natural law

natural law

oldest legal tradition, heavily associated with Christian worldview, tho not always the case.

Key of appeals to body that is eternal and has existed since time immoral and influenced in some way by divine ethereal nature.

begin with the idea what all humans are capable of reasons, are conscious actors but humans also have innate sense of morality (regardless of any spiritual beliefs).

Belief, that there is a right and wrong, that feeling comes from god or higher being that has created humans in its image

divine reason 'logos'

centrality and world wide principle of rightness and wrongness that is cross cultural. just by being on this earth.

from this we get the golden rule, do what to others what you would have them do on to you.

argue that this is a universal moral concept.

cannot have laws that are discordant to the divine reason

the summa

written by st thomas , manual for Christian life.

outlines the way in which difficult moral and legal questions could be solved.

earliest to argue for scientific, to use logic and rigor and understand broad philosophical perspectives (nature of humans and origins and limits of governments).

the social contact

rights of humans, obligations of governments and the relationship between those two entities.

that together with the state our bound by a reciprocal agreement where we give up our rights for protection for remaining rights that we still hold.

7 basic goods that natural law argues - PRSkSSoSjRea

humans desire basic goods, and that basic goods are inherently structured around our morality ->

1. preservation of life

2. reproduction

3. to seek knowledge (learn, study)

4. spirituality (seek god)

5. sociability

6. to play/seek joy (avoid offence)

7. reasonableness (use own wisdom and judgement to order your life)

new era natural legal theorist

Lon Fuller - wants to understand how the german government operated under the nazis and if it could be ever understood as legitimate. Were the nazi laws valid laws using a natural legal framework?

Fullers argument was that none of the laws that were passed and in effect were legitimate and that what was put forward by germany was an abdication of law (abandonment of any justice).

The laws of the German Government were not legitimate at the time as it did not promote human freedom.

Fidelity to law is not legitimate (doing what you were told, obedient structure does not mean it will be legal)

Lon fuller - 8 step test of new legal framework/ to test of laws are valid - GCFlUCCpNcE

1. are they general enough that they can apply to everybody on standard behaviour

2. 2. published / communicated?

3. 3. are they prospective / forward looking?

4. 4. unambiguous?

5. 5. consistent?

6. 6. is compliance possible?

7. 7. non contradictory

8. 8. enforced by those in compliance.

if any of these steps fail, the law is no longer valid.

The basis of law is justice, but his view of justice isn't religiously connected (secular law) and rejecting (brooding omiprecense) .

Justice is when laws promote human freedom and flourishing. These are a fixed moral construct that all ethical moral ground-making will flow.

this is a procedural version of natural law. ( when a legal system no longer achieves minimum degree of procedural moral legitimacy, its command expires). t

o do justice - procedure

Procedural natural law

morality comes from the way steps proceed properly and in congruence with human flourishing and freedom.

classic natural law

a higher moral authority was said to found all human law. plato, aristotke, st thomas

John Finnis- LPPokMRPrASo

worked with Fuller on some legal conceptions, but their difference was that Finnis is less concerned with procedure than Fuller is and instead recreated the 8 basic goods.

1. life,

2. play,

3. pursuit of knowledge

4. but removing reproduction and substituting it with marriage,

5. religion

6. practical reasonableness ( the ability to be logical and consistent)

7. aesthetic experience (culture, art music) and

8. sociability of friendship

All of human freedom can be found within these goods, procedural law is not about flourishing but adhering to these goods. Also he is slightly more interested in spirituality.

to do justice - through community / common good

HLA Hart

argues that Fuller is doing exactly what he claims people should not.

Brings Legal Positivism concept.

If you can pass a law through the procedures of the processes of the time, it is a valid law.

natural legal theorists get fixated on what the law should be and is not dealing with what the law is in any given moment.

Agrees that laws can be immoral, and believes there are circumstances where people should not abide the laws.

The real test for the validity of the law is whether or not people obey the law and that the people that are enforcing them have a valid legal objective..

Law is not abided by morality. ex - nazi laws are valid laws, and believes you can punish the same people who made those laws

the context of the beef

apartheid south africa (prohibiting inter-racial marrage), stating that it is based off natural law.. Fuller gets pulled into the debate of implementing the natural legal theory, that there is an unbreakable tie between law and morality, that it must have a purpose and make sense, the question of if you are going to obey the law is a moral question (rightness and wrongness).

Legal positivists are not convinced - that laws can be valid without being moral (fuller says no, that they cannot be valid if never moral).

Until Finnis, legitimacy of mixed marriage and if it does good, needs to be measured against his 8 basic goods.

The act does not serve the common good of ALL people, violates unit of sociability. Finnis says humans do not have obey laws that are immoral but it doesn't mean that you can disregard them forever and all time, if we just disobey laws we will have chaos and under value the legal system.

Collateral Obligation

Finnis - you need to express your disapproval and change the laws using the law its self .

Something can be inconsistent but you may have humans who need to temporary abide by it to dismantle it.

Always have a duty to that system that needs to be upheld.

classic theory and natural theory

intertwined, morality is objective, we all share it

Legal positivists

laws are human convention that exist to support order and societal function, not morality.

It creates easier standards of behaviour and consistency within communities.

Every society is going to have a different legal standard,

to be valid - was it passed by proper people with the proper procedures? If it was, it is valid moral or not.

the first legal positivist

Thomas Hobbes - made leviathan, had a pessimistic view of human nature. human beings are naturally egotistic, rational, free-willed beings who pursue pleasure and repulsed by pain.

fear of death entices people to form a social contract.

defines law as a legitimate command from a sovereign obeyed by subjects that is human formed (has to be tangible).

john austin

defines the study of law as a body of human created knowledge that does not refer to morals.

four characteristics of positive law - proposed by john austin

1. law is posited by a sovereign (by nation state, and authorized agents)

2. 2. positive law takes form of a command, signifying a sovereigns desire that something to be done

3. 3. law is a command backed by a sanction, or a threat to one to enforce obedience

4. 4. law as a sovereign command accompanied by sanction, natures a obedience from from subjects that insures regularity of legal systems

HLA Hart criticizing Austins claims

the duty to obey law is more important than Austin gives credit to. There is an internal aspect to the characteristics, that the law creates a standard of behaviour for that the group follows.

This is about a compulsion, you do it because there is a centrality to knowing that it is obliged of you.

Conceives laws as internal and external aspects and that you cannot separate these two.

you can observe people following law (external) but you need to understand why they do it (internal).

He says society is governed by rules, and not just the ones from law.

Hart and his rules of obligation

separates out morality and law. included -

1. rules of law and

2. rules of morality,

rules of law differ from morality bc they can mobilized coercive physical punishment to achieve conformity.

Two types of legal rule - primary rules and secondary rules

primary rules of legal obligation

created by HLA Hart. basic rules found in all societies; specific directly what people ought to do. by themselves primary rules, they are not law.

patronizing, modernist, Eurocentric perspective - saw them as 'pre legal' in primitive communities.

saw primary rules as unstable as they are often change as they are challenged especially as a society diversifies

secondary rules of legal obligation

control the operation of primary rules, various kinds

- rules of change - authorize agents to create new primary rules.

rules of adjudication - empower individual make authoritative determinations on whether a primary rule has been broken.

rules of recognition - determine rules that are legitimately form part of the legal system, they recognize & isolate the legal rules. ex - correct processes, correct legal authority etc..

harts law on validity of laws

the validity of the law can be determined using two conditions - .1 that citizens accept the primary rules within a society.

2. and the officials of society accept the secondary rules of change, adjudication, and recognition,… proper procedure by relevant persons

Harts final assessment

immoral laws operated in legal systems that appears to have met the basic criteria for validity.

argued that the nazi law operated on the basis of the legal rules (primary and secondary) and was valid within its context. this uses categorical moral reasoning,

legal positivism

derived from observation, goes way back that empiricism that knowledge emerges when a sensory experience can be verified, interested in objective but morally neutral way to examine law.

focuses on sociological positivism and using law as an organism to be examined. the goal is to understand how legal systems work, interested in what law is opposed to what law ought to be.

criticizes - natural law bc its so focused on what laugh should be, might be.