Adventures in Law School – Natural Law Jurisprudence, Pt. 2

Continuing with my discussion of natural law jurisprudence, we’re going to move away from the classical natural law theorists and begin moving forward in time.

Later Natural Law Theorists

Due in large part to the wide array of theorists that followed Thomas Aquinas, I’m not going to focus on many of them. I do want to mention two in particular though. The first is Francisco Suarez. While he approached natural law the same way that Aquinas did, he made a particular distinction between reason and will. For him, law was an act of will, and the ultimate will was that of God’s. God’s will was the Eternal Law, and the human will, in enacting legislation and issuing edicts, had to conform to God’s will in order to be just.

This stands in stark contrast to Hugo Grotius. He applied natural law theory to the international relationships between nations, arguing that nations should treat each other in the same way that individuals do within their community. For him, law was not simply an act of will. As with Aquinas, law was derived by the use of reason. More importantly, he held that this reasonable discernment of law would be the same whether or not there was a God, establishing for the first time since the rise of Christianity a secular basis for natural law.

John Locke

We could spend an entire series of posts discussing just John Locke and his views on human nature and political philosophy. Many authors have, as a matter of fact. However, for the purpose of these posts, we’re going to be discussing his view of the ethical underpinnings of any legal framework: namely, that individuals are endowed with certain inalienable rights.

Like Thomas Hobbes, John Locke was a social contract theorist. Unlike Hobbes, though, Locke did not think that man in a state of nature was a brute who would just as soon destroy his fellow human being as work with them. He did not subscribe to the notion that human beings must be kept in check by some superior authority lest humanity destroy itself. Instead, he recognized that human beings could be good or bad, and that they worked in their own self-interest. He also held that man was a political creature by nature. Even without some sovereign imposing its will on a group of people, people would naturally tend to create cooperative groups.

There are several reasons for this. First, and perhaps foremost, human beings have certain rights that are inherent in them being reasonable creatures. He constructed these rights as a right to life, a right to liberty insofar as that liberty did not also infringe on the liberty of another, and a right to justly acquire and dispose of property. While the founders of the United States replaced property with the Aristotelian construction of “happiness” in the Declaration of Independence, they built their principles on Locke’s construction of individuals rights.

Second, that human beings are governed by their self-interest. This means that most individuals, while not necessarily evil, are not likely to be the best arbiters in disputes to which they are a party. This is a reasonable observation to make; when something is taken from us or broken, we ascribe a higher value to it than it would otherwise be worth, and when we are the ones doing the breaking, we very clearly ascribe a much lower value to it. This makes negotiating and arbitrating disputes difficult

Third, any individual, even one who has rightly arbitrated a dispute where their right have been breached by another party, is only able to rely on his or her own power to take restitution or exact punishment. This very quickly leads to a situation in which the strongest person is immunized from the consequences of his or her actions, and the only recourse is a steady increase in violence.

To solve all of these issues, human beings form political groups. This starts as a community of people, but to address interactions between multiple communities, they will form larger political units. These political units derive their legitimacy from consent, as the mere act of exerting power does not, for Locke, confer any legitimacy or moral high ground to the conqueror. In exchange for agree to limit their liberty, these people create a political union for the purpose of protecting their liberties from outside threats and adjudicating disputes between themselves and others. A just government was one that respected the rights of its citizens, and just law were rules of conduct set down by such a government, constrained by the rights of its citizens.

To the point about obligation to obey law, or what a law really is, Locke held that any political union so constituted can also be unconstituted. If a government began to abuse the rights of its citizens, it would lose its legitimacy. There is no moral obligation to obey an unjust government, and Locke argued that any citizens of such a government were well within their natural authority to disband it. More to the point, an unjust or illegitimate government could impose no morally binding laws on its people, and the people have the right–and arguably the duty–to resist.

John Finnis

John Finnis represents the prevailing modern theory of natural law. For him, any theory of law should, as the classical natural lawyers thought, be considered as a part of a larger ethical whole. This ethical framework seeks to answer two primary questions: how should we live, and how can we discover the answer to ethical questions? The first is a normative analysis and revolves around discovering basic goods that every human being seeks, along with developing rules of conduct to achieve those goods, and the second is a more meta-ethical question. We’re going focus more on the first than the second.

According to finis, there are seven fundamental goods in human life: life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and friendship. All of these are intrinsic, as they are pursued for their own value. To give an example, health care is not an end in itself; it is a means to the preservation and betterment of life in the context of health. All of these are also self-evident. Finnis’s conception of self-evident is a little different than Locke’s, though. Whereas Locke meant self-evident to mean true a priori, what Finnis means by self-evident is that they do not derive from some more foundational proposition, and that any argument that attempts to falsify them runs afoul of logic in its attempt.

These seven are, according to Finnis, equivalent in value. The cornerstone of any good life is the pursuit of all of these. However, recognizing that some evaluation will be made in the context of specific situations, there is no prohibition on choosing to pursue one good at the temporary expense of the other. Choosing to pursue a means to achieve aesthetic experience over, say, knowledge is not bad by itself. It becomes bad when the person either rejects any pursuits of some or all the other fundamental goods, or when that person arbitrarily orders the goods in importance such that one is always subordinate to the others.

These seven fundamental goods give rise to moral obligations through intermediate principles, what Finnis referred to as “basic requirements of practical reasonableness.”
– One may never act directly against a basic good (lying, killing, etc.)
– No benefit justifies means that are contrary to a basic good
– One should form a rational plan of life
– One should not have arbitrary preferences among persons
– One should foster the good of the community
– One should not have arbitrary preferences between the goods

Law is a way of effecting some goods that are too complicated to be effected on a large scale. Individuals can pursue goods readily for their own benefit, but as the number of people seeking goods increases, it becomes increasingly more complex to achieve those goods, both separately and working together. Law allows for effective coordination of society to achieve other goods. However, Finnis takes same view of unjust laws as Aquinas. Unjust laws do not merit moral obligation, and should only be followed to the extent they uphold just institutions. If resisting those laws does not cause an action contrary to a basic good, or if the institution creating the laws is no longer just, any individual is morally justified in resisting.

That covers this overview of natural law theory and some prominent theorists’ analysis of natural law. Keep your eyes open for the next post, where we’ll deal with more legal theory before moving on to current US law!

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