Category: Natural Law Theory

‘Natural law theory’ is a label that has been applied to theories of ethics, theories of politics, theories of civil law, and theories of religious morality. We will be concerned only with natural law theories of ethics: while such views arguably have some interesting implications for law, politics, and religious morality, these implications will not be our focus here.

This article has two central objectives. First, it aims to identify the defining features of natural law moral theory. Second, it aims to identify some of the main theoretical options that natural law theorists face in formulating a precise view within the constraints set by these defining features and some of the difficulties for each of these options. It will not, however, attempt to recount the history of the development of natural law thought.

Even though we have already confined ‘natural law theory’ to its use as a term that marks off a certain class of ethical theories, we still have a confusing variety of meanings to contend with. Some writers use the term with such a broad meaning that any moral theory that is a version of moral realism — that is, any moral theory that holds that some positive moral claims are literally true (for this conception of moral realism, see Sayre-McCord 1988)— counts as a natural law view. Some use it so narrowly that no moral theory that is not grounded in a very specific form of Aristotelian teleology could count as a natural law view. It might be thought that there is nothing that can be done to begin a discussion of natural law theory in ethics other than to stipulate a meaning for ‘natural law theory’ and to proceed from there. But there is a better way of proceeding, one that takes as its starting point the central role that the moral theorizing of Thomas Aquinas plays in the natural law tradition. If any moral theory is a theory of natural law, it is Aquinas’s. (Every introductory ethics anthology that includes material on natural law theory includes material by or about Aquinas; every encyclopedia article on natural law thought refers to Aquinas.) It would seem sensible, then, to take Aquinas’s natural law theory as the central case of a natural law position: of theories that exhibit all of the key features of Aquinas’s natural law view we can say that they are clearly natural law theories; of theories that exhibit few of them we can say that they are clearly not natural law theories; and of theories that exhibit many but not all of them we can say that they are in the neighborhood of the natural law view but nonetheless must be viewed as at most deviant cases of that position. There remain, no doubt, questions about how we determine what are to count as the key features of Aquinas’s position. But we may take as the key features those theses about natural law that structure his overall moral view and which provide the basis for other theses about the natural law that he affirms.

For Aquinas, there are two key features of the natural law, features the acknowledgment of which structures his discussion of the natural law at Question 94 of the Prima Secundae of the Summa Theologiae. The first is that, when we focus on God’s role as the giver of the natural law, the natural law is just one aspect of divine providence; and so the theory of natural law is from that perspective just one part among others of the theory of divine providence. The second is that, when we focus on the human’s role as recipient of the natural law, the natural law constitutes the principles of practical rationality, those principles by which human action is to be judged as reasonable or unreasonable; and so the theory of natural law is from that perspective the preeminent part of the theory of practical rationality.

While our main focus will be on the status of the natural law as constituting the principles of practical rationality, we should consider for a moment at least the importance within Aquinas’s view of the claim that the natural law is an aspect of divine providence. The fundamental thesis affirmed here by Aquinas is that the natural law is a participation in the eternal law. The eternal law, for Aquinas, is that rational plan by which all creation is ordered; the natural law is the way that the human being “participates” in the eternal law. While nonrational beings have a share in the eternal law only by being determined by it — their action nonfreely results from their determinate natures, natures the existence of which results from God’s will in accordance with God’s eternal plan — rational beings like us are able to grasp our share in the eternal law and freely act on it. It is this feature of the natural law that justifies, on Aquinas’s view, our calling the natural law ‘law.’ For law, as Aquinas defines it, is a rule of action put into place by one who has care of the community; and as God has care of the entire universe, God’s choosing to bring into existence beings who can act freely and in accordance with principles of reason is enough to justify our thinking of those principles of reason as law.

When we focus on the recipient of the natural law, that is, us human beings, the thesis of Aquinas’s natural law theory that comes to the fore is that the natural law constitutes the basic principles of practical rationality for human beings, and has this status by nature. The notion that the natural law constitutes the basic principles of practical rationality implies, for Aquinas, both that the precepts of the natural law are universally binding by nature and that the precepts of the natural law are universally knowable by nature.

The precepts of the natural law are binding by nature: no beings could share our human nature yet fail to be bound by the precepts of the natural law. This is so because these precepts direct us toward the good as such and various particular goods. The good and goods provide reasons for us rational beings to act, to pursue the good and these particular goods. As good is what is perfective of us given the natures that we have (ST Ia 5, 1), the good and these various goods have their status as such naturally. It is sufficient for certain things to be good that we have the natures that we have; it is in virtue of our common human nature that the good for us is what it is.

The precepts of the natural law are also knowable by nature. All human beings possess a basic knowledge of the principles of the natural law (ST IaIIae 94, 4). This knowledge is exhibited in our intrinsic directedness toward the various goods that the natural law enjoins us to pursue, and we can make this implicit awareness explicit and propositional through reflection on practice. Aquinas takes it that there is a core of practical knowledge that all human beings have, even if the implications of that knowledge can be hard to work out or the efficacy of that knowledge can be thwarted by strong emotion or evil dispositions (ST IaIIae 94, 6).

If Aquinas’s view is paradigmatic of the natural law position, and these two theses — that from the God’s-eye point of view, it is law through its place in the scheme of divine providence, and from the human’s-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason — are the basic features of the natural law as Aquinas understands it, then it follows that paradigmatic natural law theory is incompatible with several views in metaphysics and moral philosophy. On the side of metaphysics, it is clear that the natural law view is incompatible with atheism: one cannot have a theory of divine providence without a divine being. It is also clear that the paradigmatic natural law view rules out a deism on which there is a divine being but that divine being has no interest in human matters. Nor can one be an agnostic while affirming the paradigmatic natural law view: for agnosticism is the refusal to commit either to God’s existence or nonexistence, whereas the paradigmatic natural law view involves a commitment to God’s existence. On the side of moral philosophy, it is clear that the natural law view is incompatible with a nihilism about value, that is, the rejection of the existence of values. It is also incompatible with relativist and conventionalist views, on which the status of value is entirely relative to one’s community or determined entirely by convention. It is also incompatible with a wholesale skepticism about value, for the natural law view commits one to holding that certain claims about the good are in fact knowable, indeed, knowable by all.

1.3 The substance of the natural law view

The center of Aquinas’s natural law view as described thus far concerns what we might call the metaphysics of morals: its role in divine providence and the universally authoritative character of its norms. What, though, of the normative content of Aquinas’s natural law position? Is there anything distinctive about the normative natural law position? Here it is difficult to say much that is uncontroversial, but we can say a sufficient amount about Aquinas’s natural law theory to make clear that it is an interesting alternative to utilitarian (and more generally consequentialist) ethics, Kantian views, and standard Aristotelian positions. (For a magisterial treatment of Aquinas’s natural law ethic, see Rhonheimer 2000.)

Aquinas says that the fundamental principle of the natural law is that good is to be done and evil avoided (ST IaIIae 94, 2). This is, one might say, a principle of intelligibility of action (cf. Grisez 1965): only action that can be understood as conforming with this principle, as carried out under the idea that good is to be sought and bad avoided, can be understood as an intelligible action. But no one can in acting simply pursue good — one has to pursue some particular good. And Aquinas holds that we know immediately, by inclination, that there are a variety of things that count as good and thus to be pursued — life, procreation, knowledge, society, and reasonable conduct (ST IaIIae 94, 2; 94, 3) are all mentioned by Aquinas (though it is not clear whether the mentioned items are supposed to constitute an exhaustive list).

So on Aquinas’s view it is the good that is fundamental: whether an action, or type of action, is right is logically posterior to whether that action brings about or realizes or is some good. The good is, on Aquinas’s view, prior to the right. But on Aquinas’s view we are, somehow, able to reason from these principles about goods to guidelines about how these goods are to be pursued. Aquinas’s thoughts are along the following lines: first, there are certain ways of acting in response to the basic human goods that are intrinsically flawed; and second, for an act to be right, or reasonable, is for it to be an act that is in no way intrinsically flawed.

The important task, then, is to identify the ways in which an act can be intrinsically flawed. Aquinas does not obviously identify some master principle that one can use to determine whether an act is intrinsically flawed (though for an attempt to identify such a master principle in Aquinas’s work see, though he does indicate where to look — we are to look at the features that individuate acts, such as their objects, their ends, their circumstances, and so forth. An act might be flawed through a mismatch of object and end — that is, between the immediate aim of the action and its more distant point. If one were, for example, to regulate one’s pursuit of a greater good in light of a lesser good — if, for example, one were to seek friendship with God for the sake of mere bodily survival rather than vice versa — that would count as an unreasonable act. An act might be flawed through the circumstances: while one is bound to profess one’s belief in God, there are certain circumstances in which it is inappropriate to do so. An act might be flawed merely through its intention: to direct oneself against a good — as in murder, and lying, and blasphemy — is always to act in an unfitting way. Aquinas has no illusions that we will be able to state principles of conduct that exhaustively determine right conduct, as if for every situation in which there is a correct choice to be made there will be a rule that covers the situation. He allows for the Aristotelian insight that the particulars of the situation always outstrip one’s rules, so that one will always need the moral and intellectual virtues in order to act well. But he denies that this means that there are no principles of right conduct that hold everywhere and always, and some even absolutely. On Aquinas’s view, killing of the innocent is always wrong, as is lying, adultery, sodomy, and blasphemy; and that they are always wrong is a matter of natural law.

Part of the interest of Aquinas’s substantive natural law ethic lies in its not falling into the neat contemporary categories for moral theories. His natural law view understands principles of right to be grounded in principles of good; on this Aquinas sides with utilitarians, and consequentialists generally, against Kantians. But Aquinas would deny that the principles of the right enjoin us to maximize the good — while he allows that considerations of the greater good have a role in practical reasoning, action can be irremediably flawed merely through (e.g.) badness of intention, flawed such that no good consequences that flow from the action would be sufficient to justify it — and in this Aquinas sides with the Kantians against the utilitarians and consequentialists of other stripes. And while Aquinas is in some ways Aristotelian, and recognizes that virtue will always be required in order to hit the mark in a situation of choice, he rejects the view commonly ascribed to Aristotle (for doubts that it is Aristotle’s view; see Irwin 2000) that there are no universally true general principles of right. The natural law view rejects wholesale particularism.

To summarize: the paradigmatic natural law view holds that the natural law is given by God; it is naturally authoritative over all human beings; and it is naturally knowable by all human beings. Further, it holds that the good is prior to the right, that right action is action that responds nondefectively to the good, that there are a variety of ways in which action can be defective with respect to the good, and that some of these ways can be captured and formulated as general rules.

Aquinas was not the only historically important paradigmatic natural law theorist. Thomas Hobbes, for example, was also a paradigmatic natural law theorist. He held that the laws of nature are divine law, that all humans are bound by them, and that it is easy to know at least the basics of the natural law. He held that the fundamental good is self-preservation, and that the laws of nature direct the way to this good. He offered a catalog of laws of nature that constitute the “true moral philosophy”. There are also a number of contemporary writers that affirm the paradigmatic view. These writers, not surprisingly, trace their views to Aquinas as the major influence, though they do not claim to reproduce his views in detail.

It is also easy to identify a number of writers, both historical and contemporary, whose views are easily called natural law views, through sharing all but one or two of the features of Aquinas’s paradigmatic position. Recently there have been nontheistic writers in the natural law tradition, who deny (1): see, for example, the work of Michael Moore (1982, 1996) and Philippa Foot (2001). There were a number of post-Thomistic writers in the medieval and modern periods who in some way denied (2), the natural authority of the natural law, holding that while the content of the natural law is fixed either wholly or in part by human nature, its preceptive power could only come from an additional divine command: the views of John Duns Scotus, Francisco Suarez, and John Locke fit this mold. Arguably the Stoics were natural law thinkers, but they seem to deny (4), holding the right to be prior to the good (see Striker 1986). Some contemporary theological ethicists called ‘proportionalists’ (e.g. Hallett 1995) have taken up the natural law view with a consequentialist twist, denying (6). (For a discussion of the relationship between proportionalism and natural law theory see Kaczor 2002.) And while some see Aristotle as being the source of the natural law tradition, some have argued that his central appeal to the insight of the person of practical wisdom as setting the final standard for right action precludes the possibility of the sort of general rules that would (at least in a theistic context) make Aristotle’s ethics a natural law position. There is of course no clear answer to the question of when a view ceases to be a natural law theory, though a nonparadigmatic one, and becomes no natural law theory at all.

Even within the constraints set by the theses that constitute the paradigmatic natural law position, there are a number of variations possible in the view. Here we will consider several issues that must be addressed by every particular natural law view, and some difficulties that arise for possible responses to these issues.

Natural law theorists have at least three answers available to them. The first answer is Hobbesian, and proceeds on the basis of a subjectivist theory of the good. On subjectivist theories of the good, what makes it true that something is good is that it is desired, or liked, or in some way is the object of one’s pro-attitudes, or would be the object of one’s pro-attitudes in some suitable conditions. One might think that to affirm a subjectivist theory of the good is to reject natural law theory, given the immense variation in human desire. But this is not so. For one might hold that human beings’ common nature, their similarity in physiological constitution, makes them such as to have some desires in common, and these desires may be so central to human aims and purposes that we can build important and correct precepts of rationality around them. This is in fact what Hobbes claims. For while on the Hobbesian view what is good is what is desired, Hobbes thinks that humans are similarly constructed so that for each human (when he or she is properly biologically functioning) his or her central aim is the avoidance of violent death. Thus Hobbes is able to build his entire natural law theory around a single good, the good of self-preservation, which is so important to human life that exceptionlessly binding precepts can be formulated with reference to its achievement.

The second answer is Aristotelian. The idea here is to reject a subjectivism about the good, holding that what makes it true that something is good is not that it stands in some relation to desire but rather that it is somehow perfective or completing of a being, where what is perfective or completing of a being depends on that being’s nature. So what is good for an oak is what is completing or perfective of the oak, and this depends on the kind of thing that an oak is by nature; and what is good for a dog is what is completing or perfective of the dog, and this depends on the kind of thing that a dog is by nature; and what is good for a human depends on what is completing or perfective of a human, and this depends on the kind of thing a human is by nature. So the fact of variability of desire is not on its own enough to cast doubt on the natural law universal goods thesis: as the good is not defined fundamentally by reference to desire, the fact of variation in desire is not enough to raise questions about universal goods. This is the view affirmed by Aquinas, and the majority of adherents to the natural law tradition.

The third answer is Platonic. Like the Aristotelian view, it rejects a subjectivism about the good. But it does not hold that the good is to be understood in terms of human nature. The role of human nature is not to define or set the good, but merely to define what the possibilities of human achievement are. So one might think that some things — knowledge, beauty, etc. — are just good in themselves, apart from any reference to human desire or perfection, but hold that the pursuit of these are only part of the natural law insofar as they fall within the ambit of human practical possibility. This view of the good is not much defended — in part because of the scathing criticism offered of Plato’s view by Aristotle in the Nicomachean Ethics — but it was affirmed by Iris Murdoch (1970), and forms part of the natural law view defended by Michael Moore (1982).

None of these answers is without difficulties. While there are contemporary defenders of Hobbesian moral theories, there is no one who is on record defending Hobbes’s interesting combination of a thoroughgoing subjectivism about the good along with an account of a dominant substantive good around which the moral rules are formulated. The basic reason for this just seems to be that Hobbes’s arguments that the human desire for self-preservation is such an entirely dominant desire are implausible, and there do not seem to be any better arguments available. The Platonic version of the view has struck many as both too metaphysically ornate to be defensible, on one hand, and as not fitting very well with a conception of ethics grounded in nature, on the other. While the Aristotelian version of the view has also been charged with some of the metaphysical excesses that the Platonist view allegedly countenances, most contemporary natural law theory is Aristotelian in its orientation, holding that there is still good reason to hold to an understanding of flourishing in nature and that none of the advances of modern science has called this part of the Aristotelian view into question.

Return to Aquinas’s paradigmatic natural law position. His account of our knowledge of the fundamental goods has been understood in different ways. Some have understood Aquinas as affirming a theory of our knowledge of the fundamental precepts of the natural law that we can label ‘derivationism.’ The idea here is that we can derive from a metaphysical study of human nature and its potentialities and actualizations the conclusion that certain things are good for human beings, and thus that the primary precepts of the natural law bid us to pursue these things. One can imagine a Hobbesian version of this view as well. One might say that by a careful study of the human being’s desire-forming mechanisms, one can see that there are certain things that would be necessarily desired by biologically sound human beings, and thus that the human good includes these items. (Hobbes in fact produces such arguments at. While a natural law theorist might downplay the importance of derivationist knowledge of the natural law, it is hard to see how a consistent natural law theorist could entirely reject the possibility of such knowledge, given the view that we can provide a substantial account of how the human good is grounded in nature: for to show that the human good is grounded in nature is to show that human nature explains why certain things are goods, and it is hard to see how one could affirm that claim while entirely rejecting the possibility of derivationist knowledge of the human good. Some have thought, echoing criticisms of natural law theory by those entirely hostile to it, that derivationist theories of practical knowledge fall prey to ‘Hume’s Law,’ that it is impossible to derive an ‘ought’ from an ‘is,’ that is, any normative truth from any set of nonnormative truths. The most that this can show, though, is that the natural law theorist needs an account of those bridge truths that enable us to move between claims about human nature and claims about human goods.

It must be conceded, however, that a consistent natural law theorist could hardly hold that derivationist knowledge of the human good is the only such knowledge possible. For it is part of the paradigm natural law view that the basic principles of the natural law are known by all, and the sort of arguments that would need to be made in order to produce derivationist knowledge of the human good are certainly not had (or even have-able) by all. (Recently Jensen (2015) has offered a thorough defense of a derivationist account that aims to take such worries into account.) Another way that Aquinas’s account of knowledge of the fundamental goods has been understood — and it is an understanding better able to come to grips with the widespread knowledge of fundamental goods — can be labeled ‘inclinationism.’ On this view, one’s explicit grasp of the fundamental goods follows upon but is not derived from one’s persistent directedness toward the pursuit of certain ends, which directedness involves an implicit grasp of these items as good. So human beings exhibit a tendency to pursue life, and knowledge, and friendship, and so forth; and reflection on this tendency occasions an immediate grasp of the truth that life, and knowledge, and friendship, and so forth are goods. The affirmation of the claims ‘life is good,’ ‘knowledge is good,’ ‘friendship is good,’ etc. makes intelligible the persistent pursuit of these ends by rational beings like us.

While inclinationism and derivationism are distinct methods, they are by no means exclusive: one can hold that knowledge of fundamental goods is possible in both ways. Indeed, it may well be that one way of knowing can supplement and correct the other. There may be some goods that are easier to recognize when taking the speculative point of view, the point of view of the observer of human nature and its potentialities, and some that are easier to recognize when taking the practical point of view, the point of view of the actively engaged in human life. Indeed, by connecting nature and the human good so tightly, the natural law view requires that an account of the good reconcile these points of view.

There are, of course, reasons to be worried about both of these ways of knowing basic goods — worries that go beyond general skeptical doubts about how we could know any normative truths at all. Derivationists have to explain how we come to know what counts as an actualization of a human potency, and have to explain how we connect these via bridge principles with human goods. Inclinationists have their own troubles. In particular, they need to deal with the fact that, even if they are not in the business of deriving goods from inclinations or identifying the goods precisely with what we tend to pursue, they take as their starting point human directedness. And it has been rightly noted that human directedness is not always a lovely thing. Power and prestige seem to be a matter of human directedness — at least as much so as, say, aesthetic enjoyment and speculative knowledge — but they do not make it to the natural law theorist’s catalog of goods. While these difficulties persist for inclinationist and derivationist accounts of knowledge of the basic goods, they may well be eased if one affirms both accounts: one might be able to use inclinationist knowledge to provide some basis for bridge principles between knowledge of human nature and knowledge of human goods, and one might be able to use derivationist knowledge to modify, in a non-ad-hoc way, the objectionable elements of the account that one might be bound to give if proceeding on an inclinationist basis alone.

The dialectic between inclinationist and derivationist accounts of knowledge of the first principles of the natural law is central to natural law epistemology, but there are other accounts of knowledge of the natural law that focus on its social dimension. Alasdair MacIntyre has argued, for example, that the first precepts of the natural law are to be understood as those that make possible communal inquiry into the nature of the good: both the positive and the negative precepts are enabling rules, norms that enable humans to engage in common pursuit of knowledge of what is valuable. The norms of the natural law preclude our acting toward other potential partners in inquiry in way that would undermine the possibility of common pursuit of the good. To come to know the primary precepts of the natural law, then, is a matter of coming to know what sorts of social relationships make possible common pursuit of common goods.

A distinct sort of social emphasis on knowledge of the natural law asks why we should think of knowledge of the natural law as arising exclusively or even predominantly either from one’s own immediate rational insight into what is implicit grasped or from some sort of derivation from the fact that one’s own inclinations of the will have certain determinate objects. One might hold that we have excellent reason to believe that knowledge of the natural law unfolds historically. Jean Porter, for example, argues that by close attention to the various sorts of social structure exhibited cross-culturally, we can extract the necessary “starting points” to begin assessing various proposed norms of action. And Jonathan Crowe emphasizes knowledge of the natural law as the outcome of the attempt to interpret human practices, and will be an historically-extended process that will be necessarily an unfinished task.

A developed natural law theory includes within it a catalog of the fundamental goods, the basic values upon which the principles of right are founded. Suppose that we follow at least the inclinationist line, taking it to be faithful to the natural law idea that knowledge of the basic goods is widely distributed. Our task then is to provide an explicit account of those goods implicit knowledge of which is manifested in human inclination toward certain ends. What are the goods affirmation of which makes intelligible these inclinations?

It is clear from this way of putting the question that even if natural law theorists are right that this implicit knowledge is widely distributed, it would be easy for natural law theorists to disagree in their catalogs of basic goods. For the task here is that of formulating propositionally, and in as illuminating a way as possible, what items need be affirmed as intrinsically good in order to make sense out of our inclinations. And there are, unsurprisingly, disagreements in catalogs of basic goods. The goods that Aquinas mentions in his account include life, procreation, social life, knowledge, and rational conduct. Grisez 1983 includes self-integration, practical reasonableness, authenticity, justice and friendship, religion, life and health, knowledge of truth, appreciation of beauty, and playful activities. Finnis 1980 includes life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion. Chappell 1995 includes friendship, aesthetic value, pleasure and the avoidance of pain, physical and mental health and harmony, reason, rationality, and reasonableness, truth and the knowledge of it, the natural world, people, fairness, and achievements. Finnis 1996 affirms a list much like Grisez 1983, but includes in it “the marital good”. Murphy 2001 includes life, knowledge, aesthetic experience, excellence in work and play, excellence in agency, inner peace, friendship and community, religion, and happiness. Gomez-Lobo 2002 includes life, the family, friendship, work and play, experience of beauty, theoretical knowledge, and integrity. Crowe (2019) includes life, health, pleasure, friendship, play, appreciation, understanding, meaning, and reasonableness.

Aside from the inevitable differences in lists of goods produced by natural law theorists, there are also more focused debates about the inclusion of particular alleged goods within the natural law theorists’ lists. Note, for example, that of the lists above, only Chappell’s includes pleasure and the absence of pain. Whatever else we say here, it seems that common sense is initially on Chappell’s side: what seems more obvious than that pleasure and the avoidance of pain are basic reasons for action? The reasons for rejecting pleasure and the absence of pain from the list of goods are various: some writers argue, following Aristotle, that pleasure is not a good in abstraction from the activity in which pleasure is taken; some that the absence of pain is not a completion or a fulfillment of human nature, and thus cannot be among the basic goods; some that the avoidance of pain is simply an instance of some other basic good, such as inner peace. What this debate illustrates is the extent to which the formulation of a catalog of goods is not a straightforward matter. Everyone agrees that one who avoids touching a hot stove in part to avoid the awful pain has some reason to avoid touching the stove. The difficulty is to bring together our various sources of knowledge about the good to formulate an account that explains well precisely why it is that such an act is reasonable. These sorts of debates reappear with respect to goods like life (is life intrinsically or instrumentally good? is merely being alive intrinsically good, or is life only intrinsically good when one is enjoying a certain level of vitality?), religion (is harmony with God really a human good? is it merely a kind of friendship? does its status as a good depend on whether there is a being such as God?), and what Finnis and Grisez now call the ‘marital good’ (is the good of marriage simply an amalgam of various other goods, as friendship, procreation, rational agency, or is it really a distinct, analytically separable value?). Thus Echeñique denies that life can be a basic good in the way that natural law theorists typically take it to be; Cuneo has rejected religion as a basic good; and Macedo has argued against the marital good.

Suppose that we were to have in hand satisfactory accounts of natural goodness and our knowledge of it, along with a rationally defensible account of the basic goods that are the fundamental reasons for action. All that we would have so far is the natural law theorist’s account of what we might call minimally rational action — action that seeks to realize some good. What we would not have yet is a full account of right action. For we are frequently in situations in which there are various different courses of action that we might pursue, each of which promises to realize some good; are there no guidelines to which we might appeal in order to show some of these choices superior to others? After all, some of even the most obviously morally wrong actions can be seen to promise some good — a robber might kill in order to get the money he needs to pursue genuine goods — and the natural law theorist wants to be able to say why these obviously morally wrong actions are morally wrong. As we have seen, the paradigmatic natural law view holds that there are some general rules of right that govern our pursuit of the various goods, and that these rules of right exclude those actions that are in some way defective responses to the various basic goods. How, though, are we to determine what counts as a defective response to the goods?

There are at least three possibilities. One might appeal to a master rule of right that can be used to generate further rules; call this the master rule approach. One might appeal to a methodological principle by which particular rules can be generated; call this the method approach. Or one might appeal to some standard for distinguishing correct and incorrect moral rules that is not understandable as a method; call this (for reasons we shall see shortly) the virtue approach.

On the master rule approach, the task of the natural law theorist is to identify some master rule which bears on the basic goods and, perhaps in conjunction with further factual premises, is able to produce a stock of general rules about what sorts of responses to the basic goods are or are not reasonable. While it is far from clear whether there was a single way that Aquinas proceeded in establishing moral norms from the primary precepts of the natural law in the Summa Theologiae, John Finnis has argued that Aquinas employed this master rule approach: on his view, Aquinas held that this master rule is the rule of universal love, that one should love one’s neighbor as oneself. This rule bids us to respond to the good lovingly wherever it can be realized, and from it we can see that certain ways of responding to the good are ruled out as essentially unloving. Grisez clearly employs this approach: he writes that the first principle of morality is that “In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment”. This first principle, Grisez says, contains implicitly within it various “modes of responsibility” from which particular moral rules can be derived.

The central difficulty with this employment of the master rule approach is that of explaining how we are to grasp this first principle of morality as correct. What is the relationship between our knowledge of the basic goods and our knowledge of the master rule? When Grisez defends his master rule, he writes that its status is due to a certain function that a first principle of morality must perform: “It must provide the basis for guiding choices toward overall human fulfillment. As a single principle, it will give unity and direction to a morally good life. At the same time, it must not exclude ways of living which might contribute to a complete human community”. But this presupposes an awful lot: why should we assume in advance that a proper response to the basic goods must be one that is oriented toward a “complete human community”?

On the method approach, by contrast, there is no need for a master principle that will serve as the basis for deriving some particular moral rules. The idea here is the natural law theorist needs not a master rule but a test for distinguishing correct moral rules from incorrect ones. We know from our earlier consideration of the paradigmatic natural law view that the test for distinguishing correct moral rules from incorrect ones must be something like the following: if a moral rule rules out certain choices as defective that are in fact defective, and rules out no choices as defective that are not in fact defective, then it is a correct moral rule. What would distinguish different employments of the method approach is their accounts of what features of a choice we appeal to in order to determine whether it is defective. The knowledge that we have to go on here is our knowledge of the basic goods. If a certain choice presupposes something false about the basic goods, then it responds defectively to them. So a moral rule can be justified by showing that it rules out only choices that presuppose something false about the basic goods.

This is very abstract. Here is an example of an employment of this approach. While Finnis now affirms Grisez’s master rule approach, in his 1980 work he defends various principles of practical reasonableness without adverting to a master rule. He argues, for example, that it is always wrong to intend the destruction of an instance of a basic good. (So, no lying, for lying is an intentional attack on knowledge; no murder, for murder is an intentional attack on life, and so forth.) Why is it always wrong to do so? It would be unreasonable simply to try to destroy an instance of a basic good, for no further purpose: for that would treat an instance of a basic good as something that it is not — that is, as valueless. And it would be wrong to destroy an instance of a basic good for the sake of bringing about some other instance of a basic good: for that would make sense only if the good brought about were more valuable than the good destroyed, but on Finnis’s view all distinct instances of basic goods are incommensurable — none is of more, less, or equal value with any other. So the rule forbidding intentional destruction of an instance of a basic good is justified because it rules out only choices that presuppose something false about the nature of the basic goods.

The method approach presupposes less of substance about morality than the master rule approach presupposes. But it requires us to draw upon an interesting and rich knowledge of the features of the basic goods. Whether this information is available is a matter for debate. But the method approach has the advantage of firmly rooting natural law arguments for moral principles in the goods the pursuit of which those moral principles are supposed to regulate.

Neither the master rule nor the method approach implies that the natural law theorist must hold that all right action can be captured in general rules. The natural law view is only that there are some such rules. It is consistent with the natural law position that there are a number of choice situations in which there is a right answer, yet in which that right answer is not dictated by any natural law rule or set of rules, but rather is grasped only by a virtuous, practically wise person. It is, however, open to the natural law theorist to use this appeal to the judgment of the practically wise person more widely, holding that the general rules concerning the appropriate response to the goods cannot be properly determined by any master rule or philosophical method, but can be determined only by appeal to the insight of the person of practical wisdom. If it really is wrong in all cases to tell lies, as Aquinas and Grisez and Finnis have argued, our grasp of this moral truth is dependent on our possessing, or our being able to recognize the possessor of, practical wisdom. If such a person never tells lies, because she or he just sees that to tell lies would be to respond defectively to the good, then that lying is always wrong is a rule of the natural law.

It may be true that by the virtue approach we can learn of some general rules of the natural law. What is more interesting is whether a defender of the virtue approach would be right to dismiss the claims of the master rule or method approaches. And it does not seem that the defender of the master rule or method approach should be particularly concerned to discredit the virtue approach. For if defenders of the master rule or method approach recognize the existence of a capacity of judgment like practical wisdom, then it would be strange to allow that it can be correctly exercised on a number of particular occasions while denying that we might learn of general rules from observing patterns of its exercise on various occasions.

One challenge to these various natural law attempts to explain the right in terms of the good denies that the natural law theorist can provide adequate explanations of the range of norms of right conduct for which moral theories ought to be able to provide explanations. That is, one might allow for the sake of argument the natural law theorist’s identification of some range of human goods, while denying that he or she can identify, and justify in natural law terms, adequately concrete modes of appropriate response to those goods. This challenge cannot be profitably addressed here; what would be required would be a close examination of the merits of particular natural law explanations of particular moral norms (a task taken up in, for example, Grisez 1993). One might also look to recent attempts to apply the natural law view to pressing contemporary moral problems — those of research ethics, economic justice, environmental ethics, business ethics, the ethics of suicide and euthanasia, and population ethics, for example — as tests of the fruitfulness of that position.

A more radical critique of the paradigmatic natural law account of the connection between the good and the right calls into question the very idea that one can get principles of moral rightness merely from what constitutes a defective response to the good. According to this critique, while it is true that one might be able to come up with some notion of unreasonableness by appeal to the notion of what is defective response to the human goods, the notion of moral rightness belongs to a family of concepts distinct from that to which the notion of reasonableness belongs. On this view, moral rightness belongs to the obligation family, and the concept of obligation is irreducibly social: one is under an obligation only if one is subject to some sort of demand in the context of a social relationship. It is part of the logic of obligation that when one is under an obligation, that condition has resulted from a demand imposed on him or her by some other party. So, according to this line of criticism, the paradigmatic natural law view is unable to show that the natural law is intrinsically morally authoritative: the precepts of the natural law can be rules that all of us human beings are obligated to obey, that it would be wrong for us to disobey, and that we would be guilty for flouting only if these precepts are imposed upon us by an authoritative being — perhaps a being like God.

The intrinsic moral authority of the natural law has been a matter of debate since Aquinas: it was a central issue dividing Aquinas’s view from those of Scotus, Ockham, and Suarez. It continues to be an issue between natural law theorists like Grisez (1983) and Finnis (1980) on one hand and theological voluntarists like Adams (1999) and Hare (2001) on the other. Natural law theorists have several options: they can argue against any meaningful distinction between morality and the reasonable more generally; or they can embrace the distinction, but hold that on the clearest conception of the moral that we possess, the natural law account of reasonableness in action adequately satisfies that conception; or they can hold that the notion of ‘morally right’ is so muddled that it should be jettisoned, leaving in its stead the notion of the reasonable. It is at present far from clear which of these avenues of response the natural law theorist has most reason to embrace.

Natural law is a theory in ethics and philosophy that says that human beings possess intrinsic values that govern their reasoning and behavior. Natural law maintains that these rules of right and wrong are inherent in people and are not created by society or court judges.

• The theory of natural law says that humans possess an intrinsic sense of right and wrong that governs our reasoning and behavior.
• The concepts of natural law are ancient, stemming from the times of Plato and Aristotle.
• Natural law is constant throughout time and across the globe because it is based on human nature, not on culture or customs.
• This is opposed to theories that laws are socially constructed and created by people.
• Examples of natural laws exist in several fields from philosophy to economics.

Natural law holds that there are universal moral standards that are inherent in humankind throughout all time, and these standards should form the basis of a just society.

Human beings are not taught natural law per se, but rather we “discover” it by consistently making choices for good instead of evil. Some schools of thought believe that natural law is passed to humans via a divine presence.

Although natural law mainly applies to the realm of ethics and philosophy, it is also used extensively in theoretical economics.

The theory of natural law believes that our civil laws should be based on morality, ethics, and what is inherently correct. This is in contrast to what is called ‘positive law’ or ‘man-made law,’ which is defined by statute and common law and may or may not reflect the natural law.

Examples of positive law include rules such as the speed that individuals are allowed to drive on the highway and the age that individuals can legally purchase alcohol. Ideally, when drafting positive laws, governing bodies would base them on their sense of natural law.

‘Natural laws’ are inherent in us as human beings. ‘Positive laws’ are created by us in the context of society.

Examples of natural law abound, but philosophers and theologians throughout history have differed in their interpretations of this doctrine. Theoretically, the precepts of natural law should be constant throughout time and across the globe because natural law is based on human nature, not on culture or customs.

When a child tearfully exclaims, “It’s not fair [that]…’ or when viewing a documentary about the suffering of war, we feel pain because we’re reminded of the horrors of human evil. And in doing this, we are also providing evidence for the existence of natural law. A well-accepted example of natural law in our society is that it is wrong for one person to kill another person.

In the U.S. constitution, the right of citizens to life, liberty, and the pursuit of happiness is a motto based on natural law. In the penal code, certain crimes are almost universally accepted as punishable, including murder and rape.

Natural law affects businesses from an ethics standpoint, whereby they a firm should not defraud its customers or other stakeholders. For instance, the marketing of drugs should be made with full disclosure of potential harms and not be sold as ‘snake oil.’

Since natural law assumes universalizing rules, it does not account for the fact that different people or different cultures may view the world differently. For instance, if people interpret differently what it means for something to be fair or just, the results will differ.

DLW was acquitted of the bestiality charge on the basis that no penetration occurred. In this report, I will examine the D.L.W case from the theoretical perspective of Natural Law Theory. During my analysis, I will focus on the original D.L.W decision and how it missed factors of Natural Law Theory, such as human rights, animal cruelty, and penetration. By focusing on these aspects, I argue that if Natural Law Theory had been applied in the Supreme Court then the judges would have sided with the charges against D.L.W. Natural Law was written by a Christian philosopher St. Thomas Aquinas. Aquinas believes that “Natural law thinking is a quest for absolute values, justice, and truth” (Devlin, 171). In other words, if you were to do something against God’s wishes (against the law), God would punish you.

The objective of Natural Law Theory is to protect humans and their fundamental rights. As Calavita states, “since the law is ideally the tangible expression of morality arrived at through reason, the whole ensemble is God-given, universal, and natural” (Calavita, 13). Rather than dismissing the appeal, the Natural Law Theorists would accept the appeal and would agree that what D.L.W did was immorally wrong in the eyes of God. The core of Natural Law is to claim that since the existence of human beings is natural, they must behave in a way that upholds that rational nature. In the D.L.W case, D.L.W had committed offenses regarding unnatural actions, and since he violated the rights of other human beings, he should have been charged.

This idea of “natural” pertains to the teleological ideas (I.e. body parts have purposeful functions) that leads to severe consequences when considering the case. Based on the sexuality of humans and of animals, Aquinas adds that what is natural in human nature is that sex is only to engage in heterosexual relationships (Juric, Lecture 5). Sexual intercourse with any animal (bestiality) or performance of sexual activity with the use of an animal is unnatural and immoral for that reason. Especially, if they are considered intentional, they deliberately disrupt the natural order of the creation of the world by God, in which God commanded to be respected. The majority found the term bestiality to be unclear; therefore, they did not want to interpret the term, and they did not want to expand liability because it was not written in the law. Moreover, it was only “natural” to have sex with the means of procreation. Even though facts like bestiality committed by any person or animal was a criminal offense, the judges let D.L.W off his charges along with the charge of bestiality. In the D.L.W case maintaining that in the Code, the term bestiality refers to sexual penetration between a person and an animal (D.L.W, 3).

The main issue identified in the D.L.W case was whether penetration was an essential element of the offense of bestiality. Although, Aquinas in-explicitly says that, in Natural Law Theory sexual penetration is done with means of sex being consensual (Devlin, 171). Penetration was an essential element in determining bestiality, the majority’s decision was very inaccurate in terms of its own account of theories of statutory explanation, but more importantly, on levels of morality. The Supreme Court felt that bestiality as a definition must include penetration. As Abella pointed out, Parliament must have assumed, that penetration was not a requirement (D.L.W, 13). By not assuming these facts the judges felt obligated to let D.L.W free.

By taking into consideration the D.L.W. case from the perspective of the Natural Law Theory, I argued that the original D.L.W. decision missed several key facts that could have changed the outcome, using the main factors such as, human rights violations, animal abuse, and reasons why penetration was considered important. If there was a judge that applied Natural Law in the case, it would have taken a different route instead of acquitting D.L.W. of bestiality. Perhaps, it would have taken into fact that human rights played a role in the case, that an animal had been abused, and that penetration was a necessary factor.

If you have ever watched animals in nature, you may have noticed that they tend to behave a little selfishly. That is, they act on their urges without much regard to other creatures. People, on the other hand, are a little different; we care about how our actions influence others. However, we still are a part of the animal kingdom, and thus continue to struggle with animal urges. Fortunately, we have evolved a sense of right and wrong or a sense of morality. This sense has led us to believe in certain values, which in turn have helped us make what we arguably consider ethical decisions. In practice, the matter is not as simple. Being who we are, we have tended to drastically disagree on this sense of right and wrong, and so different ethical theories have tried to propose what right and wrong are, one of which is the natural law theory. According to this theory, every part of the world has a purpose to fulfill, and so, good actions are those that do exactly that; fulfill their purpose. In this paper, I will attempt to prove that the natural law theory is flawed by first explaining its basic tenets, followed by laying out a few of my objections, and finally coming up with a new theory that tries to explain what morality is.

The proponents of the natural law theory look at nature to decide what is right and wrong. They view the world in terms of a teleological worldview; all parts of nature act for the sake of something, and we are at the heart of that something. To provide an example, rain exists for the sake of plants, plants exist for the sake of animals, and animals exist for the sake of us. From there, advocates of the theory take this natural law, and use it to explain our four natural inclinations; to reproduce, to survive, to be social, and to be rational. It seems easy to speak on the behalf of rain, plants, and animals, but what about us? What is our purpose? According the theory, our purpose is to do whatever is compatible with rationality. In other words, the theory uses the two premises: one, natural is good, and two, humans are naturally rational creatures, to reach the following conclusion: humans ought to be rational. Simply put, a good action is one that brings you closer to fulfilling your purpose, and a bad action is one that diverts you away from that purpose.

To begin with my objections, I would like to take the second premise and decipher it. To me, claiming that “humans are naturally rational creatures” is more so grounded in idealism than in a real-world phenomenon. When we look at everything going on in the world from raging nuclear wars, to unprecedented rates of poverty, I think it’s safe to say that humans and rationality do not really go hand in hand. Just put on a Lebanese news channel right now, and there goes your evidence. Lebanon at the present, is living -although I could just as easily argue deceased- proof that calling humans “naturally rational” is a bit of a stretch. The theory makes a point out of stripping everything that makes us who we are down to rationality. It could have just as easily said that humans are naturally emotional creatures, or even that humans are naturally ignorant creatures. Self-interest, love, emotion, motivation, hate, rage, ignorance, and instinct are just a few of the things that one could just as easily argue come natural to us as well. This is not to say that we are not rational, because obviously we are, or else we’d still be carving figures on rock walls. But that doesn’t mean that we are “naturally” rational or that rationality is the very essence of who we are. The theory sort of picks and chooses what best serves its intentions. That is, saying humans ought to be rational has a better ring to it than saying humans ought to be emotional, don’t you think? I’m pretty sure any of us can recall an instance of choosing to act on our instincts rather than on our rationality, or letting our emotions get in the way of a rational decision. Victims of domestic violence, for example, take a lot of time to come forward with their stories, that is if they ever really do. Why? Simply because they are blinded by their emotions. They keep holding on to that last string of hope, wishing their significant other might change overnight. This is clearly not following our rationality. How about the times you find yourself following your gut rather than the clear evidence visibly presented to you? We ignore all the signs in favor of our intuition. Many black people, for instance, have been wrongfully accused of crimes by investigators or police officers who would rather be guided by a tingling down their spine than on actual facts or evidence, when all that tingling really is, is racial profiling. History itself is witness to our ongoing acts of ignorance as well, from the trial of Galileo who was killed for believing that the earth was not the center of the universe to the intense massacres of Adolf Hitler. These examples and many more, make it clear that we are not “naturally rational” creatures. Instead, we are naturally rational, emotional, ignorant, loving, selfish, and so on. And all of these characteristics sort of complement and tease out each other to give us who we are, so choosing rationality over everything else is a fault the natural law theory should be held accountable for.

A second objection to the natural law theory can be deduced simply by questioning its results. According to the theory, the natural world is the reference to our actions, and so we are all in the same position as we can all look at nature to decide whether an action is right or wrong. Based on what I’ve just said, the theory makes it seem that this is supposed to be something so intuitively obvious that even rain, plants, and nonhuman animals can manage it. Naturally, I have to ask that if this is the case, why is the world so full of people killing for example? In other words, if it’s as easy as the theory makes it out to be, why are we not following these natural laws? The answer cannot be that we’re not acting rationally because according to advocates of the theory we are naturally rational creatures, so there is definitely an inconsistency here. The theory fails to account for the fact that these natural laws do not present themselves to us. Instead, we tease them out of nature, and so two people can look at the very same natural world and come up with very different natural laws. Let’s say you look at nature and observe that animals have very strong survival instincts and thus conclude that survival instincts are good. Similarly, I too look at nature and observe that animals have very strong survival instincts, but this time I conclude that these instincts are bad as they prevent animals from forming societies, and we, as humans, cannot prosper in this sort of lifestyle. Who has the upper hand here? Is it me or you? I think it’s quite clear that people tend to interpret nature very differently because human behavior is as much shaped by the environment as is the environment shaped by human behavior. In other words, it just doesn’t make sense that we can deduce laws of conduct for human behavior in the same way we can deduce laws of conduct for animals such as whales and dogs… so the theory does not adequately stand.

My final objection is rather a simple one; there comes a time when there isn’t really an obvious “natural” or good thing to do. The most representative example of this notion is a pregnant woman who during her pregnancy finds out she has uterine cancer. If she goes through with the pregnancy she will definitely die and if she puts her life first, she would have to remove her uterus and terminate the life of the growing fetus. Therefore, she is faced with a crossroad, and the natural law theory fails to provide guidance to the right choice simply because it is utterly incapable of doing so. If you go back to the theory’s natural inclinations, you would find that both survival and reproduction are amongst them. So, one might ask, which is more important survival or reproduction? Should we even think about it that way? That is, should we view these natural inclinations in terms of proportionality in the first place? If yes, why? And if not, in which light should we view them? The theory makes a point out of keeping these matters vague, which I find very faulty.

In this essay I will be discussing why and to what extent I agree with the position of the Natural Law Theory (NLT) that there are rationally identifiable moral principles which are embedded in the very fabric of human nature and which can and should universally be utilised to guide and evaluate the correctness of human conduct as well as the institutions of human society such as the legal system, its processes and its rules in contrast to the Legal Positivist Theory of law.

NLT is intrinsically linked with morality – in particular, the theory states that fundamental moral principles are built into the design of human nature and lie at the roots of consciousness. The distinctive mark of natural law we can know about this by reasoning alone, rather than by the authority of revelation. However, the most influential natural law thinkers have been Christians like St. Thomas Aquinas who stated that reason and revelation work together. Since natural law is part of the nature of things the knowledge of it is accessible to all men through reason apart from any supernatural revelation. God may be the source of natural law, but he has inscribed his moral law in nature and in man hence, there is no need for any further revelation outside of nature itself for the knowledge of the moral law. [footnoteRef:1] [1: http://darashpress.com/articles/natural-law-summary-and-critique#fnlink_4]

In this sense, natural law does not distinguish between law and morality. Finch states: NLT supposes that there is a ‘law’ (or set of principles) of nature according to the tenets and principles of which all things, including man himself, ought to behave.” For example, its natural for us to want to procreate (the “is” section), thus it should be encouraged in a society by law (the “ought” section).

Although NLT is not one set theory, thinkers from historic and contemporary backgrounds have appeared to agree on a number of themes consistent within their teachings. These are there are unchanging principles of law that exist in “nature” that define for man what is right, just, and good, and which ought to govern his action. Secondly, these principles of law are accessible to all men and are discovered by the right use of reason. Furthermore, these principles of law apply to all men at all times and in all circumstances. Lastly, man-made laws are just and authoritative only insofar as they are derivable from the principles of law in nature.[footnoteRef:2] [2: http://darashpress.com/articles/natural-law-summary-and-critique#fnlink_8]

There were essential contributions of the individual Natural Law Thinkers to the themes from both historical and contemporary times and I will evaluating the effect the main thinkers effect has on the overall main themes.

The earliest contributions from thinkers of the NLT come from the ancient Greeks. Plato (c 429-347 BC) and Aristotle had taken a Rationalist approach, arguing that there were absolute principles of morality provided by Nature, which could be discovered through the application of reason, and that once found, these principles should become the basis for the organisation of society, including its laws and legal and political institutions. For Plato the perfect society was characterised by Order, whereas for Aristotle the perfect society was built on virtue, and the virtuous existence of its citizens. A society lacking order or virtue in its social practices and institutions was therefore not a perfect society and fell short of the ideal. Legal, political and social practices which did not promote Order or Virtue were therefore morally unacceptable and unjust. [footnoteRef:3] [3: Chinhengo, Introduction to Jurisprudence, pp. 17-26]

In Nicomanchean Ethics, Aristotle argued that law supports a virtuous existence, advances the lives of individuals and promotes the ‘perfect community’. He proposed people should employ practical wisdom or active and that law supports a virtuous existence, advances the lives of individuals and promotes the ‘perfect community’.

Aristotle divided ‘political’ justice into ‘natural’ and ‘conventional’ justice. According to Aristotle, the content of ‘natural’ justice (or ‘universal’ law) is set by nature, which renders it immutable and valid in all communities. In contrast, ‘conventional’ justice comprises rules devised by individual communities to serve their needs. Aristotle argued ‘conventional’ justice is subject to change (depending on the form of government) and is therefore subordinate to ‘natural’ justice. [footnoteRef:4] [4: ARISTOTLE’S INFLUENCE ON THE NATURAL LAW THEORY OF ST THOMAS AQUINAS SIMONA VIERU The Western Australian Jurist Vol. 1, 2010]

We cannot talk about the history of the classical law theory without touching upon St. Thomas Aquinas’ development of the theory from the 13th century. He attempted to reconcile the relationship between the theory and Christian teachings. He was drawn to Aristotle’s philosophy because it accepted the reality of the material world, and Aquinas deemed it useful in attempting to validate the Christian doctrine. framework of a metaphysics of creation and divine providence. His theory sets the terms of debate for subsequent natural law theorizing.

St. Thomas Aquinas believed that the Rationalist and Religious approaches to society and law were not mutually exclusive, that they were indeed, part of the same universal scheme. We don’t need the bible, or religion class, or church in order to understand the natural law. Instead our instinct shows us the basic goods, and reason allows us to derive the natural law from them. Right acts are then in accordance with the natural law and as a result in accordance with Gods higher plan.

For St. Thomas Aquinas, the ultimate goal of all social, political and legal structures and all laws must be to promote and establish the Common Good. The perfect society was characterised by just laws which promoted and protected the Common Good. Any laws which did not seek to achieve this were unjust and a “corruption of law” as it Ought to Be and would lose their power to bind morally. Aquinas quoted St. Augustine, who had declared that: Lex Injusta Non Est Lex (An unjust law is not law) and made the point that if a ruler enacts unjust laws, “their subjects are not obliged to obey them”. However, he seems to have stopped short of actually encouraging citizens directly to disobey unjust laws, acknowledging that it may be necessary to obey such laws “in certain special cases when it is a matter of avoiding ‘scandal’ (i.e. a corrupting example to others) or civil disorder.

Aquinas outlined his theory of Natural Law in the Summa Theologiae, Aquinas elaborated on the concept of Human Law by reference to his understanding of Eternal Law, Natural Law and Divine Law. For Aquinas, Eternal Law was the divine and rational model according to which God created the world; this model provided the foundation for Aquinas’ three other types of law. The Divine Law is derived from God and guides man to perform through Scriptures, which reveal elements of the Eternal Law to man. For Aquinas, the purpose of law was to promote the ‘common good’, which leads to the ‘perfect community’. On the other hand, Natural Law is the process whereby man, as a rational being, participates in the Eternal Law. Aquinas argued that Natural Law is called ‘law’ only because of man’s participation. Whilst irrational beings are subject to the Eternal Law, they cannot participate in a rational manner. Created beings without intellect or will (whether animate or inanimate) are willed into being and directed toward their own perfection in the context of the perfection of the whole. God, he states, “instructs us by means of His Law”. Human Law emerges when a public person entrusted with ‘care of the community’ exercises human reason in order interpret the Eternal Law and create laws. A Human Law creates a moral obligation if it has been promulgated to men by the law-maker, and if it is just or consistent with ‘divine’ reason (ie promotes the common good, does not exceed law-maker’s authority and does not impose a disproportionate burden on individuals). [footnoteRef:5] [5: ARISTOTLE’S INFLUENCE ON THE NATURAL LAW THEORY OF ST THOMAS AQUINAS SIMONA VIERU The Western Australian Jurist Vol. 1, 2010]

NLT had started to lose popularity over the ever more popular theory of Legal Positivism. However, Professor John Finnis is a contemporary defender of natural law and a supporter of its resurgence in the last century. Finnis does not assume a God. Instead of referring to the ‘form’ of good or seeking good, as was proposed by historical jurists he speaks of man’s desire to pursue basic ‘goods’ in life. Finnis focuses on goods rather than a single good; a theory of how to live well.

In his main works, The ‘Basic Goods’ of Life, Finnis states based on the supposition that mankind sets out to obtain things they perceive to be good for themselves. In doing so, man must exercise practical reason to obtain that good at any one time.

NLT is not without its faults. One main criticism is that it bases its assumptions from a priori reasoning which is unscientific/subjective: Critics, especially Legal Positivists, criticise the Natural Law thinkers for basing their arguments for the close connection between law and morality on a priori reasoning, which in the Positivist view, is unscientific and subjective. They argue that the truth or falsity such propositions cannot be empirically verified, i.e. the conclusions of Natural Law are incapable of scientific proof.

Another problem of the positivist approach with regard to the nature of law is that it deals with the empirical sphere of reality (that is) rather than the transcendental sphere of the ideal (the ought). Legal positivists do not believe in natural law in the legal ordering of society because natural law is not common to everybody. There are conflicting precepts of natural law making it difficult to establish which is right and which is wrong. It is better if the concept of law is free from metaphysical speculation.

In the Legal Positivists point of view, the body of legal rules should exist without conscious regard for the norms of morality, although the latter’s influence are not completely denied. There are legal rules that do not measure up to moral law but do not cease to be legal rules.

Legal Positivism is a reaction against the metaphysics of natural law in favour of a scientific and empirical approach.

The three main characteristics of positivism are: The study of law as it IS and not as it Ought to be (meaning there is no necessary connection between law and morality). Secondly, it attempts to distinguish law from other rules such as social rules and morality. Lastly, the analysis of legal concepts.

Legal Positive approach as opposed to a Naturalist approach is that it recognises the model of command and compliance within the society, commands by the sovereign and compliance by the masses without the sovereign first having to secure the legitimate moral authority from the people. It does not make any difference if the sovereign makes good laws or bad laws the subject of the laws will generally comply because of the threat of sanctions in the form of punishment. [footnoteRef:6] [6: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 11 December 2018]

English philosopher Jeremy Bentham (1748-1832). Bentham is regarded as the founding father of Legal Positivism who stated exclusive positivism or also called as the hard positivism, in which it denies that a legal system can incorporate moral constraints on legality. and believed that there is no connection with morality and ethics and the formation of a legal theories, instead they argue that laws and the judicial system are made by man for man as a result of developing customs and convention into a quantifiable legal code. He set out to show legal systems are social constructs. [footnoteRef:7] [7: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 11 December 2018]

Austin defined law by saying that it is the “command of the sovereign” so his form of Legal Posivitism is described as the “command theory of law”. This simply means that any violation of the command issued by the supreme political superior or the sovereign is an infraction thereof and subject to sanction.

The positivists do not say that the law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. However, the merits of law do not determine whether a law or a legal system indeed exists. The existence of a legal system in a society can be inferred from the different structures of governance present, and not on the extent to which it satisfies ideals of justice, democracy, or rule of law.

The modern/contemporary form of Positivism inclusive positivism or also known as incorporationism or soft positivism, it is possible for a society’s rule of recognition to incorporate moral constraints on the content of law. The Separation Thesis, according to Hart is the essence of legal positivism. The main point or essence of this thesis is that, the law and morality are conceptually distinct. [footnoteRef:8] [8: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 9 December 2018]

In response to John Austin, Hart developed a theory of a legal system as consisting of primary and secondary rules. Primary rules are the existing set of operative legal obligations imposing rights and duties on subjects. Secondary rules are rules regulating how primary rules are made and changed, including a rule of recognition, rules of changes, and rules of adjudication.

Kelsen propounded the idea of a Pure Theory of Law, which is a theory of Positive Law. It is a general theory of law, not an interpretation of specific national or international legal norms; but it offers a theory of interpretation. It is characterized as a “pure” theory of law because it aims to focus on law alone. [footnoteRef:9] [9: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 11 December 2018]

The most influential criticisms of legal positivism all flow from the suspicion that it fails to give morality its due. The law has important functions in creating harmony and peace in our lives, advancing the common good, in securing human rights, or to govern with integrity and yet it has no relevance with our morals.

Fuller denies the separation of law and morality. He believes that whatever virtues inherent in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality.

His other criticism is that if law is a matter of fact then we are without an explanation of the duty to obey. If an amoral law is made, there is still an obligation to obey.[footnoteRef:10] [10: All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 13 December 2018]

Today one could still argue that the current foundation for British morality continues to be the right-minded man approach as championed by Lord Devlin, not much appears to have changed this argument could be supported by the case of R v Brown (1993). [footnoteRef:11]The Lords rejected the defence of consent on the grounds of public policy and this decision was reaffirmed in Laskey v United Kingdom (1997) [footnoteRef:12] [11: R v Brown (1993) 2 All ER 75] [12: Laskey v United Kingdom (1997) 24 EHRR 39 (ECtHR) ]

The convictions were also upheld on appeal to the ECHR on the grounds that despite the prosecution being an interference of the personal freedoms of the individual, it was justifiable on the ground’s public protection. Like the homosexual trials of the 1950’s all the participants were consenting, no one participating had made a complaint to the police, yet despite this they were all successfully prosecuted all the way to the ECHR based on protecting public morality.

Other people could argue that society’s attitude has changed tremendously, and this change has been reflected by judgement in the courts. In R. v Wilson (1996) 1[footnoteRef:13] it was decided that a deliberate act of branding between heterosexuals causing severe pain and permanent scaring was a non-criminal act because of the consent of the victim, this was reaffirmed in R. v Slingsby (1995)[footnoteRef:14] [13: R. v Wilson (1996) 2 Cr App Rep 241] [14: R. v Slingsby (1995) Crim LR 570 (CA) ]

Homosexual culture was once deemed an immoral, now societies view has U-turned. Endorsement by institutions like the Anglican Church, parliament, BBC have made it acceptable. [footnoteRef:15] [15: C:UserstlewiDownloadsBBC ON THIS DAY 4 1957 Homosexuality ‘should not be a crime’_stm.mht]

In conclusion, I only partly agree with the statement “True law is right reason in agreement with nature” because I believe Legal Positivism will be required as long as there are theories or views or defences of law that insist that law comports with morality, whether inherently or contingently. This is because of the unscientific approach to Natural Law Theory has led me to take a more Hart type approach.

Natural lawyers are correct that this core idea underlying legal positivism is exceedingly thin. But in this dangerous world, given the fearsome power that law often wields, this thin idea is no less an essential one. Until recently no group of theorists has been more committed to making this point than legal positivists.[footnoteRef:16] [16: The Contemporary Relevance of Legal Positivism BRIAN Z TAMANAHA 37]

Bibliography

Articles, Books & Websites

1. The Contemporary Relevance of Legal Positivism BRIAN Z TAMANAHA 37 http://darashpress.com/articles/natural-law-summary-and-critique#fnlink_8
2. Chinhengo, Introduction to Jurisprudence, pp. 17-26
3. ARISTOTLE’S INFLUENCE ON THE NATURAL LAW THEORY OF ST THOMAS AQUINAS SIMONA VIERU The Western Australian Jurist Vol. 1, 2010
4. All Answers ltd, ‘Legal Positivism | LawTeacher’ (Lawteacher.net, December 2018) accessed 13 December 2018
5. The Contemporary Relevance of Legal Positivism BRIAN Z TAMANAHA 37
6. C:UserstlewiDownloadsBBC ON THIS DAY 4 1957 Homosexuality ‘should not be a crime’_stm.mht

Case Law

1. R v Brown (1993) 2 All ER 75
2. Laskey v United Kingdom (1997) 24 EHRR 39 (ECtHR)
3. R. v Wilson (1996) 2 Cr App Rep 241
4. R. v Slingsby (1995) Crim LR 570 (CA)

Purpose

Meta-ethics regards a specific group of claims, which ethicists recognize as moral claims. In the process of grappling with the question of what exactly moral claims purport to report, ethicists have developed two general approaches. This research proposal is concerned with only one of the two approaches, moral realism, which encompasses the assertions that: 1) moral claims purport to report facts, 2) moral claims may be true or false, and 3) some moral claims are true.

The epistemological and ontological conditions that are identified and encompassed by moral realism are generally thought to generate two morally realist meta-ethical sub-approaches: absolutism and relativism. Absolutism offers that the conditions which make moral facts either true or false are absolute; they are thought to apply, in identical extension, to everyone everywhere always in exactly the same way. Relativism offers that the conditions which make moral facts either true or false are relative to specific locations, cultures, traditions, individuals, etc; they are thought to apply differently for different people depending on the circumstances of their respective situations.

Meta-ethical assertions generate implications for normative ethical theory. Moral realism is typically credited with engendering two branches of normative ethical theory: deontic theories and aretaic theories. Deontic theories guide and assess our choice of what we ought to do and aretaic theories guide and assess what kind of person we are and should be. Encompassed within deontic theory is both teleological theory and deontological theory. Teleological theory offers that we should assess our choices on the basis of the consequences that they generate. Deontological theory on the other hand offers that we should assess our choices against criteria different from the states of affairs those choices bring about. A typical expression of deontological ethics is to proclaim that some choices are always bad in-and-of themselves independently of the events they happen to bring about.

The purpose of this proposed research will be to conduct a thorough analysis of the relationship between absolute meta-ethical realism and deontological normative theory in an attempt to evaluate arguments for and against believing that this relationship is necessary or reasonable.

Problem

Hume (1739) held that no set of claims about plain matters of fact (‘is’ claims) can entail evaluative claims (‘ought’ claims).[footnoteRef:2] If Hume is right, every valid argument for an evaluative conclusion either includes or presupposes some evaluative premise. And, as a result, there is no value neutral argument for an evaluative conclusion. But if we need to rely on evaluative premises or principles in order to infer substantive moral conclusions from non-moral premises, the question immediately arises, “How might we justify evaluative premises or principles?” [2: Hume, David, 1739. The Treatise Concerning Human Nature, Edited by L.A. Selby-Bigge. Oxford: Oxford University Press. (Edited by L.A. Selby-Bigge, 1888.) Book III, Part I, Section I, p. 469.]

Hume’s Law, or the fact-value gap as it is sometimes called, directly criticizes the tenability of a possible causal relationship between absolute meta-ethical realism and deontological normative theory. To investigate the reasonableness of such a relationship, I will evaluate whether theories that suppose a connection are defensible. To this end, I will identify and investigate grounds upon which one might successfully propose and defend a deontological normative theory on a basis of absolute meta-ethical realism. I will encounter such questions as: “what counts as good grounds for accepting either absolute meta-ethical realism or deontological normative theory?” and “What sort of evidence might be relevant in this reasoning?”

These questions address, in part, the grounding problem of meta-ethics. The grounding problem, as it applies to meta-ethics in general, is far too wide in scope to be adequately deal with over the course of four years of study. My intention is to limit the scope of this problem to its implications only for absolute meta-ethical realism and address it at this point. This proposed research will investigate the grounding problem of meta-ethics only in as far as it relates to absolute meta-ethical realism and by extension deontological normative theory.

Method

The purpose of this proposed research will be to conduct a thorough analysis of the relationship between absolute meta-ethical realism and deontological normative theory in an attempt to evaluate arguments for and against thinking that this relationship is necessary or reasonable. My research will evaluate a limited number of select deontological theories that propose a connection between absolute meta-ethical realism and deontological normative theory. In order to conduct my analysis, I will subject these theories to specifically tailored criticisms that challenge their connection between absolute meta-ethical realism and deontological normative theory. In addition to these specifically tailored criticisms, I will conduct an analysis to evaluate the extent to which each theory stands up against Hume’s Law directly.

I have preliminarily elected to conduct this proposed research using text analysis. I offer that employing this method is appropriate because it is designed specifically for analyzing ideas in the form of text.[footnoteRef:3] The text analysis method has two specializations: systematizing content and critically reviewing content.[footnoteRef:4] For the first part of the analysis, I intend to develop clear ideal-types capable of distinguishing meta-ethical realism from meta-ethical anti-realism, absolute meta-ethical realism from relative meta-ethical realism, deontic normative theories from aretaic normative theories, and deontological normative theory from teleological normative theory. Each ideal-type will include the benchmark criticisms typically raised against that specific approach. Having developed these ideal-types, I will produce a systematizing text analysis upon a select number of deontological theories using my ideal-types as a categorical framework.[footnoteRef:5] For the second part of the analysis, I intend to conduct a critically reviewing text analysis upon my already systematized benchmark texts. To execute my critical reviews, I will be relying on the method of idea-critique. Idea-critique is a critical method of analysis that aims to take a position regarding the extent to which a given argument lives up to predetermined norms.[footnoteRef:6] In this case, the given arguments are those presented by each deontological theory, and the predetermined norms are the standard criticisms raised against each deontological theory and Hume’s Law. [3: Esaiasson, P., Gilljam, M., Oscarsson, H., Wängnerud, L. (2012). Metodpraktikan, 1st ed. Stockholm: Norstedts juridik. p. 210] [4: Ibid.] [5: Bergström, G., Boréus, K. (2012). Textens mening och makt, 1st ed. Lund: Studentlitteratur.; Esaiasson, P., Gilljam, M., Oscarsson, H., Wängnerud, L. (2012). Metodpraktikan. p. 211] [6: Esaiasson, P., Gilljam, M., Oscarsson, H., Wängnerud, L. (2012). Metodpraktikan. p. 212]

This method is intended to evaluate the resilience of a causal relationship between absolute meta-ethical realism and deontological normative theory.

Theoretical Framework

I have preliminarily selected a series of three deontological normative theories, which I intend to focus my proposed research on. The first is Kantianism, followed by Inclinationist Natural Law Theory, and lastly Analytic Naturalism.

Kantianism argues that the supreme principle of morality is a standard of rationality dubbed the “Categorical Imperative” (CI).[footnoteRef:7] The CI is categorized as an objective, rationally necessary, and unconditional principle that we must always follow despite any natural desires or inclinations we may have to the contrary. Within this theory, all specific moral requirements are justified by this principle, which means that all immoral actions are irrational because they violate the CI. [7: Kant, I. (1991). Perpetual Peace. Cambridge: Cambridge University Press.; Kant, I. (1996). Groundwork of the Metaphysics of Morals. Cambridge: Cambridge University Press.; Kant, I. (1999). Critique of Pure Reason (The Cambridge Edition of the Works of Immanuel Kant). Cambridge University Press.]

Inclinationist Natural Law Theory

Natural Law Theory offers that there exists a rational plan by which all creation is ordered, and that natural law is the way that human beings “participate” in the rational plan. Human beings become aware of the order of this natural plan by detecting the good in the world and pursuing it. It is essential, therefore, to the natural law position that there be some things that are universally and naturally good.[footnoteRef:8] One account of fundamental goods has been labeled ‘inclinationism.’ On this view, one’s explicit grasp of the fundamental goods follows upon but is not derived from one’s persistent directedness toward the pursuit of certain ends, which directedness involves an implicit grasp of these items as good. So human beings exhibit a tendency to pursue life, knowledge, friendship, and so forth; and reflection on this tendency occasions an immediate grasp of the truth that life, knowledge, friendship, and so forth are goods. The affirmation of the claims ‘life is good,’ ‘knowledge is good,’ ‘friendship is good,’ etc. makes intelligible the persistent pursuit of these ends by rational beings like us. A developed natural law theory includes within it a catalog of the fundamental goods, the basic values upon which the principles of right are founded. Suppose that we follow at least the inclinationist line, taking it to be faithful to the natural law idea that knowledge of the basic goods is widely distributed. Our task as inclinationists, then, is to provide an explicit account of those goods accepting that implicit knowledge of them is manifested in human inclination toward certain ends. [8: Aquinus, T. (ca. 1273). Summa Theologica.]

Analytic Naturalism

Moral realists hold that there are objective, mind-independent facts and properties; moral naturalists hold that these objective, mind-independent moral facts are natural facts. According to naturalism, the only facts we should believe in are those compatible with the results of science. Analytic naturalism goes one step further by offering that moral claims are synonymous with certain claims in the natural sciences. By this reasoning, Analytic Naturalism may provide us with a sensible explanation of how moral facts could be “natural” facts.[footnoteRef:9] We might define a “natural fact” in linguistic terms as the kind of fact about which we make certain kinds of claims—natural or descriptive claims. Claims are or are not “natural” depending on what kind of terminology they use. Claims that use normative terminology like ‘good’, ‘bad’, ‘right’, ‘wrong’, etc. are normative claims. Claims that avoid this use of evaluative terminology, and instead use terminology common to the natural sciences, are natural claims. If moral claims and natural claims are synonymous, then moral and natural claims must refer to the same facts. If the moral claims refer to the same facts that natural claims refer to, it follows that moral claims refer to natural facts. [9: Parfit, Derek, 2011, On What Matters (Volume Two), Oxford: Oxford University Press.]

The Study’s Relation to Previous Research

To guide the implementation of my method, I will rely primarily on two books. The first is Textens mening och makt by Bergström and Boréus.[footnoteRef:10] The second is Metodpraktikan by Esaiasson et al.[footnoteRef:11] [10: Bergström, G., Boréus, K. (2012). Textens mening och makt, 1st ed. Lund: Studentlitteratur; Esaiasson, P., Gilljam, M., Oscarsson, H., Wängnerud, L. (2012). Metodpraktikan.] [11: Esaiasson, P., Gilljam, M., Oscarsson, H., Wängnerud, L. (2012). Metodpraktikan, 1st ed. Stockholm: Norstedts juridik.]

In my treatment of Kantianism, it seems appropriate to rely on Kant’s Groundwork of the Metaphysics of Morals as a benchmark text.[footnoteRef:12] In order to conduct my analysis of Kantianism, I will subject this theory to specifically tailored criticism that challenges its implicitly proposed connection between absolute meta-ethical realism and deontological normative theory. I have preliminarily selected Hare’s criticism of Kantianism as a suitable candidate. Hare (1993) took Kant’s view to be that moral judgments are not truth apt.[footnoteRef:13] Although on the surface moral judgments can look as if they describe a moral world, they are, as Hare reads Kant, “prescriptions”, not “descriptions”. This is not, in his view, to say that Kant’s ethics portrays moral judgments as lacking objectivity. This criticism attacks the first assertion of meta-ethical realism by claiming that moral claims do not report facts as expressed by the CI. Instead, they offer prescriptions which untethers them from being absolute even if they are universally prescribed. [12: Kant, I. (1996). Groundwork of the Metaphysics of Morals. Cambridge: Cambridge University Press.] [13: Hare, R. M. (1993), “Could Kant have been a Utilitarian?”, Utilitas, 5: 1–16; revised in 1997a: 147–65. ]

In my treatment of Natural Law Theory, I will rely on Summa Theologica by Aquinas.[footnoteRef:14] Natural Law Theory is commonly criticized on the basis of the apparent difficulty of formulating a position that explains well precisely why an account of universal good is reasonable. To represent this criticism, I have selected Weinreb’s challenge from his work Natural Law and Justice, in which he argues that all efforts to develop a credible theory of natural law are doomed, and yet, that it is impossible to devise an alternative to conceiving of problems in moral and political philosophy as problems of natural law.[footnoteRef:15] [14: Aquinus, T. (ca. 1273). Summa Theologica.] [15: Lloyd W. (1987). Natural Law and Justice. Harvard. ]

In my treatment of Analytic Naturalism, I will rely on the book On What Matters written by Parfit, which offers that Analytic Naturalism can provide us with a sensible and tractable explanation of how moral facts could be “natural” facts.[footnoteRef:16] In order to evaluate Analytic Naturalism, I will rely on criticisms raised by Shafer-Landau in his 2003 work entitled Moral Realism: A Defence. Shafer-Landau rejects moral naturalism on the grounds that he believes that we can know moral facts by using intuition, which is decidedly not an empirical method.[footnoteRef:17] [16: Parfit, Derek, 2011, On What Matters (Volume Two), Oxford: Oxford University Press.] [17: Shafer-Landau, Russ, 2003, Moral Realism: A Defence, Oxford: Clarendon Press.]

In addition to these specifically tailored criticisms, I will conduct an additional analysis of each theory by evaluating the extent to which each theory stands up against Hume’s Law directly.

Research Material for The Future Thesis Project

1. Bergström, G., Boréus, K. (2012). Textens mening och makt, 1st ed. Lund: Studentlitteratur; Esaiasson, P., Gilljam, M., Oscarsson, H., Wängnerud, L. (2012). Metodpraktikan.
2. Esaiasson, P., Gilljam, M., Oscarsson, H., Wängnerud, L. (2012). Metodpraktikan, 1st ed. Stockholm: Norstedts juridik. p. 210
3. Hare, R. M. (1993), “Could Kant have been a Utilitarian?”, Utilitas, 5: 1–16; revised in 1997a: 147–65. Aquinus, T. (ca. 1273). Summa Theologica.
4. Hume, David, 1739. The Treatise Concerning Human Nature, Edited by L.A. Selby-Bigge. Oxford: Oxford University Press. (Edited by L.A. Selby-Bigge, 1888.) Book III, Part I, Section I, p. 469.
5. Kant, I. (1991). Perpetual Peace. Cambridge: Cambridge University Press.
   1. . (1996). Groundwork of the Metaphysics of Morals. Cambridge: Cambridge University Press.
   2. . (1999). Critique of Pure Reason (The Cambridge Edition of the Works of Immanuel Kant). Cambridge University Press.
6. Lloyd W. (1987). Natural Law and Justice. Harvard.
7. Parfit, Derek, 2011, On What Matters (Volume Two), Oxford: Oxford University Press.
8. Shafer-Landau, Russ, 2003, Moral Realism: A Defence, Oxford: Clarendon Press.