Tutorials 3 & 4
Natural Law
For over twenty-five hundred years there was only one philosophy of law (at least in Western Civilisation which is what we study exclusively in this class). This was Natural Law. From Socrates to Aquinas and on, philosophers were concerned with finding the perfect set of laws to govern humanity. Essentially, the goal is to distill a set of rules which govern every situation. Can you think of one law which does this? (Perhaps the Golden Rule?) What about ten laws? Or a hundred?
Suppose I told you that the University issued a decree at 11 am this morning that all students are to wear red neck ties, and that since none of you wore them to tutorial, you are all suspended. Your first reaction would probably be to say, "Hey, that isn't fair! That goes against all principles of natural law!" So you have an idea in your head about what a fair law would be. But how do you write this down? Should it be a rule that a person should not be penalised for failing to obey a law that was only laid down that morning? Perhaps that is too narrow. (And it comes into conflict with the rule that ignorance of the law is no excuse.) How about stating it as a rule that no-one should be penalised retroactively for an act which predated a law? In other words, since you weren't in breach of any rules when you got dressed at 8 am this morning, you should not be penalised under a law passed at 11. That seems reasonable.
So, one way to go about writing the perfect laws might be to think inside yourself of how you would want to be treated in various situations. This is almost exactly the process that many natural law philosophers go through. They believe that natural laws can be reasoned from within -- they are not found externally. Usually they start by defining natural rights. The laws are meant to protect the rights. Hence, if we define that the right to life is a fundamental human right, then one needs a law "Do not kill".
(Note that these rules are not meant to be strictly a legal code, but rather a moral code. There are many administrative matters which have nothing to do with this type of law, e.g., what side of the road one should drive upon and what the maximum speed limit should be in a district.)
Of course a major problem is that principles of fairness and morality vary so much from person to person and around the world that it is hard to see how there could be one standard to apply to all humans. Think about how strongly people feel about the definition of marriage. Should it include polygamy? Common law marriage? Same sex marriage? One way to get around this is to frame natural rights so that they can be interpreted according to local custom, "e.g., a right to a family life." This is what the United Nations has done in getting hundreds of countries to agree on a list of principles.
Of course, as stated, this is not the end of the matter. Problems still arise in balancing fundamental human rights against each other. What happens when my right to privacy is in conflict with your right to freedom of speech? A defamation law suit. Is my right more important than yours? And what principles should you use for interpretation? In fact, natural law has been used to support both liberal and conservative theories and many different kinds of ideologies. The Scandinavian Realist Alf Ross once said, "Like a harlot, natural law is at the disposal of everyone." This was what led the positivists to try to lay down strict definitions of law so that there would be less room for judicial interpretations based on individual judge's ideas of morality and propriety. However, after the atrocities of World War II, natural law had a revival that continues to this day. What we have in our legal system today is a hybrid of natural law and positivism -- the ideas which govern our society are codified and you can take them to Court.
The Social Contract Theories
At this point in our study of natural law, it is useful to have a brief introduction to the social contract theories. These go hand-in-hand with natural law and form much of the basis for what came later, even though some of the philosophers were not primarily concerned with law. The social contract theory is essentially that each citizen who seeks to reap the benefit of living in the State should be subject to the rules of the State.
Socrates
Socrates said that he had agreed to be bound by the laws of Athens and had reaped the benefits of this agreement. To that end, he felt he also had the burden of obeying the laws even if it meant willingly drinking poison after he had been condemned to death. He is considered the first of the social contractarians, and is one of the few to actually speak about signing the contract himself.
Hobbes
Hobbes felt that before humans signed the social contract, they lived in a state of nature, where life was "solitary, poor, nasty, brutish and short". He thought that there was perpetual war of all against all, with humans free to rape, pillage and murder. Eventually, humans came together and agreed that each would give up some of their rights in exchange for the others giving up those rights. For example, each would give up his right to kill. The peace would be kept by the government. Hobbes' idea of government was totalitarian -- any abuses by the government had to be accepted as the price of peace.
Locke
Locke, on the other hand, felt that life before the contract was absolute bliss -- a garden of Eden. But humans lived in a state of fear that others would take their life, liberty or property (where property is defined as the product of one's labour). Humans therefore formed the government to protect them. Instead of each having to protect himself, the government had the power to prosecute, judge and punish offenders. For Locke, governemnt had duty to treat citizens fairly, or else they were entitled to overthrow. Locke's philosophy was a major influence on Thomas Jefferson and the other framers of the American Constitution and Declaration of Independence.
Rousseau
Rousseau posited that there were certain human rights, but government could infringe on those rights so long as it represented the general will of the people. Rousseau was therefore a democrat (govt should represent the general will) and totalitarian (govt could do anything it wanted).
Rawls
Rawls is NOT a natural lawyer, and can be found instead under the section "Pure Theories of Law" in the Lloyds. However, his theory fits into this section. Rawls deals with the question of how one would know which laws were best. He envisions a group of people behind a veil of ignorance. Those people are charged with making law for a society. They know that after the veil is lifted, they will be living in that society, but they do not know who they will be. (It is like writing a program for the Enterprise holodeck and jumping into it without knowing what character you will be playing.) The group would come up with the best laws for all situations. For example, they would not come up with laws to favour the rich, since they might come out from the veil as poor. Similarly, it might not be best to create a welfare state since they might come out as rich! Ditto for laws relating to gender, religion and sexual orientation.
Natural Law
There is a good quote on page 90 of the Lloyds. "Natural law is the constant assertion that there are laws which depend on the nature of the universe and that these laws are discoverable by reason." With this in mind, let us move on to the natural law philosophers.
Grotius
We will just briefly mention Grotius first (even though he came after Aquinas). He is considered the father of secular natural law. He believed that natural law would be the same even if there was no God.
Note that he was not saying that there was no God. Rather, he was unhinging natural law from religion. He felt that where there was a law such as "do not kill", the reason for the law was not "Because God said so". Rather, there are good reasons for not killing which have nothing to do with religion.
Aqunias
Teleology is the philosophy that there are final causes. An acorn has as its final cause an oak -- it is meant to be an oak, not squirrel food or decoration. similarly, mankind is supposed to have a purpose, something that it would achieve if not hindered. In the same vein, some philosophers believe that you cannot understand a part without understanding a whole. [E.g., I hold up a pen cover. What is this? It makes no sense unless you know what a pen is.]
St. Thomas Aquinas was one who believed that mankind was supposed to have a purpose, and also that man was part of a societal whole.
He fit natural law into the context of church law. His theory is that God has a law for the universe -- lex aeterna. Man can understand and advance the part of this law that relates to man, the law for human flourishing -- lex naturalis. There is also law for human salvation as revealed in the scriptures -- lex divina. Finally, man must make laws for society to function and to solve day-to-day problems -- lex humana. This last is necessary because it is sometimes necessary to force selfish people to do what is right. Aquinas argues that unjust laws lose their power to bind, but in some cases should be ob d rather than risk civil disorder. [Corny joke for the day -- you will notice that he leaves one lex out of his list: Lex Luthor. :)]
Finnis
Finnis is one of the most influential modern day philosophers.
He attempts to take natural law back to what he saw Aristotle and Aquinas portraying, and in fact restates their theories.
He believes that natural law is the set of principles of practical reasonableness in ordering human life and human community. He sets up the proposition that there are certain basic goods for human beings, which he feels that every reasonable person will agree with: 1)Life, 2) Knowledge, 3) Play (peformance which has no point beyond the performance itself), 4) aesthetic experience (beauty), 5) sociability (friendship), 6) practical reasonableness, 7) religion (questions of cosmic order).
Practical reasonableness is being able to use one's own intelligence to choose actions, lifestyle and character. It has nine requirements: 1) active pursuit of goals, 2) coherent life plan, 3) no arbitrary preference among values, 4) no arbitrary preference among persons, 5) detachment and commitment, 6) efficiency within reason (the limited relevance of consequences), 7) respect for every basic value in every act, 8) requirements for the common good, 9) following one's conscience.
For Finnis, these goods relate to life in a community, and unjust laws lose their power to bind because they go against the common good.
Similarly, Finnis believes that human rights are a fundamental component of the common good, but that they are subject to or limited by each other, and by other aspects of the common good. His list of natural rights includes: 1) not to be tortured, 2) not to be lied to, 3) not to have one's life taken as means to any further end, 4) not to be condemned on knowingly false charges, 5) not to be deprived of one's capacity to procreate, and 6) the right to be taken into respectful consideration in any assessment of what the common good requires.
What are the criticisms of Finnis?
First: he argues that the list of basic goods is self-evident, but he is only able to show this for one of the goods -- knowledge. His argument is that it is impossible to argue that knowledge is bad, i.e.,: Assume you say that knowledge is not good (ignorance is bliss). How do you know? Because you have knowledge. Therefore knowledge is good.
However, Finnis is only able to do this for knowledge. He is not able to use similar reasoning to show why the other goods are "self-evident".
Second: is knowledge always good? Perhaps it needs to be put to good use.
Third: his lists leave open many questions. For example, if the law is "not to kill" or "not to kill the innocent", what does this mean for abortion? For capital punishment? For the execution of Bin Laden without a trial?
The is/ought criticism
Critics believe that by using "internal reasoning", natural lawyers obtain "ought" from "is". The critics say that natural lawyers reason as follows:
The critics say that this is false logic. Is this criticism justified? Do natural lawyers really reason this way? Think of all persons (whether natural lawyers or not) who say that contraceptions/abortions/homosexuality are bad because they are unnatural, they go against nature. Have they derived "ought" from "is"? What if they are missing information? What if in nature only the good-looking animals procreate? How about the fact that some animals are polygamous and others commit incest? Does this mean that humans should too? How do we know what laws are best for humanity?
Answering Essays
For every topic we study, we need to see how it plays out in our own Caribbean Constitutions. This is where you tie in the information you learned in Constitutional Law. Always remember, however, to keep your eye on the big picture. Accurately summarize the jurisprudence theory and any shortcomings, and then explain how it ties in to the Constitution or the case. Do not get carried away into the specifics -- I have seen students spending all their time explaining a particular case while missing important examinable points. And for goodness sake, do NOT simply go through the Bill of Rights and say "The Constitution defines a right to life and Finnis defines a right to life. The Constitution speaks about freedom from inhumane punishment, and Finnis speaks about freedom from inhumane punishment..." Also, whatever you do, do NOT say that our Constitutions are based on the theories of Finnis. All of our Constitutions use the American Constitution for a model. This was created long before Finnis was born in 1940!!!!
The Constitution
Look at the preamble of your Constitution. The Barbados Constitution states that a group of citizens, having settled the island and declared their independence from England, agreed on certain fundamental rights and freedoms. The preamble continues that the citizens affirm their belief in the rule of law. Sounds rather like Locke's theory. The fundamental rights and freedoms are enumerated in Chapter III. They are similar to the ones listed by Finnis. Your job is to compare how the rights work in Finnis's theory with how they work in our Caribbean cases. For example, are Finnis's rights absolute? He says that they are limited by other rights and by greater societal good. Are the rights absolute in our law? Is there an absolute right to life? How can we have a death penalty? Is this because it is necessary for the "greater societal good?" Give a brief description of how the Courts handled these issues in Boodram and Boyce, for example. How do the Courts balance the rights of one individual against those of another.
The Constitution describes the composition and function of the government. The government's side of the contract is to make laws which are as close as possible to natural law. Does this really happen? What happens when citizens feel that the government itself is violating their rights? Constitutions contain savings provisions which preserve pre-constitutional laws and which therefore have the power to contravene human rights (death penalty cases). On the other hand, the concept of judicial review permits citizens to apply to the Court to scrutinize government's laws and actions. How do these two themes play out in the natural law theories?
Natural Law and Natural Rights
Write an essay on the topic "What is the connection between Finnis and the natural rights provisions of the Caribbean Constitutions". (Past exam question)