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Thursday, January 7, 2010


My younger son, Tobias, who is teaching Conflict of Laws this semester at NYU Law School, asked me some questions a few days ago about a debate that has gone on for a long time in the jurisprudential world concerning the nature of law, a subject related to some scholarship he is engaged in. I talked to him for a bit about a debate between the English legal theorist H. L. A. Hart and the American Lon Fuller, a debate that was very much on the minds of philosophers when I was a graduate student and Instructor at Harvard. Fuller was a defender of what is known as the Natural Law tradition in legal theory, a point of view deeply rooted in Continental European legal theory but very much out of fashion with analytic philosophers in the middle of the last century.

The thesis that there is a law written by God into the fabric of nature and revealed to us by our human power of reason was of course a fundamental tenet of the belief system of the men who wrote the American Constitution, a fact that modern day conservative legal theorists remind us of on every occasion, but that liberal legal theorists would rather forget. Recall the opening paragraph of the Declaration of Independence:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

That phrase, "laws of nature," has become so embedded in the discourse and political theory of the Western tradition that we tend to forget, if we ever knew, that when first introduced into that tradition it was presented as a deliberate paradox designed to affront the readers and make them reject their settled convictions. The phrase appears for the first time in Plato's great middle dialogue, the Gorgias. The speaker is Callicles, the third of the three opponents of Socrates in the dialogue. He reminds us of the contrast, familiar to Greeks of the time, between physis, or nature, and nomos, or convention. That fire burns is a fact of nature, of physis, and is unchangeable by our will or desire. That theft is wrong is a convention, invented by men and as easily changed. But, Callicles declares, it is natural that the strong should rule. A. E. Taylor, the great Plato scholar, glosses this rather nicely in his book, Plato: The Man and his Work [p. 117, footnote]. He writes: "The first occurrence, so far as I know, in extant literature, of the ominous phrase 'law of Nature.' Callicles, of course, intends the words to be paradoxical --'a convention, if you like, but Nature's convention, not a human device."

It was the Stoics, several centuries later, who took up the notion and provided it with a theoretical foundation. God, they taught, created the world and imposed on it a rational normative order, dictating both how nature must act and how men ought to act. This same deity implanted a spark of the divine logos in man as the power of reason. Because the objective normative order of the universe and the subjective power of human reason were expressions of this same divine logos, man's reason is capable of apprehending the objective normative order. Thus, as John Locke claimed in the 17th century, the Law of Nature is written into nature and is known by man prior to and independently of any social and political order that he may choose to establish. It is the obligation of those who guide a state, or indeed for those who establish one de novo, to write into its conventions, its positive laws, its constitution, the objective normative order that their rational power apprehends.

The natural law theorists maintain that only those human conventions or positive laws [laws, that is to say, by virtue of the position of those who proclaim them] that conform to the Laws of Nature are truly laws and hence are binding on us. This view was extremely attractive in the 1940's and 50's to legal theorists who were struggling with the fact that the horrific acts of the Holocaust had all been carried out according to laws promulgated by the German state and administered by distinguished judges who abided in every way by the legal formalities of which they were universally acknowledged to be masters.

Why on earth am I writing all of this in my blog? Because it is interesting, conceptually interesting, and after a while I begin to feel a revulsion at the mindless superficiality of the political commentary that dominates our public space. It refreshes my mind and, as it were, cleanses my intellectual palate, to devote a few minutes to writing about something that it is actually worth the time of an intelligent person to contemplate.


Maciek said...

Is in your opinion, Mr. Professor, conflict between positivist and ius-naturalistic approaches to law, possible to resolve? It seems to me, also Hart in "The Concept of Law" mentioned about a "minimum of laws of nature", which is necessary for each system of law, because it would be hard to imagine, that reasonable people can consciously and voluntarily accept the unjust law-system (maybe Kant's categorical imperative could be used in this context, on external, iuridical, level, to evaluate the Law?). It is problematic. On the one hand, it seems to be impossible to build really universal, and ideologically neutral catalogue of natural rights and laws (for example, John Finnis catalogue from "Natural Law and Natural Rights" seems to be not as "self-evident", as he convince). On the other hand, the concept of law represented by legal positivists, seems to be always connected with assumption of external coercion (in Hart's case - "internal point of view" and possibility, to have a "critical-reflective" approach to positive law, don't convince me), which is the "core" of positive law. What rules of law can be used in the light of positivist theory to punish people, who were responsible for the Holocaust, or for the crimes of totalitarian states? (Both, German Nazis and "Berlin shooters" were judged on the ground of rule, which was close to the well known Gustav Radbruch's formula: a combination of positivist's point of view with ius-naturalism). Pure positivist theory strictly assume the rule lex retro non agit. On the ground of this rule and Nazis, "Nurnberger Gesetze", Holocaust crimes were not the crimes at all, they are legal (!!!)". I think, it remains always a biggest threat of legal positivism (and it is worth to mention, that in Poland it is not only an abstract problem, but practically very important and current question. For example, we have recently a big juridical problem with a retired pay of the functionaries of services of the totalitarian regime. Is that just to give a big retired pay to them? They doesn't commit the crimes in those times, they does act legally in services of totalitarian state, but they were the biggest beneficiaries of old regime.)

Ann said...

I have a question regarding this quote from your blog: "The natural law theorists maintain that only those human conventions or positive laws [laws, that is to say, by virtue of the position of those who proclaim them] that conform to the Laws of Nature are truly laws and hence are binding on us." Isn't this judgment vulnerable to bias...that is, who is competent to judge the "laws of nature?" said...

RE: who is competent to judge the "laws of nature?"

Just as you "judge" gravity....

"...they are without excuse..."

Romans 1:19-32 - Because that which may be known of God is manifest in them; for God hath shewed it unto them. For the invisible things of him from the creation of the world are clearly seen, being understood by the things that are made, even his eternal power and Godhead; so that they are without excuse: Because that, when they knew God, they glorified him not as God, neither were thankful; but became vain in their imaginations, and their foolish heart was darkened. Professing themselves to be wise, they became fools, And changed the glory of the uncorruptible God into an image made like to corruptible man, and to birds, and fourfooted beasts, and creeping things. Wherefore God also gave them up to uncleanness through the lusts of their own hearts, to dishonour their own bodies between themselves: Who changed the truth of God into a lie, and worshipped and served the creature more than the Creator, who is blessed for ever. Amen. For this cause God gave them up unto vile affections: for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet. And even as they did not like to retain God in their knowledge, God gave them over to a reprobate mind, to do those things which are not convenient; Being filled with all unrighteousness, fornication, wickedness, covetousness, maliciousness; full of envy, murder, debate, deceit, malignity; whisperers, Backbiters, haters of God, despiteful, proud, boasters, inventors of evil things, disobedient to parents, Without understanding, covenantbreakers, without natural affection, implacable, unmerciful: Who knowing the judgment of God, that they which commit such things are worthy of death, not only do the same, but have pleasure in them that do them.

Murfmensch said...

@EarsToHear There is no reason to accept this piece of scripture as evidence.

I do not use the Bible for evidence in astronomy or geology. Nor would I do so for ethics or politics.

Shoreman said...

Free will is thought to be the most decisive characteristic by which man is distinguished from animal. It is fair to say that conscience accompanies each freely willed decision as an experience of rectitude or guilt. That which interferes with the ability to freely decide is fundamentally at odds with our basic nature and is to be avoided. The awareness and conformance with the voice of conscience is the basis for law. Thus it is that human behavior is a moderated freedom. That conduct to which a plurality of people agree and codify is the basis of law. (It is therefor crucial that truth be the foundation of public education.)
This is why our constitutional form of a democratic republic is acceptable to both believers and non-believers said...

@Murfmensch - I'm happy America's Founders didn't think like you. See Did You Know? for what has been removed from the classrooms which aided in America's Biblical moral decline and into progressive political correctness.