Q1. The Critique of Classical Natural Law Theory Render It Worthless as A guide For Contemporary Law-Making. Discuss. Introduction Natural law regardless of its various critiques is still very useful and vital to present-day law-making. There have been many debates about the theory of natural law and these debates have aimed to point out its strengths, weaknesses and in recent times if it still fits to be recognized amongst the plethora of theories present today, that is, its usefulness. Law is often seen as a code of conduct which helps us identify that which is right from that which is wrong. It was further defined by St Thomas Aquinas (1225-1274), one of the foremost proponents of natural law as “Nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” “Summa Theologiae (Summary of Theology)”, Question 90, Art. 4. Natural Law Natural law as a theory is as old as the notion of law itself and can be traced historically to the pre-Socratic, Plato and Aristotle era and has its roots in the ancient Greek and Roman philosophy. Although, there is no commonly held definition of natural law, a very good definition ‘is that it provides a name for the point of intersection between law and morals.’ A Passerin D’Entrѐves, Natural Law (London: Hutchinson, 1970), 116. It was seen as the ultimate determinant of what is right from that which is wrong. Natural law as an explicit theory emerged with the Stoics and was the only philosophy of law in the sixteenth and seventeenth centuries. Even though the term does not mean a body of laws, a law of nature or a natural body of law, it was originally “an idea whose purpose was to explain the nature of morality, not the nature of law.” James Penner and Emmanuel Melissaris, McCoubrey & White’s Textbook on Jurisprudence (5th edn, OUP 2012), 11. For example, if one tells a lie or steals something which does not belong to him or anything at all which he believes to be wrong, that feeling of guilt shows that he knows what he has done is not morally right. Natural law holds the belief that law and morality are two sides to a coin. It is however important to note “that the principles of natural law, thus understood, are traced out not only in moral philosophy or ethics and ‘individual’ conduct, but also in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen. For those principles justify the exercise of authority in community.” John Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011), 23 Natural Law Theorists Natural Law was developed and systemized by scholars like Plato, Aristotle, St Thomas Aquinas, and St Augustine amongst others. Joseph Raz, a Legal Positivism advocate defines ‘Natural Law theorists’ as ‘those philosophers who think it a criterion of adequacy for theories of law that they show… that it is a necessary truth that every law has a moral worth’. Joseph Raz, Practical Reason and Norms (Oxford Scholarship Online 2012), 162. They believe that society should be ordered in such a way so as to assist man to fulfil his purpose and that rules about the ordering of the society are the same for all mankind and are also constant through time. The sources of law for these natural law theorists differ. For example, Plato and Socrates trace their source to reasoning. For Justinian (AD 483-565), the Roman emperor, he traced his source to divine providence and St Thomas Aquinas, the theologian traced his to God. He believed that the law is placed in human beings by God and serves as an eternal law for all. According to the Stoics whose key writer is Cicero, natural law has a number of characteristics, one of which is that virtue is the highest good. Also, humans should reject a life of self-indulgence and comply with the laws of nature which will have them live a life of harmony without harming people. They also believed that there are a number of qualities that people should aspire to which are tolerance, forgiveness, compassion, uprightness and honesty. These qualities are identifiable by reason and are also universal. Lastly, he believed that natural law is unchanging, universal and valid throughout time. It is the same as always regardless of the time or culture. He stated that: True law… cannot be contradicted by any other law, and is not liable either to deterioration or abrogation. Neither the Senate nor the people can give us any dispensation for not obeying this universal law of justice. …It is not one thing at Rome, and another at Athens; one thing today and another tomorrow, but in all times and nations this universal law must forever reign, eternal and imperishable. Marcus Tullius Cicero, On the Republic, Charles Duke Yonge, trans. (London: G.G. Bohn, 183), III, 22. For Aristotle, he believed that the universe is dynamic and that humans due to their ability to reason, they were a creative fit for life and society. He argued that one of the products of reason for man was for him to become a politikon zoˉon, a political animal because he is a social creature with the power of moral reasoning. Aristotle, Politics, 1253a.7 He also believed that humans have a potential to do good and it was the proper function of the state to facilitate this. The teachings of Christ also provided a code of conduct for people. Early theologians like St Augustine and St Thomas Aquinas started to develop the teaching into a higher natural law. St Augustine was of the idea that people are constantly torn between good and evil so therefore people should submit to the will of God. He also believed that man-made law is inferior, has no moral force and the will of God should be the highest or eternal law. St Thomas Aquinas, on the other hand, identified divine rules, as that which is revealed to man through scriptures. He also believed that human actions are discoverable through reasoning. Taking into account of the individual beliefs of these natural law theorists, the basic idea which is universal to them all is that man uses his reasoning to determine right and wrong using the revelation of gods or Gods and this revelation would shape the way he acts. James Penner and Emmanuel Melissaris, McCoubrey & White’s Textbook on Jurisprudence (5th edn, OUP 2012), 11. Also that this revelation from the gods and the reasoning laid down rules for behaviour, hence the word – Natural law, that is, it wasn’t created unlike man-made laws and should be superior. However, a number of critiques have been raised by philosophers due to various reasons. The first and foremost I would like to consider is the “what is to what ought to be” problem. The locus classicus of this school of thought is Scottish philosopher and historian David Hume’s Treatise of Human Nature where he stated that: in every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, ‘tis necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from the others, which are entirely different from it. David Hume, Treatise of Human Nature (Buffalo: Prometheus Books, 1992), 469. Hume’s concern was that it was not easy to deduce from what is to what ought to be which the naturalists go by. Human behaviour is unpredictable and is due to change at any point in time. This law aims to reveal the careless way many philosophers treat the laws of logic. Another popular critique was that raised by Austrian legal positivist scholar, Hans Kelsen which directly opposes the natural theory law. According to him, he disagrees with the natural law theorists who identify law as an absolute value which can be unchanging across cultures. He stresses the dynamism of law in that law is created and re-created through time. It is important to note that law is not static and it varies from society to society. For example, same-sex marriage which is legal in most countries in Europe is a crime in a lot of countries in Africa. Also, same-sex marriage was also a crime in these European countries in previous times but due to the changes in law, it has become legal. Legal positivism whose two great protagonists are Jeremy Bentham and John Austin also critique the natural law theory by denying the relationship between law and morality. Put simply, legal positivism, like scientific positivism, rejects the view – held by natural lawyers – that law exists independently from human enactment. Raymond Wacks, Philosophy of Law: A Very Short Introduction (2nd edn, OUP 2014), 25 Bentham and Austin instead found the origin of law in the command of a sovereign hence, their command law theory. They believe that law is that which is decreed that is, that which is made by the authority who has the right to make law. It doesn’t matter what the law contains; might be moral or immoral. The most important element is that the law is made by a body which has the authority to make it. For example, according to the positivists, a law made by the parliament can be considered as law since it is made by a body which has the authority to do so. Having considered the critiques of the natural law theory, the common question is if the natural law theory is still in existence in the twenty-first century and if the critiques render the theory worthless as a guide for contemporary lawmaking. There is no correct answer to this question. However, some events have brought about the reawakening of the natural law theory according to Raymond Wacks. Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (5th edn, OUP 2017), 29 Firstly, the post-war recognition of human rights and how these human rights have been included in various declarations over the world like the Charter of the United Nations, the Universal Declaration of Human Rights, the European Convention on Human Rights amongst others. Although, in this declarations, it is not seen as a ‘higher law’ rather it serves as a guideline or principle. That being so, the Universal Declaration of Human Rights sets out its terms as ‘a common standard of achievement for all peoples and all nations’. Furthermore, the aftermath of the Nuremberg war trials which confirmed the principle that there are indeed certain acts known as ‘crimes against humanity’ even though these crimes were not exclusively existent in positive law. Although the judges in these cases did not use natural law as the general law, some traces of it can be seen in their judgments where it is seen that the law isn’t the sole dictator of what is right or wrong. Thirdly, the expansion of constitutional safeguards for human or civil rights in various parts of the world. For example, the American Bill of rights and the West German Basic Law. In conclusion, although natural law has had its ups and downs, it is, however, wrong to conclude that it does not contribute to contemporary law-making when in fact it does. It might not be stated explicitly in our various laws but it is still used as a guideline or stepping stone in contemporary law-making. 4 | Page