TRADITIONAL NATURAL LAW

LAW FOR THE COMMON GOOD

Professor Susan Dimock

York University 2007

Copyright © Susan Dimock 2007

Not to be used without written permission of the copyright holder.

St. Thomas Aquinas (1225-1275)

Law “is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”

  1. Ordinance of Reason

Practical Reason (rather than theoretical or speculative)

Two roles for reason: setting the end (goal) and choosing means appropriate to that end (goal)

Law directs action.

Law is a rule and measure of actions in two senses:

1) as that which rules and measures and 2) as that which is ruled and measured

2. Common Good

Reason dictates that the last (ultimate) end of human action is happiness. Thus law must direct actions in ways that produce happiness. But law is concerned with happiness for humans as members of a perfect (political) community. Whatever has as its end the common good has the nature of law (necessary but not sufficient).

  1. The law-maker (legislator)

Law directs actions in accordance with the common good. The role of making laws therefore belongs to the whole people or to him/her/them who is/are the vicegerent of the whole people (the person who has the care of the whole people).

Only the whole people can direct human action efficaciously; individual advice may be taken or not. To direct action, then, the law must have coercive power, which can come only from the whole people or those authorized to act on their behalf.

  1. Promulgation

In order to direct human action, the law must be promulgated or made known to those whose actions it is to direct.

No secret laws (must be made public).

No retroactive laws (must be prospective).

Four Kinds of Law: Eternal, Natural, Human and Divine

Eternal law

  • Made by God as lawmaker;
  • Directs the universe in accord with divine reason;
  • Directs the behaviour of everything (inanimate and animate): natural inclinations/tendencies/instincts;
  • End toward which everything is directed is God himself: limited knowledge of: but if God is benevolent, the end must be good;
  • Known both by divine revelation (“the divine word”) and by study of the empirical world (“writing in the book of life”).

Natural Law

  • Made by God;
  • Directed to rational creatures;
  • Commands the pursuit of good and avoidance of evil;
  • The end is our good according to our nature;
  • Known by practical reason.

Reasoning about natural law:

First principle (fundamental truth or motivating force upon which all others are based) of practical reason: “good is that which all things seek after”.

First precept (commandment or direction meant as a rule of action or conduct) of natural law: “good is to be done and pursued, and evil is to be avoided”.

“All other precepts of the natural law are based upon this, so that whatever the practical reason apprehends as man’s good (or evil) belongs to the precepts of natural law as something to be dome or avoided.”

Self-evident

But what is good?

Natural inclinations apprehended by practical reason as good; human nature as guide to natural law precepts.

  • Nature as a substance: self-preservation.
  • Nature as an animal: sexual intercourse and raising of offspring.
  • Nature as a rational creature: to seek knowledge and live in society.

Specific conclusions drawn from natural law by (a) demonstration / deduction and (b) determination.

Human laws by deduction from natural law: same for all, have force of both natural and human law (violations are both morally and legally wrong, mala in se)

Human laws as determinations of natural law: variable across societies, have only the force of human law (violations are legally wrong but not independently morally wrong, male prohibita)

Human Law

Made by human beings for other human beings.

Direct human action in accordance with reason provided the human law is either a deduction or determination of natural law

Known by positive enactment and promulgation.

Why we need human law in addition to natural law:

Natural law is general: there are exceptions (e.g., prohibitions on violence)

Natural law is general: possibility of error in determining what it requires

Natural law is under-determined

Human beings need training to achieve full virtue; human law is a tool for moral education

The natural inclinations we have to do good and refrain from evil can be corrupted or overwhelmed by contrary passions or bad habits; need to enforce the natural law with coercion; restraint of vice to protect peace, order and security.

Why written law is better than animate justice:

1)easier to find a few wise people to frame good laws than many wise people to decide individual cases

2)better to consider many possible cases in the abstract than to frame law based on individual situations

3)lawgivers consider situations that are future and abstract, but individual judges decide present cases in which their own interests or passions may be involved; consideration of impartiality.

Judges must decide “facts”.

Human law must be just: An unjust law is no law at all

Augustine: “that which is not just seems to be no law at all”

‘Unjust laws’ are contrary to reason, contrary to natural law, perversions of law, having “the nature, not of law, but of violence”

Justice: “Justice is a habit whereby a man renders to each one his due by a constant and perpetual will.”

Justice is a social virtue, pertaining to our relations with others.

Justice is related to equality; what people are due is (1) equality in the exchange of goods and services, (2) the right to possess and use whatever one has justly acquired, (3) rights arising from various role and relationships, such as the rights of parents and children relative to each other, and (4) personal rights such as the right to be free from force or violence at the hands of others.

Unjust laws deny to the governed what they are due.

“Laws framed by man are either just or unjust.” Three requirements for laws to be just:

  1. They must have as their end the common good (just end).
  2. They must be within the authority of the lawmaker (just authority/author).
  3. They must impose proportionate burdens upon their subjects (just form).

A law will be unjust, because contrary to what people are due, if it violates any of these three conditions.

If a law is unjust, it does not have the binding force of genuine law, the power to “bind a man in conscience”.

One may disobey such laws, though not if doing so will cause “scandal or disturbance”.

A human law might also be unjust because it is contrary to divine law. If human law contradicts divine law it is unjust (which conditions does it violate?) and must not be obeyed.

The tenet that unjust laws are not genuine laws is common to natural law theorists. The basic reason for them thinking so is that they believe genuine laws impose a moral obligation of obedience upon those for whom they are laws. Genuine laws bind in conscience.

Laws bind in two ways:

1)binding in conscience: a moral obligation to obey; based on the directive power of law as derived from natural law; all genuine laws impose such obligations, on both the law-makers and on the governed;

2)binding in terms of its coercive power; subjects so bound if liable to punishment for disobedience; even unjust laws may have this kind of binding force; relative to law-making authority within a given legal jurisdiction; law-makers are not bound by law in this sense, nor are the virtuous, but only the wicked are thus bound.

Our obligation to obey the law does not require that we blindly obey. In exceptional cases, we might rightly disobey the letter of the law in order to conform to its spirit (which is the common good). Exceptional cases are unavoidable given the general nature of laws.

The intention of lawmakers is to make citizens good/virtuous. Lawmakers also intend their laws to be followed. Thus law might make citizens good in two ways:

1)following genuine laws aimed at what is actually good leads to virtue;

2)even if laws fail to be genuine, obedience exemplifies the political virtue of law-abidingness.

Human law is not sufficient to make people good, however, because

  • human law cannot prohibit all vices; human beings are imperfect in virtue and so law cannot demand perfect virtue (ought implies can; it must be possible for the average person to obey the law; laws which are too difficult to obey result in a weakening of respect for law)
  • human law does not enforce all the virtues, but only those ordained to the common good; the private or personal virtues are beyond its scope

Divine Law

Created by God to direct the actions of human beings; promulgated by revelation.

Needed as a supplement to natural and human law for four reasons:

1)natural and human law directs toward our end of natural happiness, but we also have eternal happiness as our end; no natural (human) reason can know what is necessary to achieve that supernatural end;

2)human laws and human interpretations of natural law are fallible and may be in error; thus it was necessary for humans to be directed by an infallible law so that they could be sure of what they are to do and avoid;

3)human laws can regulate only external actions, but full virtue requires correct “internal movements” as well – desires, passions, motives, etc.; divine law is necessary to direct such interior acts.

4)It would be impossible for human laws to forbid and punish all forms of sin, and even if it were possible, it would be undesirable; we need divine law to ensure that all sin is prohibited and punished.

Changes to law:

Natural law is universally and eternally valid in its basic precepts. Nothing that belongs to the core of natural law can cease to be law. But natural law can be added to by human law.

Human law can be changed by the will of the lawmaker.

  • When human reason, or our understanding of what is for the common good, changes (improves).
  • When human circumstances change (material or social).

Human laws should not be changed lightly, however. Much of the respect for law comes from its being customary. Changing laws severs the connection between law and custom and so weakens the respect for law. Should only be done to secure a significant good/improvement in the law or to correct a serious shortcoming/injustice in the law.

Custom itself can become law or abolish law. Custom becomes law when a free people express their will through actions rather than speech. Custom becomes law among a governed people when their lawmakers allow a custom to prevail, thereby implicitly endorsing it by their tolerance.

The role of Judgesin law:

Judges personify justice; their role is to issue judgments concerning matters of right or justice.

Two kinds of judgments of right:

  • Natural right (by its very nature)
  • Positive right (agreement or convention)

Both are contained in the written law, though natural right has its authority from natural law while positive right has its authority from positive law only. Judges must enforce both kinds of rights, and so they must enforce the written law.

But judges should not enforce any law that contravenes natural rights, which are unjust. Judges must do equity to the parties, and judge in accordance with the common good and natural right that the lawgiver is supposed to will (even if the lawgiver has gone wrong and made a written law contrary to such ends).

The right to judge, and the corresponding obligation to act in accord with that judgment on the part of the parties to the dispute, must rest on public authority. Judges interpret laws, and they can only have this authority from the lawmaking authority itself.

Conclusion:

From the foregoing we have the following inclusion conditions for law:

  1. a directive of reason
  2. aimed at the common good
  3. promulgated by a lawmaking authority
  4. pertaining to a complete community
  5. leading people to or restraining them from certain actions
  6. general
  7. having coercive power
  8. intended to be obeyed
  9. imposing a moral obligation of obedience.

Some of these conditions are normative or evaluative, while others are formal or non-evaluative.

A genuine law is one that meets all of the conditions; it is unconditionally good, and obedience to it is unconditionally good.

A ‘law’ which meets the formal conditions but fails to meet one of more of the evaluative conditions “has something of the nature of law” about it, but it is not unconditionally law and obedience to it is not unconditionally but only relatively good.

Natural law theorists provide criteria of genuine or valid law. What makes them different than other theories is that their criteria include explicitly normative requirements: they build normative criteria into the definition of law, thus making normative conditions requirements of legal validity.

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