1. Constitution, Society, and Leadership Week 5 Unit 2 Concepts of Law: Natural Law Christopher Dreisbach, Ph.D. Johns Hopkins University

2.  Natural Law Theory  Three basic tenets ▪ Law comes from an external power ▪ Law and morality walk hand in hand ▪ There are natural—inalienable—rights  Opposed to ▪ Legal Positivism ▪ Legal Realism 2

3.  Feinberg & Coleman, Ch. 1: The Natural Law Tradition  Five selections ▪ Thomas Aquinas, Selections from On Law, Morality, and Politics ▪ Lon L. Fuller, Eight Ways to Fail to Make Law ▪ Mark C. Murphy, Natural Law Jurisprudence ▪ Jeremy Bentham, Of Laws in General ▪ Lon L. Fuller, The Case of the Speluncean Explorers 3

4.  On the Essence of Law: Four Points  Law pertains to reason because ▪ Law “binds one to act” ▪ The rule and measure of human acts is reason 4

5.  Law is directed to the common good because ▪ Law pertains to reason ▪ Law is a practical matter ▪ Practical reason pertains to practical matters ▪ Ultimate end (goal, purpose) of practical reason is happiness ▪ Ultimate happiness is universal ▪ Not just individual 5

6.  Only the reason of a whole people is competent to make law because ▪ Law aims at ordering for the common good ▪ To order for the common good belongs to ▪ The whole people or A representative of the whole people 6

7.  Promulgation is essential to law because Promulgation ▪ “Law is imposed on others by way of a rule or measure” ▪ “A rule or measure is imposed by being applied to those who are ruled and measured by it” ▪ “For law to bind, it must be applied” ▪ Application implies promulgation  Law=“A certain ordinance of reason for the common good, made by him who has care of the community and promulgated.” 7

8.  Natural Law specifically  Natural law may be added to but not taken from because ▪ “Many things for the benefit of human life have been added” ▪ Natural law is the first principle of anything else 8

9.  The law of nature cannot be abolished from people’s hearts because ▪ Natural law has general principles known to all ▪ Particular precepts deduced from natural law may be know only to some 9

10.  Fuller, Eight Ways to Fail to Make Law  Allegory of King Rex: Failed as legislator and judge in 8 ways: 1.No rules at all 2.Failure to publicize the rules to the affected party 3.“Abuse of retroactive legislation” 4.“Failure to make rules understandable” 10

11. 5.“Enactment of contradictory rules” 6.“Rules that require conduct beyond the powers of the affected party” 7.“Introducing such frequent changes in the rules that the subject cannot orient his action by them” 8.“Failure of congruence between the rules as announced and their actual administration” 11

12.  Basic point  Failure of law implies inability to obey the law  Inability to obey the law implies no duty to obey the law  Therefore, there is no moral duty to obey bad law  Given this moral ground of law, it must be based on natural law 12

13.  Murphy, Natural Law Jurisprudence  Point: A weak reading of natural law theory in the abstract with regard to analytic jurisprudence is plausible and defensible  Natural law theory from analytic jurisprudence: ▪ Tries to abstract natural law from ethics and politics ▪ Retains requirement that the law be reasonable ▪ Contrary to positivism or realism 13

14.  Formulating the Natural Law thesis ▪ Hart: Natural law theory claims that law and morality are inseparable ▪ Murphy: Hart is wrong ▪ Better-Strong Reading: law sets standards for rational agents  But--Positivists: Law can be valid without setting rational standards ▪ Best-Weak Reading: There can be law with which it would be unreasonable to comply 14

15. ▪ Three Plausible arguments for the weak reading ▪ Internal-Point -of-View (John Finnis): If we don’t have internal reasons to feel morally obliged to obey the law, it will appear to be a bad law  Objection: We can understand the rules of a game without feeling morally invested in those rules ▪ Functional- Kind (Michael Moore)  Law should be defined in terms of its function  Need to find a distinctive goal that the law serves  Objection: Not necessarily a moral goal  Murphy: Weak reading survives this objection  Reasons to disobey need not be moral reason 15

16. ▪ Self-image (Joseph Raz)  Law must be authoritative  To be authoritative it must be reasonable  If law lacks authority it is defective ▪ Murphy: This is the best of the three arguments in defense of the weak reading, namely  There can be laws with which it is unreasonable to comply  Which legal positivism would deny 16

17.  Jeremy Bentham, Of Laws in General  Attacks natural law ▪ Especially in its form of customary law ▪ Three premises ▪ An alleged customary law is either quasi-law (at best) or derived from statutory law ▪ If quasi-law, then not law ▪ If statutory, then positive, not natural 17

18.  Fuller, The Case of the Speluncean Explorers  The Story: five explorers trapped in cave-in ▪ Crisis last 32 days ▪ At 20 days: explorer Roger Whetmore asks rescuers by radio how long before rescue ▪ Answer: at least 10 more days ▪ Asks MD: could the 5 survive that long without food?  Answer: No ▪ Asks MD: Could 4 survive if they ate one?  Answer: Yes 18

19.  Ask: would MD, judge or priest comment on this option?  No ▪ Whetmore convinces the other 4 to roll dice to decide who is eaten  He withdraws  Another rolls the dice for him  He loses  The 4 eat him 19

20. After the rescue the 4 are found guilty of murder  Requires death penalty  Jury & judge appeal to executive to commute the sentence  Executive awaits supreme court decision 20

21.  Supreme Court decision: split, so sentence is affirmed ▪ Chief Justice Truepenny: Affirms ▪ The law in this case is clear ▪ Recommends executive clemency anyway ▪ Justice Foster: Denies ▪ They were under natural law (survival!) and not statutory law ▪ Justice Tatting: Neutral—The defendants ▪ Had a choice ▪ Were tried in a human court, not under natural law 21

22. ▪ Justice Keen: Affirms ▪ If executive wants to commute, that’s up to him ▪ The moral question in this case is legally irrelevant ▪ They broke the law ▪ Justice Handy: Denies ▪ Common sense says they are innocent ▪ Public opinion says acquit ▪ Four legitimate ways they could escape punishment  Judge finds no crime  Prosecutor refuses to indict  Jury acquits  Executive pardons 22

23. Fuller’s point: The case cannot be settled by appeal to positive law alone. 23

24. Constitution, Society, and Leadership Week 5 Unit 2 Concepts of Law: Natural Law Christopher Dreisbach, Ph.D. Johns Hopkins University