Classical Natural Law theories and Classical Positivism

1. Classical Natural Law theories and Classical Positivism Dr Philip A. Quadrio

2. This Lecture • Identify core features of Classical Natural Law theory • Identify core features of Classical Positivism • Understand the criticisms Classical Positivism makes of Classical Natural Law theory. • Understand the limitations of those same criticisms. • Understand some of the criticisms made of Classical Positivism by 20th Century positivism.

3. Natural Law • Natural law theory holds that there is an objective standard by which any law can be held to so as to determine its status as law – the law is subject to an extra-legal legitimating standard. Insofar as a law is connected to such a standard it is not only binding in the positive sense but binding per se • Focus: • What are the limitations of law making • What is the proper function of the law • What is the nature of our obligation to obey the law

4. Realists + Constructivists • A realist natural law theorist holds that there is a moral standard to which the laws are subordinate which is independent of human beings but knowable to them (direct cognition of moral truth). • On the other hand a constructivist natural law theorist holds that moral truths are discovered by rational enquiry, they are constructed by rational reflection on human life and its needs, both physical and social (indirect or mediated cognition of moral truth). • Either way we are discovering something objective • Watch out for hybrid theories!!!

5. Plato 1: The Realist • Plato argued that human law ought to be generated with reference to Ideal forms of justice and goodness, by ideal we mean the pure justice and pure goodness, so justice or goodness in itself, unmixed with any other quality • Ideal justice and goodness could be humanly comprehended or cognised and thus used as a standard. Rational insight into ideas like goodness and justice is the source for evaluating any social regulation, the good society is the one that conforms to what reason has discovered about justice and goodness

6. Plato 2: Hybrid • A legal code has a pedagogic purpose, laws are there to help create good citizens, to educate them in virtue, to show the citizens where virtue lies • Good laws are rational laws and rational laws have the power to produce virtuous citizens • Rationality is the bench mark, laws have a purpose, to produce rational and therefore virtuous citizens • law is limited by this ‘perfectionist’ notion, the bounds of what can be law are the bounds of what can produce ‘rational citizens’

7. Plato: disobedience and the limits of the law • No state can demand of a citizen that which is unreasonable, because demanding that a citizen act against reason does not teach what reason demands, it contradicts what reason demands, in contradicting reason it fails to teach virtue and thus it fails to achieve the proper function of law, to create virtuous (rational) citizens • One has the right to resist the state based on averring wrong (irrational) actions. This does not, however, protect one from a violent reaction from the state.

8. Aristotle: Constructivist • Teleological Framework – telos = goal, end or purpose. • The purpose of the state is to assist its citizens to realise their potential, or to assist in the flourishing of the citizens • The flourishing life = rational life. To flourish is to reach a condition where one is capable of seeing what is rationally required in any circumstance. • Good law facilitates flourishing, it constrains vice, produces virtue and allows reason to flourish. Thus guiding us to rational and virtuous ends • Legislators need the wisdom to discover these

9. Aristotle: Disobedience and limits to law • Universal justice is sensitive to the ways in which individual laws can, from time to time, counteract human flourishing. • It is impossible that one would be able to generate a law that could cover each and every circumstance • what reason demands is a stepping outside of the rule in order to consider the details of the case – such a consideration is limited by the goal of arriving at a decision that will in fact facilitate flourishing

10. Cicero: Realist • LexVulgus, the particular legal provisions of a state - legitimate only insofar as they advanced the ‘proper purposes’ of the state where ‘proper purpose’ is determined by what reason demands. • Lexcaelestis, the celestial or divine law. We cannot know it in its entirety but through reason we can know aspects of it. • LexNaturae, that aspect of the divine law which can be known to human reason – divine laws, once comprehended by humans become natures laws (divine laws accessible to human insight). • Positive laws not in line with the proper purposes of the state (not in line with reason) cannot be in line with natural law and so are deficient law.

11. Augustine: Hybrid? • Humans are torn between vice /virtue (good/evil) • LexAeterna, eternal law decreed by God’s will teaches virtue and eliminates vice • LexTemporalis was to discourage vice through coercive force, insofar as some specific legal provision discourages vice that law is good. • What about laws that do not discourage vice? ‘Lexiniusta non estlex’ - an unjust law is no law. He means that anything one finds in a state’s laws that is unjust has not been derived from the eternal law, but it is still enforceable.

12. Aquinas: Constructivist • Law sets before the citizen an account of the good, particularly it shows them something about being a good member of the community. • Origin and purpose of the law: the law is rational or generated by reason and it is there for the good of the community, it functions for the common good. But it is also there to show members of the community what is good, so it promotes virtue

13. Aquinas: Constructivist • Law (and morality) are vehicles through which human beings are guided towards their proper purpose or proper end, that purpose or end is itself determined by a kind of cosmic rationality. • There are two ways that we can indirectly discern the content of cosmic rationality, through reference to revelation and through the fruit of human reason.

14. Aquinas: Limits of the law • When human laws depart from or fail to understand these two sources the possibility of bad laws arise. • We have no general obligation to obey a bad law but we have to take great care with any particular act of disobedience, for disobedience can create instability which is bad. • For the sake of a stable peaceable society, some degree of injustice ought to be tolerated, rebellion and disobedience must be tempered by real needs.

15. John Locke: Realist (Hybrid?) • People had a natural right to certain properties, they had property rights over their bodies, and the labour of their bodies and with that they also had a natural right over anything that they produced via labour. • It is easier for us to protect our natural right to property when we live in a society with laws and a justice system to enforce them. • the primary purpose of government and legislation is to protect our natural right to property

16. Locke and Limits of the Law • Law can be assessed on the basis of how far it goes towards the protection of our natural right to property • There is a limit to governmental and legislative authority: if it is established to protect property rights than any exercise power destructive of our property rights (and remember that includes the property we have in our own bodies) is unjust. • The people thus have the right not only to reject that exercise of power but also to overthrow the government and establish a new legislative system.

17. The Problem of Objectivity • Natural Law theory rests on the idea that there is a perspective external to the law that can both provide a foundation for law but also a criterion of evaluation. • Problem! One must be sure about what the external perspective demands. • Having this certainty implies we can distinguish those moral principles on which we found and evaluate law from opinion, subjective whim, or prejudice. • That is not as easy as it might seem.

18. 3 Orientative Questions • What is the nature of legal reasoning? legal reason traces to a conception of the proper function or purpose of the law - defined either by moral reason or an eternal moral standard • What is the relationship between law and morality? Law is subordinate to morality in the sense that law is subject to a moral evaluation. • How does law exist? Actual laws might not have emerged from reason and might be a purely human product. Ideally law ought to be founded on a morality/a rational assessment of human needs .

19. Positivism: descriptive not normative • Positivism is focused on a descriptive theory of law • While Naturalists ask what ought the law be? Positivists ask, what essential features do laws display? • The questions are different, but this does not mean that the two approaches to the law see themselves as compatible – positivism sees itself as a challenge to naturalism, as rejecting it. Naturalism does not see itself as rejecting any other theory.

20. Descriptive approach versus normative considerations • Positivists do not reject normative considerations outright – rather they deny the institutional legitimacy of law is derived from normative considerations • Moral considerations are superfluous in identifying what is law. • If you want a theory that gives you an account of law such as to enable you to identify what is and what is not a law, you don’t have to include moral criteria. • Moral considerations might be interesting further questions they are not part of the identification of law

21. Jeremy Bentham (1748-1832) • Two aspects of Bentham’s rejection of Natural Law theory • Polemical point - His work is largely bound up with a criticism of the work of Sir William Blackstone, author of Commentaries on the Laws of England • But he has Philosophical point to make against Natural Law theory, for him it transgressed the Humean distinction between ‘ought’ and ‘is’.

22. Problems with Bentham’s ‘scientific’ approach • It seems to presume that there is only one legitimate way of generating well-founded knowledge, that which proceeds on a scientific and factual basis • We could also attack the ‘is’ ‘ought’ distinction and there are a number of ways we could do that. • The Natural Law theorists does not necessarily run afoul of the ‘is’/’ought’ distinction. Most accept that legal practice might not live up to its ideal form, nor do they claim that one cannot in fact be punished for breaching a bad law. What they say is that given that the law ought not be the person being punished ought not be punished.

23. Bentham: expositorial and censorial approaches • Bentham wants a strict separation between two aspects of jurisprudence – exposition and censorship • The expositorial practice of jurisprudence is an attempt to explain to us what the law in fact is. • The censorial practice of jurisprudence is a critical practice that out-lines what the law ought to be • If I will only count as law those things that I morally endorse I may be tempted to suggest that many laws are not in fact law because it lacks moral features, but for Bentham law is law and I can just as well be hanged for disobeying a bad law as I can for disobeying a good one

24. Expositorial and Censorial: Why? • If I will only count as law those things that I morally endorse I may be tempted to suggest that many laws are not in fact law because it lacks moral features, but for Bentham law is law and I can just as well be hanged for disobeying a bad law as I can for disobeying a good one • Far better to separate the process of identifying what is law from the process of criticising law, that way I can both acknowledge law as law on one hand and then make criticism of it on the other and all without running the risk of mistaking a bad law for a nullity • But – censorial practice does not have legal weight.

25. Command Theory of The Law • Command – is an expression of the sovereign will, it expresses what the sovereign wills to be the case, and because it is a command we note that it is an imperative, that is, the commanded do not have a choice. • Sovereignty – the supreme authority within a polity or state be it embodied in a single person such as a monarch or a group of persons such as parliament • Sanction – the consequences that are attached to the command so that those who are commanded have a motivation to comply with the command, sanction is a way of motivating compliance

26. Command • John Austin unpacked the command element of the theory as follows • The wish of a rational being that some other being shall do or forbear some activity • An evil or a harm will proceed from the former being to the latter being in case that the latter disobeys that wish • The wish is expressed in words or other signs.

27. Sovereignty • The supreme political authority within a community • “any person or assemblage of persons to whose will a whole political community are (no matter on what account) supposed to be in a disposition to pay obedience and that in preference to the will of any other person”. • Austin augments this by suggesting that not only is the sovereign the preferred political power but that the sovereign ought not be in the habit of obeying any other power. That is Austin stresses the point that for a sovereign to be sovereign it ought not be in the habit of obeying anyone else

28. Sanction • This is a matter of motivating compliance • Motivational hedonism - only pleasure and pain • It is probabilistic: there is no certainty that the sanction will be efficacious, only a probability that it will be so • The sanction cannot be disassociated from the law • Sanctions could be both positive or negative: coercive sanctions threaten an unpleasant consequence for disobedience, whereas alluring sanctions promise a beneficial consequence

29. Command Theory = Descriptive/Expositorial • It is clear that the command theory is descriptive, it helps us identify what IS law. • In order to identify some rule as a law all we need to do is trace it back to the expressed will (command) of a sovereign (a supreme political authority), which is backed up by sanction (a motivation to comply). • It does not entail anything about the morality of what we find in the law, it merely shows us what features we are to look for in a social practice in order to determine whether that practice is a law – its expositorial

30. Orientative Questions • What is the nature of legal reasoning? Determining whether some act or forbearance conforms to or fails to conform to some sovereign command. • What is the relationship between law and morality? Law, in its practice, is separate to morality – laws might be moral, that depends on the law in question, but law is not rendered legitimate by its relation to morality. • How does law exist? Law exists primarily through sovereign authority

31. HLA Hart: Positivist critic of Positivism • Argument by analogy which is meant to show that the command theory fails to provide a proper descriptive account of the law • The Gunman situation writ large: the sovereign, like the gunman, is using coercion to motivate compliance to his will • But, legal obligation “ain’t like that” so – the command theory fails to give us a proper insight into the phenomenon or experience of legal obligation and so it fails as an analysis of legal obligation

32. HLA Hart – Positivist critic of Positivism 1. Spurious uniformity: on the classical positivist account law is subject to a spurious uniformity. • It is not the case that all laws are commands ordering people to do or forbear certain activities under the threat of sanction – perhaps criminal law, BUT… • Some laws are power conferring, these are not command • See readings for other criticism from Hart.

33. Hart on Obligation: External and Internal Perspectives • Austin views legal obligation as being brought about by sanction BUT…This does not make any reference to the attitudes, beliefs, desires of those obeying the law. It seems as if we obey out of threat. People are obliged because there is a sanction. This is an external account, it does not consider the internal perspective. • To explain obligation we have to consider it from the perspective of those internal to legal institutions – we need to take an internal view of legal obligation - we need to attend to the perspective of those who participate in the relevant institutions .

34. The Internal Perspective • Laws are a species of social rule and are thus normative • A social rule is something that is perceived in a certain way - as normative, as having a claim on you, it is treated by the members of a group as a standard that that ought to be followed by the group as a whole. • The rule not only justifies the practice but also legitimates criticism those who fail to do things in accordance with it. We all understand the rule and find it binding, your failure to follow it is thus blameworthy

35. The Internal Perspective • The ‘critical reflective attitude’ - we can take an internal point of view on a rule, the view of those who use it to guide their lives, we can reflect on various actions and behaviours from that perspective and criticise failure to conform to it, indeed we can also criticise ourselves for our failure. • Those who take the internal point of view towards a rule accept it as a standard. They might do so without morally endorsing the rule • Social rules exist when members of a group behave in a certain way as a rule and expect others to behave similarly.