Anteneh.G
Chapter Three
Revival of NL
NL
was dominated by other theories like positivism but there were some
developments in 20th century which cause the revival of NL.
ü Nazi’s
atrocity
ü Vast
violations of natural rights
ü Development
of scientific inventions
The
Neo-Scholastic movement is a 20th century development of thought based on the
jurisprudential ideology associated primarily with St Thomas Aquinas. The effect of the movement on contemporary
jurisprudence has been to revive interest in the application of natural law
doctrine to life in our times.
ü Cavanaugh
– Dabin – Rommen – Le Fur – Renard –Maritain – Adler – Lucey
Neo-Scholasticism
comprises several philosophies founded upon medieval Scholasticism (an endeavor to discover ‘the whole of attainable
truth’ through Catholic doctrine). Particularly prominent within the
Neo-Scholastic school is Neo-Thomism
which, in relation to jurisprudence, is concerned
with the development and adaptation of the teachings on natural law enunciated
by St Thomas Aquinas.
ü He
had defined law as ‘an ordinance of reason for the common good made by him who
has the care of the community, and promulgated’, and considered ‘natural law’
to be derived from Divine law as revealed in man’s reason.
Two Prominent Neo-scholastics L. Fuller
and John Finnis
Fuller
1.
Morality of Aspiration and of Duty
Fuller
believed that morality has been for
long confused through a failure
adequately to distinguish between two
levels of morality--moralities of ‘aspiration’ and of ‘duty’.
A.
The morality of ‘duty’ - minimum standard which must be attained
ü It
lays down the basic rules without which
an ordered society is impossible, or without which an ordered society
directed toward certain specific goals must fail of its mark.
B.
The morality of ‘aspiration’ is a goal of excellence, or even perfection closely related to the platonic
ideal
ü The
morality of aspiration…is the morality of the Good Life, of excellence, of the fullest realization of human powers…Where
the morality of aspiration starts at the top
of human achievement, the morality of duty starts at the bottom.
According
to Fuller, the appropriate standard of
evaluation in the analysis of law, in terms of its claim to be ‘law’, is one of ‘duty’ rather than ‘aspiration’.
One may aspire to excellence but the standard
of ‘duty’ is the minimum required for
viable social order so that failure
to achieve it is not merely, in some sense or to some degree, a lapse but
is actually a wrong.
Fuller’s
analysis that it is not the business of
law to prescribe for excellence but rather to ensure the minimum baseline
ü But
this goes to the root of the question
which may be raised upon the claim of the theory
fully to fit into a naturalist context.
ü Rather
minimalist moral analysis
ü Law
cannot make people ‘good’ but rather
establish a base for the inhibition of
‘badness’ from which a good life may develop.
2.
Procedural NL
ü Early
conceptions by Radbruch
He
was originally been positivist- the validity of a law depends in no way on its
content.
The atrocity
of the Nazi regime makes him to conclude that
no law could be regarded as valid if it contravened with certain basic
principles of morality. He noted the way in which obedience to a posited law by the legal profession had assisted the
perpetration of the horrors of the Nazi regime. Thus the atrocity was due to:-
ü Failure
of a law to fulfill certain basic procedural principles
ü Blind
obedience
ü King
Rex Law
Rex
was hypothetical king, who determined to reform his country’s legal system,
ü Planed
to repeal all existing laws and replaced it,
ü He
found himself incapable of formulating the general principles necessary to
cover specific problems,
ü Decide
to litigate all disputes that arose by himself,
ü Heard
numerous cases, but no pattern was to be discerned,
ü Thus
he undertook a course of study on making generalizations and prepare a lengthy
document and made it a state secret,
ü The
people needed to know in advance the principles, thus he decide to publish laws,
ü Now
accessible however no part could be understood either by laymen or lawyers,
thus ordered experts to revise the code so as to leave the substance intact but
clarify the wording,
ü When
this was accomplished, the code was a mass of contradictions, each provision
being nullified by some other,
ü That
the code should be revised to remove the previous contradictions. The new code
was a masterpiece of draftsmanship.
ü However,
through time its provisions had been overtaken by events, thus amendments began
to be made daily,
ü Otherwise,
Rex resumed the sole judicial role,
ü But
with time, there was no link between Rex’s decisions and the provisions of the
code.
Based
on this, Fuller identified eight defects illustrated by Rex’s mistakes and has
put eight Law Making Criteria (inner
morality of law)
ü A
system of government that lacks what he terms ‘inner morality of law’ cannot
constitute a legal system, the system lacking the very characteristic –
order – that is a sine qua non of a legal system.
The Inner Morality of
Law------------eight qualities of excellence.
- Generality
(not made ad hoc or for temporary purpose only)
- Published
- Prospective,
not retroactive
- Intelligible
(clear or understandable)
- Consistent
- Capable
of being complied with
- Endure
without undue changes
- Applied
in the administration of the society
However,
the word ‘morality’ is misleading. As
we know the word in natural law camp, it carries
ethical connotations, yet none
are intended by Fuller.
ü According
to him morality is inner character of a legal system, without which a system
cannot properly be regarded as a legal system.
Fidelity
to law
ü Complementing
the concept of inner morality, duty to
obey only where the features that make up the inner morality of law are present.
Is Fuller a natural lawyer?
ü Imagine
a law that required all children of ten who were left-handed to be executed.
·
Under mainstream natural law thinking a
law is not a valid law if it conflicts with a higher moral code.
·
For Fuller a law is not valid if it
forms part of a purported legal system that fails to comply with a higher code, the code in Fuller’s case,
however, being one based not on ethical
values, but on values stemming from rationality and procedural accuracy.
ü Thus
we may conclude that Fuller is one leg
in natural and the other outside
·
validity by reference to an outside
standard……………Natural
·
the standard lacks ethical
connotations…………….Outside
Criticism on Fuller
Fuller……….Evil
aims lack ‘logic’ and ‘coherence’ that moral aims have. ‘Coherence’ of the laws
ensures their morality.
ü We could,
equally, have eight principles of the
‘inner morality’ of the poisoner’s art.
ü Consistency
is insufficient to establish the moral nature of such practices.
JOHN FINNIS……Substantive
NL
·
Unlike Fuller’s concept, John Finnis
falls unequivocally into the category of
naturalist theory.
·
Tried to resurrect the natural law
tradition
·
Tried to offer a "neo-Aquinian" natural law
philosophy which does not presuppose a
divine being. The
existence of God is only possible explanation
for the comparative order of that he seeks to project on human values, not the necessary reason.
1.
Finnis’ Defence of Naturalism
He
believes there are two cardinal misconceptions about the theory.
ü Finnis
denies that natural law derives from the
objectively determinable patterns of behaviour, but instead asserts it is ascertainable from inward knowledge
of innate motivations.
ü Natural
law does not entail the view that law is
not law if it contradicts morality.
The
truth about NL
·
NL principles are pre-moral
·
Not the product of logical deduction,
·
Nor are they merely passions verified with reference to something objectively
regarded as good.
·
No inference from fact to value(ought to is)
Finnis
views the law as involving:-
ü Rules made by ‘a determinate and
effective authority’ for a ‘complete community’,
strengthened by appropriate sanctions,
and directed at the reasonable resolution of the community’s problems of
co-ordination.
ü Law
is a means to an end: its end is ‘the community’s good’
The common
good is defined by Finnis as ‘a set of conditions
which enables members of a community to attain for themselves reasonable objectives.
2.
The Basic Goods of Human Nature
Finnis’
central thesis consists of two major propositions.
First: there are certain ‘human goods’, that is, basic values of human existence, that are self-evident, and that can be secured only through the law.
Secondly:
these goods may be achieved through ‘practical
reasonableness’, and this, too, necessitates
law.
·
The ‘Practical reasonableness’ involves
a use of the word ‘practical’ in an Aristotelian sense, as meaning ‘with a view to decision and action’; it
is an aspect of ‘human flourishing’.
Based
on the consistent behavior of human kind
he isolates what he calls seven
"basic goods" in life,
·
Goods those are fundamental, underived from other goods and irreducible to other things
that are the motivation and goal of action.
Finnis’
seven basic goods are generally the following:
·
Life,
·
Knowledge,
·
Play, in essence the capacity for
recreational experience and enjoyment
·
Aesthetic experience…..capacity to
experience and relate to some perception
of beauty.
·
Sociability or friendship,
·
Practical reasonableness,
·
Religion, not limited to religion in the
formal sense of faith…..to a sense of the responsibility
of human beings to some greater order than that of their own individuality.
ü Therefore
the goods that Finnis speaks of are not
moral goods; they are necessary
objects of human striving.
ü They are self-evident
ü Theses
goods are subjective so far as they require no justification from the outside
world
ü But
are really objective since all human must assent to their value due to these
are the result of innate (inborn) knowledge.
Although
there may be innumerable forms of human goods, Finnis claims that those outside
his list are merely ways, or combinations
of ways, of attaining any of the seven enumerated.
Critics
Ø The
list of ‘human goods’ may be no more than a subjective addition to the long list of similar catalogues,
Ø Some of the goods might be rejected
as desirable ends by some sections of the community.
Ø Some
of Finnis’ categories are presented in wide and imprecise terms, making their significance difficult to grasp. ‘Knowledge’
Ø The
problem of the ‘self-evident nature’
of the ‘human goods’ is an obstacle
for those jurists who search for a
rationale behind the catalogue. For the individual’s duty to seek
continuously for verification of theories.
Ø Finnis’
view of the law in terms of what it
achieves, rather than what it is,
has been considered less than helpful. It suggests a mere instrumental view of law and fails to examine the question – vital for
advocates of the natural law – of the
fundamental significance of law in our society.
However,
he has provide a shelter for NL from the wind of moral relativism – an
accomplishment.
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