworkin is able to demonstrate that the “rules” approach of H.L.A. Hart to “certifying” valid positive law does not account for the presence of “principles” within jurisprudence. Indeed, it does appear that “principles” in fact play a role in some judges arriving at decisions, interpreting their reasoning, and justifying their claims.
How then does Hart’s position respond to Dworkin’s challenge? We must recall that Hart sees law as an institution within a larger social system. It is a form of rule-making, rule-applying, and rule-enforcing behaviour. Theserules do indeed have connection to morality, both in origin, on occasion and in interpretation, as well as in applicationand enforcement. This overlapping of differing kinds of rules, in this case moral ones and legal ones, does not imply the dependence of one upon the other in any “ultimate” sense, any more than other social rules like “rules of etiquette” might be. What alternative, then, does Hart offer for explaining the “foundations” of law? Hart introduced the notion of “rules of recognition”.19
In his more mature thought, Hart has broadened his concept of “rules” applied by judges in their decisions to embrace “legal standards”. Although Hart now believes that these legal standards constrain a judge’s decision in unclear cases, he maintains that there may be alternative decisions in such cases that are equally justified in terms of these standards. In Dworkin’s view, Hart’s position remains truncated and unsatisfying.
Immediate contemporary issues come to mind about how natural law can be conceived. Professor William R. Long, in his article “contemporary issues: John Finnis”, commended the work of John Finnis who has singlehandedly tried to resurrect the natural law tradition in moral philosophy and law.20 He tries to offer a “neo-Aquinian” natural law philosophy which does not presuppose a divine being. It is an imperative to state clearly that the essence of law is to satisfy the quest of the human good.
The theory may be briefly state as follows: all rational agents set out to preserve or obtain things they perceive to be good for themselves. We need therefore to exercise practical reason to obtain that good at any one time. Those seven goods can be further clarified into three substantive and four reflexive goods.
It is worthy of note that Finnis’ legal theory is derivative of his moral theory. Law enters into the picture as a way of effecting the realisation of the basic goods. Therefore, on his theory of law, Finnis followed of the track of Aquinas. This signifies that laws should reflect the basic goods and flow from the principles of practical reasonableness. He seemingly makes common cause with people who are not theists today but want to ground their legal theory either in “eternal principles” or “basic principles”. Therefore, it goes a long way to invalidate the positivist’s view of ‘separation of law and morality.
William Long was able to detect certain complexities in the purview of its subject matter. There is a fact that people, who believe in natural law, throw around the word “moral” all the time. It folds back to basic goods, but it is a ‘crutch word’ used a lot to help the natural law philosophers to walk, but not useful for those who are seemingly limbs intact.
One difficulty which is deposited in Finnis’ work is whether the theory really reflects the rough and tumble of legislation, on the one hand, and whether it tries to “explain too much”. Would we easily explain law necessary by viewing it as an instrumental reality as it achieves the aim of separating law from morals? 21
Normative jurisprudence seeks to understand the moral basis for the law. They seek to shape and influence law. Arthur Ripstein, in his article Normative and Analytic Jurisprudence, considers fervently ‘what law is’ and ‘what law ought to be’ in the first part of his essay. He thereafter, considers two alternative ways of understanding how morality could be more closely integrated with law.22
Arthur Ripstein turns to John Austin distinctions of Normative and Analytic jurisprudence. As Austin conceives the distinction;
Analytical jurisprudence is the study of the concept or nature of law, considered in its most general and abstract level. Normative jurisprudence works with the already determined concept of law, and asks what the law should be, considering whether particular areas of law or doctrine are as they should be.23
The fact that the questions concern the structure of a legal system enters the analysis only indirectly, by way of structural concerns about the ability of ordinary citizens to know what the law requires in particular circumstances, or the competence of officials such as police officers and courts to bring moral factors to bear on particular cases.
Apart from Dworkin’s view that we cannot know what the law requires in a particular case without considering what it ought to be, morality is taken to be normatively defensible in more or less the terms on which it presents itself. The morality of interpersonal interaction includes such familiar requirements which include taking care not to injure other people, keeping off their property, honouring your contracts, and avoiding self-dealing while administering the affairs of others, as well as making up any wrongs you have committed.
On the traditional natural law view, positive law serves to make these familiar requirements sufficiently determinate and impartial in their application, so that they can in fact provide adequate guidance to action.24 For the natural law tradition which is clearly seen in Aristotle, Aquinas and Finnis, the basic negative prohibitions of law and morality are generated in relation to the goods most basic to practical reason.
Finally, the natural law view of normative jurisprudence rejects each of the Austinian residues; it found that morality is fundamentally rule-governed. For Arthur, without institutions, charged with applying familiar legal concepts, people could not live together on morally acceptable terms, because morality’s demands would be indeterminate, and each would have no choice but to do what seemed right in his or her eyes.
REFERENCES
1. W. Friedmann, Legal Theory, (Columbia university Press: New York) 5thed; 1967. P.95.
2. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941), p. 1014.
3. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941), p. 1014.
4. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941).
5. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941), 1193-94, p. 865.
6. Aristotle, Rhetorics in the Basic works of Aristotle,ed. R. Mckeon (New York: Random House, 1941), p. 1370.
7. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941), p. 935.
8. T. Aquinas, Summa Theologica (Second and Revised Edition, 1920
Literally translated by Fathers of the English Dominican Provinceonline edition), I-II, q. 91. a. 1.
9. S. Guest et al., Jurisprudence and Legal Theory (London: University of London Press, 2004), pp. 65-66.
10. T. Aquinas, Summa Theologica (Second and Revised Edition, 1920
Literally translated by Fathers of the English Dominican Provinceonline edition), I-II, q. 94.
11. T. Aquinas, Summa Theologica (Second and Revised Edition, 1920
Literally translated by Fathers of the English Dominican Provinceonline edition) I-II, q. 94. a. 4.
12 H.L.A. Hart, Essay on Bentham’s Jurisprudence and Political Theory (New York: Clarendon press Oxford, 1982), p.110.
13. J.M. Finnis, Natural Law and Natural Rights (Oxford: Clarendon press, 1980), p. 4.
14. I. H. Peak,Jr: “Dworkin and Hart on the law: A Polanyian reconsideration,” in M. K. Baird & R. M. Baird (Eds.), Morality, Justice and the Law (Prometheus Books in Amherst, N.Y., 2007), p. 23.
15. H.L.A. Hart, The Concept of Law (Oxford: Clarendon press, 1994), p. 268.
16. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 77ff.
17. R. Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), p. 153.
18. R. Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), p. 157.
19. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), p. 94.
20.W. R. Long: Contemporary issues, John Finnis (11th April 2004). http://www.drbilllong.com/Jurisprudence/Finnis.html. (access 26. 02. 2012).
21. W. R. Long: Contemporary issues, John Finnis (11th April 2004). http://www.drbilllong.com/Jurisprudence/Finnis.html. (access 26. 02. 2012).
22. A. Ripstein: Normative and Analytic Jurisprudence.http://ivr-enc.info/index.Php?title=Normative_and_Analytic Jurisprudence. (access 28. 02. 2012).
23. A. Ripstein: Normative and Analytic Jurisprudence.http://ivr-enc.info/index.Php?title=Normative_and_Analytic Jurisprudence. (access 28. 02. 2012).
24. A. Ripstein: Normative and Analytic Jurisprudence.http://ivr- enc.info/index.Php?title=Normative_and_Analytic Jurisprudence. (access 28. 02. 2012).
2.0. LITERATURE REVIEW
The history of natural law is a tale of the search of mankind for absolute justice. Natural law has appeared in some form or other, as an expression of the search for an ideal higher than positive law.1With changing social and political conditions, the notions about natural law have changed. Natural law has been the chief though not the only way to formulate ideals and aspirations of various people and generations with reference to the principal moving forces of the time.
To accommodate the modern humanistic legal formulations, John Finnis brought into view the new natural law theory. This would inevitably condemn certain theoretical assertions of the traditional natural lawyers but incorporates certain views of modern legal humanistic thinkers. In the course of this review, it would obviously reflect the works of ancient natural law theorists and more appropriately works that responded to John Finnis’ Natural law and Natural right.
In his book, Nicomachaen Ethics, Aristotle carried on in the tradition of his two great predecessors. Aristotle acknowledges the fact that law and justice would be as the result of convention. But besides this legal or conventional justice, Aristotle insisted that there is a natural justice which everywhere has the same force and does not depend on our accepting it.2 He noted on this fact that:
Of political justice part is natural, part legal, natural, that which everywhere has the same force and does not exist by people's thinking this or that; legal, that which is originally indifferent, but when it has been laid down is not indifferent.3
He also taught that laws arising from certain actions like spite, shamelessness, envy, and adultery, theft, murder are bad in themselves (naturally bad).4
As well, Aristotle sees reason as the ideal law of human conduct. A virtuous man is a man who is always guided by ‘rule of reason’. In explicating the role of reason in the reality of law, he noted that:
There is a natural law or justice that everywhere possesses the same authority and is no mere matter of opinion, [sic, but] that is discovered by the use of reason.5
The fact of reason in law (natural) shows its supremacy in a good state, thus law is not an unfortunate necessity.
Aristotle holds forth the fact that"there is in nature a common principle of the just and unjust that all people in some way divine [i.e., discern], even if they have no association or commerce with each other."6
Apparently, the reality of naturalism in Aristotolian’s legal theory stems from his teleological approach to nature.Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this reason the good has rightlybeen declared to be that at which all things aim.7
St. Thomas Aquinas, a Significant Christian Theologian, developed an ethical system based upon nature. In his book, Summa Theologica, Aquinas described natural law as a moral code existing within the purpose of nature, created by God. His treatises on law can be summarized as thus:
i. Natural law is contained in the essence of all created things.
ii. God created humans with a capacity to know or learn what that law is.
iii. All things have a natural purpose and are ‘good’ when they follow or fulfill it.
He formulated a classical approach in explaining law. In his definition, he conceives law as nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community.8 The central ideais that the grace of God was held not to conflict with or abolishman’s nature, but to perfect it, and in this way a Christianized version of natural law could be seen to continue or bring to fruitionthe natural law tradition. Aquinas modified Aristotle’s teleologicalperspective so that man’s end was not only to live socially and seekknowledge, but to live in a Christian community in which onewould come to know, and presumable adore, God. Mostimportantly, however, he described orders of law, eternal, divine, natural and human law, which purported to show the way in whichhuman reason was able to appreciate what was good and godly –according to Aquinas, man, by his reason, was able to participatein the moral order of nature designed by God.9
Natural law itself is related with eternal law because it is a participation of the eternal law. Thus Aquinas would state categorically that:
The function of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident that the natural law is nothing else than the rational creature's participation of the eternallaw. Everyact of reason and will in us is based on that which is according to nature, as stated above: for every act of reasoning is based on principles that are known naturally, and every act of appetite in respect of the means is derived from the naturalappetite in respect of the last end. Accordingly the first direction of our acts to their end, must need be in virtue of the natural law.10
For Aquinas, the natural law is same for all men. This, obviously bring into view the objective character of natural law. Natural law belongs to those things to which a man is inclined naturally: and among these which are proper to man is reason. In speculative aspect of reason, which concerns itself with necessary things, truth is the same in all men though is not known by all, both as to principles and conclusions. On the other hand, for practical reason, neither is the truth or rectitude the same for all, but, where it is the same, is it equally known by all.
Consequently we must say that the natural law, as to general principles, is the same for all, both as to rectitude and as to knowledge. But as to certain matters of detail, which are conclusions, as it were, of those general principles, it is the same for all in the majority of cases, both as to rectitude and as to knowledge; and yet in some few cases it may fail, both as to rectitude, by reason of certain obstacles and as to knowledge, since in some the reason is perverted by passion, or evil habit, or an evil disposition of nature; thus formerly, theft, although it is expressly contrary to the natural law, was not considered wrong among the Germans, as Julius Caesar relates.11
On another note, Aquinas argued fervently that the natural law dates from the creation of the rational creature. It does not vary according to time, but remains unchangeable.
There is shift from the classical natural law as perceived by the Greek philosophers. The tenets of utilitarianisms brought the wide range of workability of law. They dwell much on the activities of the courts to count as law. Jeremy Bentham defines law as “an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state.12 Laws are real entities that make an empirical impression on the mind.13As one might suppose, much of the literature in this domain of the philosophy of law has been given over to attempts to define mediating positions between these “extremes” between natural law and positive law. Two such mediating views are articulated by Hart and Dworkins.
In his book, The Concept of Law, Hart does not seek to defend a narrow, partisan tradition, but rather departs from Austin’s version of positivism by undertaking a broad re-examination of the fundamental questions of jurisprudence, clarifying them and securing their importance.14This work is an analysis of the relation between law, coercion, and morality. It is an attempt to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands. Hart says that there is no logical connection between law and coercion or between law and morality. According to Hart, there is no necessary logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification.15Thus, his interpretation of the relation between law and morality defers from that of Ronald Dworkin, who suggests that every legal action has a moral dimension.
Hart’s analysis of the concept of law is based on several interrelated ideas.16 He maintains that a legal system, in contrast to a set of unrelated laws, consists of a union of primary rules of obligation and secondary rules. The most important secondary rule, which Hart calls “the rule of recognition,” specifies the criteria for identifying a law within the system. Example is the United States Constitution. Other secondary rules specify how primary rules are changed or modified and when primary rules have been violated.
Furthermore, in distinguishing primary rules of obligation from secondary rules, Hart takes the position that there is at least one type of law that imposes an obligation. This type tells citizens that they must not do this or must do that. Raising the crucial question of what an obligation with respect to legal rules means, Hart rejects the idea that to say that law imposes an obligation is merely to assert a prediction. Nor does he accept the view that laws imposing an obligation are simply coercive orders. Hart attempts to provide a general analysis of obligation in terms of social pressure. He sees this analysis as clearly distinguishing his view from those of Austin and other positivists.
Finally, in order to understand secondary and primary rules and the obligation the law imposes, Hart insists that the point of view of people who follow and apply the law must be considered. In particular, he emphasizes the importance of an internal point of view of the law.That is, the point of view of those who operate withinthe law rather than of external observers of the law. So, according to Hart, a legal theorist who wishesto understand a legal system must view the legal system from the point of view of an actor in the system. In Wittgenstein’s categories, perhaps, we might say that Hart views the legal system as a “form of life,” rather than merely as a formal system. How then, one might inquire, do Hart’s notions of “law” and “legal system” impact the crucial issue of judicial interpretation? Clearly, he has moved away from a strict legal formalism, the view that legal interpretation is always simply the straightforward application of a legal rule to a case. Hart does believe that there are instances where this formalist approach is appropriate, but he denies that it always is. Sometimes the judge must exercise discretion, and a mechanical application of rule to case is impossible.
Note the difficulty which this issue poses for a legal positivist who is equally displeased with a natural law form of “legal foundations” and the extreme position of rule scepticism (the notion that judges always have wide discretion and that the application of rules to cases plays no significant role in judicial decision).
Professor Ronald Dworkin has presented a fascinating critical tool in philosophy of law for critiquing legal positivism. Against Hart, Dworkin maintains that even in unclear cases there is always one correct decision, although what this decision might be is unknown. In addition, Dworkin argues that a judge’s decision in unclear cases is characteristically determined, and should be, entirely by principles specifying rights and entitlements. In his book, Law’s Empire, he describes principles as “a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality”.17 He argues that the difference between “principles” and “rules” is “logical” and related to the fact that principles (not rules) differ in their “weightiness” but not always recognizable from their form. Although “principles” are sometimes well-established for example, by judicial precedent, at times they do not become established until there is adjudication of “hard cases”. Yet these principles become really the justification of decisions in cases, which in turn become rules of law .18
Although Dworkin defends his concept of “legal principles” with explicit intent and systematic vigour in “The Model of Rules,” the nature and subtlety of his position emerges more clearly from his more popular article “On Not Prosecuting Civil Disobedience”. For our purposes here, however, the foregoing summary of Dworkin’s position will suffice. It would appear that the net effect of Dworkin’s firm opposition to legal positivism is a kind of conundrum for philosophy of law. On the one hand, Dworkin is able to demonstrate that the “rules” approach of H.L.A. Hart to “certifying” valid positive law does not account for the presence of “principles” within jurisprudence. Indeed, it does appear that “principles” in fact play a role in some judges arriving at decisions, interpreting their reasoning, and justifying their claims.
How then does Hart’s position respond to Dworkin’s challenge? We must recall that Hart sees law as an institution within a larger social system. It is a form of rule-making, rule-applying, and rule-enforcing behaviour. Theserules do indeed have connection to morality, both in origin, on occasion and in interpretation, as well as in applicationand enforcement. This overlapping of differing kinds of rules, in this case moral ones and legal ones, does not imply the dependence of one upon the other in any “ultimate” sense, any more than other social rules like “rules of etiquette” might be. What alternative, then, does Hart offer for explaining the “foundations” of law? Hart introduced the notion of “rules of recognition”.19
In his more mature thought, Hart has broadened his concept of “rules” applied by judges in their decisions to embrace “legal standards”. Although Hart now believes that these legal standards constrain a judge’s decision in unclear cases, he maintains that there may be alternative decisions in such cases that are equally justified in terms of these standards. In Dworkin’s view, Hart’s position remains truncated and unsatisfying.
Immediate contemporary issues come to mind about how natural law can be conceived. Professor William R. Long, in his article “contemporary issues: John Finnis”, commended the work of John Finnis who has singlehandedly tried to resurrect the natural law tradition in moral philosophy and law.20 He tries to offer a “neo-Aquinian” natural law philosophy which does not presuppose a divine being. It is an imperative to state clearly that the essence of law is to satisfy the quest of the human good.
The theory may be briefly state as follows: all rational agents set out to preserve or obtain things they perceive to be good for themselves. We need therefore to exercise practical reason to obtain that good at any one time. Those seven goods can be further clarified into three substantive and four reflexive goods.
It is worthy of note that Finnis’ legal theory is derivative of his moral theory. Law enters into the picture as a way of effecting the realisation of the basic goods. Therefore, on his theory of law, Finnis followed of the track of Aquinas. This signifies that laws should reflect the basic goods and flow from the principles of practical reasonableness. He seemingly makes common cause with people who are not theists today but want to ground their legal theory either in “eternal principles” or “basic principles”. Therefore, it goes a long way to invalidate the positivist’s view of ‘separation of law and morality.
William Long was able to detect certain complexities in the purview of its subject matter. There is a fact that people, who believe in natural law, throw around the word “moral” all the time. It folds back to basic goods, but it is a ‘crutch word’ used a lot to help the natural law philosophers to walk, but not useful for those who are seemingly limbs intact.
One difficulty which is deposited in Finnis’ work is whether the theory really reflects the rough and tumble of legislation, on the one hand, and whether it tries to “explain too much”. Would we easily explain law necessary by viewing it as an instrumental reality as it achieves the aim of separating law from morals? 21
Normative jurisprudence seeks to understand the moral basis for the law. They seek to shape and influence law. Arthur Ripstein, in his article Normative and Analytic Jurisprudence, considers fervently ‘what law is’ and ‘what law ought to be’ in the first part of his essay. He thereafter, considers two alternative ways of understanding how morality could be more closely integrated with law.22
Arthur Ripstein turns to John Austin distinctions of Normative and Analytic jurisprudence. As Austin conceives the distinction;
Analytical jurisprudence is the study of the concept or nature of law, considered in its most general and abstract level. Normative jurisprudence works with the already determined concept of law, and asks what the law should be, considering whether particular areas of law or doctrine are as they should be.23
The fact that the questions concern the structure of a legal system enters the analysis only indirectly, by way of structural concerns about the ability of ordinary citizens to know what the law requires in particular circumstances, or the competence of officials such as police officers and courts to bring moral factors to bear on particular cases.
Apart from Dworkin’s view that we cannot know what the law requires in a particular case without considering what it ought to be, morality is taken to be normatively defensible in more or less the terms on which it presents itself. The morality of interpersonal interaction includes such familiar requirements which include taking care not to injure other people, keeping off their property, honouring your contracts, and avoiding self-dealing while administering the affairs of others, as well as making up any wrongs you have committed.
On the traditional natural law view, positive law serves to make these familiar requirements sufficiently determinate and impartial in their application, so that they can in fact provide adequate guidance to action.24 For the natural law tradition which is clearly seen in Aristotle, Aquinas and Finnis, the basic negative prohibitions of law and morality are generated in relation to the goods most basic to practical reason.
Finally, the natural law view of normative jurisprudence rejects each of the Austinian residues; it found that morality is fundamentally rule-governed. For Arthur, without institutions, charged with applying familiar legal concepts, people could not live together on morally acceptable terms, because morality’s demands would be indeterminate, and each would have no choice but to do what seemed right in his or her eyes.
REFERENCES
1. W. Friedmann, Legal Theory, (Columbia university Press: New York) 5thed; 1967. P.95.
2. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941), p. 1014.
3. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941), p. 1014.
4. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941).
5. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941), 1193-94, p. 865.
6. Aristotle, Rhetorics in the Basic works of Aristotle,ed. R. Mckeon (New York: Random House, 1941), p. 1370.
7. Aristotle, Nichomachean Ethics in the Basic works of Aristotle, ed. R. Mckeon. (New York: Random House, 1941), p. 935.
8. T. Aquinas, Summa Theologica (Second and Revised Edition, 1920
Literally translated by Fathers of the English Dominican Provinceonline edition), I-II, q. 91. a. 1.
9. S. Guest et al., Jurisprudence and Legal Theory (London: University of London Press, 2004), pp. 65-66.
10. T. Aquinas, Summa Theologica (Second and Revised Edition, 1920
Literally translated by Fathers of the English Dominican Provinceonline edition), I-II, q. 94.
11. T. Aquinas, Summa Theologica (Second and Revised Edition, 1920
Literally translated by Fathers of the English Dominican Provinceonline edition) I-II, q. 94. a. 4.
12 H.L.A. Hart, Essay on Bentham’s Jurisprudence and Political Theory (New York: Clarendon press Oxford, 1982), p.110.
13. J.M. Finnis, Natural Law and Natural Rights (Oxford: Clarendon press, 1980), p. 4.
14. I. H. Peak,Jr: “Dworkin and Hart on the law: A Polanyian reconsideration,” in M. K. Baird & R. M. Baird (Eds.), Morality, Justice and the Law (Prometheus Books in Amherst, N.Y., 2007), p. 23.
15. H.L.A. Hart, The Concept of Law (Oxford: Clarendon press, 1994), p. 268.
16. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 77ff.
17. R. Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), p. 153.
18. R. Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), p. 157.
19. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), p. 94.
20.W. R. Long: Contemporary issues, John Finnis (11th April 2004). http://www.drbilllong.com/Jurisprudence/Finnis.html. (access 26. 02. 2012).
21. W. R. Long: Contemporary issues, John Finnis (11th April 2004). http://www.drbilllong.com/Jurisprudence/Finnis.html. (access 26. 02. 2012).
22. A. Ripstein: Normative and Analytic Jurisprudence.http://ivr-enc.info/index.Php?title=Normative_and_Analytic Jurisprudence. (access 28. 02. 2012).
23. A. Ripstein: Normative and Analytic Jurisprudence.http://ivr-enc.info/index.Php?title=Normative_and_Analytic Jurisprudence. (access 28. 02. 2012).
24. A. Ripstein: Normative and Analytic Jurisprudence.http://ivr- enc.info/index.Php?title=Normative_and_Analytic Jurisprudence. (access 28. 02. 2012).
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