Constitution, Society, and Leadership

Week 5 Unit 2Concepts of Law:

Natural Law

Christopher Dreisbach, Ph.D.Johns Hopkins University

Natural Law Theory Three basic tenets▪ Law comes from an external power ▪ Law and morality walk hand in hand▪ There are natural—inalienable—rights

Opposed to▪ Legal Positivism▪ Legal Realism

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Feinberg & Coleman, Ch. 1: The Natural Law Tradition Five selections▪ Thomas Aquinas, Selections from On Law,

Morality, and Politics

▪ Lon L. Fuller, Eight Ways to Fail to Make Law▪ Mark C. Murphy, Natural Law Jurisprudence▪ Jeremy Bentham, Of Laws in General▪ Lon L. Fuller, The Case of the Speluncean

Explorers3

On the Essence of Law: Four Points Law pertains to reason because▪ Law “binds one to act”▪ The rule and measure of human acts

is reason

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Law is directed to the common good because▪ Law pertains to reason▪ Law is a practical matter▪ Practical reason pertains to practical matters▪ Ultimate end (goal, purpose) of practical

reason is happiness▪ Ultimate happiness is universal▪ Not just individual

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Only the reason of a whole people is competent to make law because▪ Law aims at ordering for the common good▪ To order for the common good belongs to ▪ The whole people or A representative of the whole

people

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Promulgation is essential to law because▪ “Law is imposed on others by way of a rule or

measure”▪ “A rule or measure is imposed by being applied to

those who are ruled and measured by it”▪ “For law to bind, it must be applied”▪ Application implies promulgation

Law=“A certain ordinance of reason for the common good, made by him who has care of the community and promulgated.”

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Natural Law specifically Natural law may be added

to but not taken from because▪ “Many things for the benefit of

human life have been added”▪ Natural law is the first principle

of anything else

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The law of nature cannot be abolished from people’s hearts because▪ Natural law has general principles known to

all▪ Particular precepts deduced from natural law

may be know only to some

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Fuller, Eight Ways to Fail to Make Law Allegory of King Rex:

Failed as legislator and judge in 8 ways:1. No rules at all2. Failure to publicize the rules to the affected party3. “Abuse of retroactive legislation”4. “Failure to make rules understandable”

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5. “Enactment of contradictory rules”6. “Rules that require conduct beyond the powers of

the affected party”

7. “Introducing such frequent changes in the rules that the subject cannot orient his action by them”

8. “Failure of congruence between the rules as announced and their actual administration”

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Basic point Failure of law implies inability to obey

the law Inability to obey the law implies no duty

to obey the law Therefore, there is no moral duty to

obey bad lawGiven this moral ground of law, it

must be based on natural law

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Murphy, Natural Law Jurisprudence Point: A weak reading of natural law theory

in the abstract with regard to analytic jurisprudence is plausible and defensible

Natural law theory from analytic jurisprudence:▪ Tries to abstract natural law from ethics and

politics▪ Retains requirement that the law be reasonable▪ Contrary to positivism or realism

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Formulating the Natural Law thesis▪ Hart: Natural law theory claims that law and morality are

inseparable▪ Murphy: Hart is wrong▪ Better-Strong Reading: law sets standards for rational agents

But--Positivists: Law can be valid without setting rational standards

▪ Best-Weak Reading: There can be law with which it would be unreasonable to comply

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Jeremy Bentham, Of Laws in General Attacks natural law ▪ Especially in its form of customary law▪ Three premises▪ An alleged customary law is either quasi-law (at best)

or derived from statutory law▪ If quasi-law, then not law▪ If statutory, then positive, not natural

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Fuller, The Case of the Speluncean Explorers The Story: five explorers trapped in cave-in▪ Crisis last 32 days▪ At 20 days: explorer Roger Whetmore asks

rescuers by radio how long before rescue▪ Answer: at least 10 more days▪ Asks MD: could the 5 survive that long without food?

Answer: No▪ Asks MD: Could 4 survive if they ate one?

Answer: Yes

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After the rescue the 4 are found guilty of murder Requires death penalty Jury & judge appeal to executive to

commute the sentence

Executive awaits supreme court decision

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Supreme Court decision: split, so sentence is affirmed▪ Chief Justice Truepenny: Affirms▪ The law in this case is clear▪ Recommends executive clemency anyway

▪ Justice Foster: Denies▪ They were under natural law (survival!)

and not statutory law

▪ Justice Tatting: Neutral—The defendants▪ Had a choice▪ Were tried in a human court, not under natural law

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▪ Justice Keen: Affirms▪ If executive wants to commute, that’s up to him▪ The moral question in this case is legally irrelevant▪ They broke the law

▪ Justice Handy: Denies▪ Common sense says they are innocent▪ Public opinion says acquit▪ Four legitimate ways they could escape punishment

Judge finds no crime Prosecutor refuses to indict Jury acquits Executive pardons

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Fuller’s point:

The case cannot be settled by appeal to positive law alone.

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Constitution, Society, and Leadership

Week 5 Unit 2Concepts of Law:

Natural Law

Christopher Dreisbach, Ph.D.Johns Hopkins University