Natural Law and Natural Rights
John Finnis
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II.1 Images and Objections
What are principles of natural law? The sense that the phrase ‘natural law’ has in this book can be indicated in the following rather bald assertions, formulations which will seem perhaps empty or question-begging until explicated in Part Two: There is (i) a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realized, and which are in one way or another used by everyone who considers what to do, however unsound his conclusions; and (ii) a set of basic methodological requirements of practical reasonableness (itself one of the basic forms of human flourishing) which distinguish sound from unsound practical thinking and which, when all brought to bear, provide the criteria for distinguishing between acts that (always or in particular circumstances) are reasonable-all-things-considered (and not merely, relative-to-a-particular purpose) and acts that are unreasonable-all-things-considered, i.e. between ways of acting that are morally right or morally wrong – thus enabling one to formulate (iii) a set of general moral standards.
To avoid misunderstandings about the scope of our subject-matter in this book, I should add here that the principles of natural law, thus understood, are traced out not only in moral philosophy or ethics and ‘individual’ conduct, but also in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen. For those principles justify the exercise of authority in community. They require, too, that that authority be exercised, in most circumstances, according to the manner conveniently labelled the Rule of Law, and with due respect for the human rights which embody the requirements of justice, and for the purpose or promoting a common good in which such respect for rights is a component. More particularly, the principles of natural law explain the
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obligatory force (in the fullest sense of ‘obligation’) of positive laws, even when those laws cannot be deduced from those principles. And attention to the principles, in the context of these explanations of law and legal obligation, justifies regarding certain positive laws as radically defective, precisely as laws, for want of conformity to those principles.
My present purpose, however, is not to anticipate later chapters, but to make some preliminary clarifications. A first essential distinction is that between a theory, doctrine, or account and the subject-matter of that theory, doctrine, or account. There can be a history of theories, doctrines, and accounts of matters that have no history. And principles of natural law, in the sense formulated in the two preceding paragraphs, have no history.
Since I have yet to show that there are indeed any principles of natural law, let me put the point conditionally. Principles of this sort would hold good, as principles, however extensively they were overlooked, misapplied, or defied in practical thinking, and however little they were recognized by those who reflectively theorize about human thinking. That is to say, they would ‘hold good’ just as the mathematical principles of accounting ‘hold good’ even when, as in the medieval banking community, they are unknown or misunderstood. So there could be a history of the varying extent to which they have been used by people explicitly or implicitly, to regulate their personal activities. And there could be a history of the varying extent to which reflective theorists have acknowledged the sets of principles as valid or ‘holding good’. And there could be a history of the popularity of the various theories offered to explain the place of those principles in the whole scheme of things. But of natural law itself there could, strictly speaking, be no history.
Natural law could not rise, decline, be revived, or stage ‘eternal returns’. It could not have historical achievements to its credit. It could not be held responsible for disasters of the human spirit or atrocities of human practice.
But there is a history of the opinions or set of opinions, theories, and doctrines which assert that there are principles of natural law, a history of origins, rises, declines and falls, revivals and achievements, and of historical responsibilities. Anyone
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who thinks there really are no such principles will consider that a book about natural law must be a book about mere opinions, and that the principal interest of those opinions is their historical causes and effects. But anyone who considers that there are principles of natural law, in the sense already outlined, ought to see the importance of maintaining a distinction between discourse about natural law and discourse about a doctrine or doctrines of natural law. Unhappily, people often fail to maintain the distinction.
This is a book about natural law. It expounds or sets out a theory of natural law but is not about that theory. Nor is it about other theories. It refers to other theories only to illuminate the theory expounded here, or to explain why some truths about natural law have at various times and in various ways been overlooked or obscured. The book does not enter into discussions about whether natural law doctrines have exerted a conservative or radical influence on Western politics, or about the supposed psychological (infantile) origins of such doctrines, or about the claim that some or all specific natural law doctrines are asserted hypocritically, arrogantly, or as a disguise or vehicle for expressions of ecclesiastical faith. For none of these discussions has any real bearing on the question whether there is a natural law and, if so, what its content is. Equally irrelevant to that question is the claim that disbelief in natural law yields bitter fruit. Nothing in this book is to be interpreted as either advancing or denying such claims; the book simply prescinds from all such matters.
II.2 Legal Validity and Morality
The preceding section treated theories of natural law as theories of the rational foundations for moral judgment, and this
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will be the primary focus of subsequent sections of this chapter. But in the present section I consider the more restricted and juristic understanding of ‘natural law’ and ‘natural law doctrine(s)’.
Here we have to deal with the image of natural law entertained by jurists such as Kelsen, Hart, and Raz. This image should be reproduced in their own words, since they themselves scarcely identify, let alone quote from, any particular theorist as defending the view that they describe as the view of natural law doctrine. Joseph Raz usefully summarizes and adopts Kelsen’s version of this image:
Kelsen correctly points out that according to natural law theories there is no specific notion of legal validity. The Only concept of validity is validity according to natural law, i.e., moral validity. Natural lawyers can only judge a law as morally valid, that is, just or morally invalid, i.e., wrong. They cannot say of a law that it is legally valid but morally wrong. If it is wrong and unjust, it is also invalid in the only sense of validity they recognise.
In his own terms, Raz later defines ‘Natural Law theorists’ as ‘those philosophers who think it a criterion of adequacy for theories of law that they show… that it is a necessary truth that every law has moral worth.
For my part, I know of no philosopher who fits, or fitted, such a description, or who would be committed to trying to defend that sort of theoretical or meta-theoretical proposal. Sections IX.2, X.2, X.5, X.6, XI.4, XII.3, and XII.4, below, are devoted to correcting this image. Suffice it here to say that the root of the misunderstanding seems to be the failure of the modern critics to interpret the texts of natural law theorists in accordance with the principles of definition which those theorists have, for the most part, consistently and self-consciously used. I have already given a sketch of those
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principles in section I.3, under the rubric ‘central cases and focal meanings’.
The image of natural law theory which we have justbeen dealing with is closely related, in the mind of Kelsen, with another image. For Kelsen says it is a ‘cardinal point of the historical doctrine of natural law… over two thousand years’ that it attempts ‘to found positive law upon a natural law delegation’. So far, so good though the formulation is not classical). But Kelsen regards the attempt as ‘logically impossible’, on the ground that such a delegation would entail ascribing legal validity to norms not because of their justice but because of their origination by the delegate; and this in turn would entail, he says, that the delegate could override and ‘replace’ the natural law, ‘in view of the fact that positive law is not, on principle, subject to limitations of… its.. material validity’. The non sequitur is Kelsen’s, I am afraid, and is not in his sources; the ‘principle’ to which he appeals is a mere petitio principii. If we may translate the relevant portion of, for example, Thomas Aquinas’s theory into Kelsenian terminology (as far as possible) it runs as follows: The legal validity (in the focal, moral sense of legal validity) of positive law is derived from its rational connection with (i.e. derivation from) natural law, and this connection holds good, normally, if and only if (i) the law originates in a way which is legally valid (in the specially restricted, purely legal sense of ‘legal validity’) and (ii) the law is not materially unjust either in its content or in relevant circumstances of its positing. Aquinas’s discussion of these points is under-elaborated, in relation to the modern jurisprudential debate: see XII.4, below. But it avoids the self-contradiction and/or vacuity of which Kelsen accuses it. To delegate is not to delegate unconditionally.
In view of the foregoing, it is not surprising to find Kelsen
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propagating another misleading, and not uncommon, image of natural law juristic theory:
The natural law teachers contend, in a version which has remained a stereotype from the church fathers down to Kant, that positive law derives its entire validity from natural law; it is essentially a mere emanation of natural law; the making of statutes or of decisions does not freely create, it merely reproduces the true law which is already somehow in existence…
Positive law, he says, is thus treated as a mere ‘copy’ of natural law. But all this is travesty. We may refer again to Thomas Aquinas – as always, not because there is any presumption that whatever he asserts is true, but simply because he is unquestionably a paradigm ‘natural law theorist’ and dominates the period ‘from the church fathers down to Kant’, by synthesizing his patristic and early medieval predecessors and by fixing the vocabulary and to some extent the doctrine of later scholastic and, therefore, early modern thought. Now Aquinas indeed asserts that positive law derives its validity from natural law; but in the very same breath he shows how it is not a mere emanation from or copy of natural law, and how the legislator enjoys all the creative freedom of an architect: the analogy is Aquinas’s. Aquinas thinks that positive law is needed for two reasons, of which one is that the natural law ‘already somehow in existence’ does not itself provide all or even most of the solutions to the co-ordination problems of communal life. On any reasonable view, Aquinas’s clear elaborations of these points (based on a hint from Aristotle) must be considered one of the more successful parts of his not always successful work on natural law. My own discussion of the relations between natural law and the content of positive law is principally in section X.7, below.
Finally we may note that the other of the two justifications for constructing a system of positive law to supplement the ‘natural’ requirements of morality, according to Aquinas (who
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gives this justification a perhaps excessive prominence), is the need for compulsion, to force selfish people to act reasonably. How strange, then to read Kelsen finding yet another ‘necessary contradiction between positive and natural law’, this time ‘because the one is a coercive order, while the other, ideally, is not only non-coercive, but actually has to forbid any coercion among men’. This, alas, is yet another distorted image; a sound theory of natural law is an attempt to express reflectively the requirements and ideals of practical reasonableness, not of idealism: see X.l. below.
II.3 The Variety of Human Opinions and Practices
H. L. A. Hart has said that ‘natural law theory in all its protean guises attempts to assert that human beings art equally devoted to and united in their conception of aims (the pursuit of knowledge, justice to their fellow men) other than that of survival. For my part, I know of no one who has ever asserted this. Certainly the classical theorists of natural law all took for granted, and often enough bluntly asserted, that human beings are not all equally devoted to the pursuit of knowledge or justice, and are far from united in their conception of what constitutes worthwhile knowledge or a demand of justice. There is much to be said for Leo Strauss’s judgment that ‘knowledge of the indefinitely large variety of notions of right and wrong is so far from being incompatible with the idea of natural right that it is the essential condition for the emergence of the idea: realization of the variety of notions of right is the incentive for the quest for natural right.’
Thomas Aquinas frequently tackled the question of the extent of human recognition of the natural law. When his remarks
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are taken together, it can be seen that he is working with a threefold categorization of the principles or precepts of natural law. First there are the most general (communissima) principles, which are ‘not so much precepts as, so to speak, the ends or point of the precepts’; they state the basic forms of human good; at least to the extent that they concern his own good, they are recognized by anyone who reaches the age of reason and who has enough experience to know what they refer to, and in this sense they ‘cannot, as general principles [in universali] be eliminated from the human heart’. This is the nearest Aquinas gets to making the assertion which Hart suggests is the core of natural law theorizing. It amounts to no more than saying that any sane person is capable of seeing that life, knowledge, fellowship, offspring, and a few other such basic aspects of human existence are, as such, good, i.e. worth having, leaving to one side all particular predicaments and implications, all assessments of relative importance, all moral demands, and in short, all questions of whether and how one is to devote oneself to these goods.
For, secondly, even the most elementary and easily recognizable moral implications of those first principles are capable of being obscured or distorted for particular people and, indeed, for whole cultures, by prejudice, oversight, convention, the sway of desire for particular gratifications, etc.; for example, many people (in Aquinas’s day, as now) think that morality touches only interpersonal relations and that ‘everyone is free to do what he will in those matters that concern only himself’, while others cannot see that they have any obligations to other people. And thirdly, there are many moral questions which can only be rightly answered by someone who is wise, and who considers them searchingly.
So when Hart objects that the conception of ‘the human end or good for man’ which was entertained by ‘the classical exponents’ of natural law was ‘complex’, ‘debatable’, and
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‘disputable’, the classical exponents would have replied that indeed it was complex, debated, and disputed, and that they had made rather extensive contributions to the debate. For the real problem of morality, and of the point or meaning of human existence, is not in discerning the basic aspects of human wellbeing, but in integrating those various aspects into the intelligent and reasonable commitments, projects, and actions that go to make up one or other of the many admirable forms of human life. And by no means everybody can see these thisteadily and whole, let alone put them into practice. The fact that there is controversy is not an argument against one side in that controversy .A genuine requirement of practical reasonableness is not the less a part of natural law (to use the classical phrase) just because it is not universally recognized or is actively disputed.
Julius Stone discerned three ‘decisive issues between positivists and natural lawyers’, and one of the them was: ‘Are [natural lawyers] entitled to claim that what they assert as self-evident must be recognized as self-evident by all?’ The formulation of the issue is confused: the pertinent claim would be ‘that what they assert to be self-evident is [or should be?] recognized as true by all’. For the important thing about a self-evident proposition is that people (with the relevant experience, and understanding of terms) assent to it without needing the proof of argument; it matters not at all whether they further recognize it as belonging to the relatively sophisticated philosophical category, ‘self-evident’. But even if we correct Stone’s formulation accordingly, it remains a non-issue, another imaginary image of natural law theory.
Near the very beginning of the tradition of theorizing about natural right, we find Aristotle quite explicit that ethics can only be usefully discussed with experienced and mature people, and that age is a necessary but not a sufficient condition for the required maturity. He does not explicitly
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ascribe self-evidence or indemonstrability or axiomatic status to any ethical or practical principles, though he treats certain things as beyond question: for example, that no one would wish to attain ‘happiness’ at the cost of losing his identity. Aquinas, on the other hand, has a discussion of self-evidence, if we translate propositio per je nota as ‘self-evident proposition’. But, pace Stone, Aquinas’s discussion begins by pointing out that while some propositions are self-evident to ‘everyone’ since everyone understands their terms, other propositions are self-evident only to ‘the wise’, since only the relatively wise (or learned) understand what they mean. He gives two examples of the latter sort of self-evident propositions from the field of speculative philosophy; one is that ‘a human being is a rational being’, and the other is that ‘a disembodied spirit does not occupy space’. He then proceeds to speak about the self-evident pre-moral principles which he later calls communissima, without, unfortunately, indicating which if any of them he thinks self-evident only to the relatively wise. An example, is perhaps, the principle ‘to know about God is a good’. For Aquinas denied that the existence of God is self-evident, even to the relatively wise, in this life.
It does seem to be the case that a good many of the principles of logic and mathematics employed in natural science and technology, and in historical and archaeological science, are such that it would be absurd to say that they either have been proved or are in need of proof. But what is certain is that the natural sciences and in general all theoretical disciplines rest implicitly on epistemic principles, or norms of theoretical rationality, which are undemonstrated, indemonstrable, but self-evident in a manner strongly analogous to the self-evidence ascribed by Aquinas to the basic principles of practical reasonableness: for an identification of some of these
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epistemic principles, see III.4 below; for a use of one of them, see XIII.2.
II.4 The Illicit Inference from Facts to Norms
Another of the three ‘decisive issues’ formulated by Stone was this: ‘Have the natural lawyers shown that they can derive ethical norms from facts?’ And the answer can be brisk: They have not, nor do they need to, nor did the classical exponents of the theory dream of attempting any such derivation.
This answer will doubtless give widespread dissatisfaction. For if it is correct, the most popular image of natural law has to be abandoned. The corresponding and most popular objection to all theories of natural law has to be abandoned, too, and the whole question of natural law thought through afresh by many.
Thus it is simply not true that ‘any form of a natural law theory of morals entails the belief that propositions about man’s duties and obligations can be inferred from propositions about his nature’. Nor is it true that for Aquinas ‘good and evil are concepts analysed and fixed in metaphysics before they are applied in morals’. On the contrary, Aquinas asserts as plainly as possible that the first principles of natural law, which specify the basic forms of good and evil and which can be adequately grasped by anyone of the age of reason (and not just by metaphysicians), are per se nota (self-evident) and indemonstrable. They are not inferred from speculative principles. They are not inferred from facts. They are not inferred from metaphysical propositions about human nature, or about the nature of good and evil, or about ‘the function of a human being’, nor are they inferred from a
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teleological conception of nature or any other conception of nature. They are not inferred or derived from anything. They are underived (though not innate). Principles of right and wrong too are derived from these first, pre-moral principles of practical reasonableness and not from any facts, whether metaphysical or otherwise. When discerning what is good to be pursued (prosequendum), intelligence is operating in a different way, yielding a different logic, from when it is discerning what is the case (historically scientifically, or metaphysically); but there is no good reason for asserting that the latter operations of intelligence are more rational than the former.
Of course, Aquinas would agree that ‘were man’s nature different, so would be his duties’. The basic forms of good grasped by practical understanding are what is good for human beings with the nature they have. Aquinas considers that practical reasoning begins not by understanding this nature from the outside, as it were, by way of psychological, anthropological, or metaphysical observations and judgments defining human nature, but by experiencing one’s nature, so to speak, from the inside, in the form of one’s inclinations. But again, there is no process of inference. One does not judge that ‘I have [or everybody has] an inclination to find out about things’ and then infer that therefore ‘knowledge is a good to be pursued’. Rather, by a simple act of non-inferential understanding one grasps that the object of the inclination which one experiences is an instance of a general form of good, for oneself (and others like one).
There are important objections to be made to Aquinas’s theory of natural law. O’Connor rightly identifies the main one: Aquinas fails to explain ‘just how the specific moral rules which we need to guide our conduct can be shown to be connected with allegedly self-evident principles’. But the objection that Aquinas’s account of natural law proposes an illicit inference from ‘is’ to ‘ought’ is quite unjustified.
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How can this objection have become so popular? There are a number of probable reasons, of which I may mention three. The first is that the very phrase ‘natural law’ can lead one to suppose that the norms referred to, in any theory of natural law, are based upon judgements about nature (human and/or otherwise). And the second reason is that this supposition is in fact substantially correct in relation to the Stoic theory of natural law (XII.2) and, as we shall shortly see, in relation to some Renaissance theories, including some that claimed the patronage of Thomas Aquinas and have been influential almost to the present day (II.6).
And thirdly, Aquinas himself was a writer not on ethics alone but on the whole of theology. He was keen to show the relationship between his ethics of natural law and his general theory of metaphysics and the world-order. He wished to point out the analogies running through the whole order of being. Thus human virtue is analogous to the ‘virtue’ that can be predicated of anything which is a fine specimen of thinof its nature in good shape, bene disposita secundum convenientiam suae naturae. So he is happy to say that human virtue, too, is in accordance with the nature of human beings, and human vice is contra naturam. If we stopped here, the charge against him would seem to be proved, or at least plausible (and certain later philosophical theologians would seem to have been justified in claiming his patronage). But in fact Aquinas takes good care to make his meaning, his order of explanatory priorities, quite clear. The criterion of conformity with or contrariety to human nature is reasonableness.
And so whatever is contrary to the order of reason is contrary to the
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nature of human beings as such; and what is reasonable is in accordance with human nature as such. The good of the human being is being in accord with reason, and human evil is being outside the order of reasonableness… So human virtue, which makes good both the human person and his works, is in accordance with human nature just in so far as [tantum… inquantum] it is in accordance with reason; and vice is contrary to human nature just in so far as it is contrary to the order of reasonableness.
In other words, for Aquinas, the way to discover what is morally right (virtue) and wrong (vice) is to ask, not what is in accordance with human nature, but what is reasonable. And this quest will eventually bring one back to the underived first principles of practical reasonableness, principles which make no reference at all to human nature, but only to human good. From end to end of his ethical discourses, the primary categories for Aquinas are the ‘good’ and the ‘reasonable’; the ‘natural’ is, from the point of view of his ethics, a speculative appendage added by way of metaphysical reflection, not a counter with which to advance either to or from the practical prima principia per se nota.
Since Aquinas’s Aristotelian distinction between ‘speculative’ and practical reason corresponds so neatly with the modern (but not only modern!) distinction which we (roughly!) indicate by contrasting ‘fact’ and ‘norm’ or ‘is’ and ‘ought’, it will be helpful to examine in greater depth the historical process by which the theory of natural law has come to be associated with a fundamental disregard of this distinction. To this examination the next two sections are devoted; they are, however, no more than an introduction to a much-needed investigation, still to be made.
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LAW
X.7 Derivation of ‘Positive’ from ‘Natural’ Law
‘In every law positive well made is somewhat of the law of reason…; and to discern… the law of reason from the law positive is very hard. And though it be hard yet it is much necessary in every moral doctrine, and in all laws made for the commonwealth.’ These words of the sixteenth-century English lawyer Christopher St. German express the fundamental concern of any sound ‘natural law theory’ of law: to understand the relationship(s) between the particular laws of particular societies and the permanently relevant principles of practical reasonableness.
Consider the law of murder. From the layman’s point of view this can be regarded as a directive not to intentionally kill (or attempt to kill) any human being, unless in self-defence… The legal rule, conceived from this viewpoint, corresponds rather closely to the requirement of practical reason, which would be such a requirement whether or not repeated or supported by the law of the land: that one is not to deliberately kill the innocent (in the relevant sense of ‘innocent’). Now this requirement is derived from the basic principle that human life is a good, in combination with the seventh of the nine basic requirements of practical reason (V.7). Hence Aquinas says that this sort of law is derived from natural law by a process analogous to deduction of demonstrative conclusions from general principles; and that such laws are not positive law only, but also have part of their ‘force’ from the natural law (i.e. from the basic principles of practical reasonableness). Hooker calls such laws ‘mixedly human’, arguing that their matter or normative content is the same as reason necessarily requires, and that they simply ratify the law of reason, adding to it only the additional constraining or binding force of the threat of
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punishment. Now Aquinas’s general idea here is fundamentally correct, but vaguely stated and seriously underdeveloped; and Hooker’s clarifications and developments are not in the most interesting direction.
True, some parts of a legal system commonly do, and certainly should, consist of rules and principles closely corresponding to requirements of practical reason which themselves are conclusions directly from the combination of a particular basic value (e.g. life) with one or more of those nine basic ‘methodological’ requirements of practical reasonableness. Discussion in courts and amongst lawyers and legislators will commonly, and reasonably, follow much the same course as a straightforward moral debate such as philosophers or theologians, knowing nothing of that time and place, might carry on. Moreover, the threat of sanctions is indeed, as Hooker remarks, an ‘expedient’ supplementation for the legislator to annex to the moral rule, with an eye to the recalcitrant and wayward in his own society.
But the process of receiving even such straightforward moral precepts into the legal system deserves closer attention. Notice, for example, that legislative draftsmen do not ordinarily draft laws in the form imagined by Aquinas: ‘There is not to be killing’ – nor even ‘Do not kill’, or ‘Killing is forbidden’, or ‘A person shall not [may not] kill’. Rather they will say ‘It shall be [or: is] an offence to…]’ or ‘Any person who kills… shall be guilty of an offence’. Indeed, it is quite possible to draft an entire legal system without using normative vocabulary at all. Now why does the professional draftsman prefer this indicative propositional form? At the deepest level it is because he has in his mind’s eye the pattern of a future social order, or of some aspect of such an order, and is attempting to reproduce that order (on the assumption, which need not be stated or indicated grammatically because it is contextually self-evident, that the participants are to, shall, must, may, etc., act conformably to the pattern). More particularly, a lawyer sees the
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desired future social order from a professionally structured viewpoint, as a stylized and manageable drama. In this drama, many characters situations, and actions known to common sense, sociology, and ethics are missing, while many other characters, relationships, and transactions known only or originally only to the lawyer are introduced. In the legally constructed version of social order there are not merely the ‘reasonable’ and ‘unreasonable’ acts which dominate the stage in an individual’s practical reasoning; rather, an unreasonable act, for example of killing, may be a crime (and one of several procedurally significant classes of offence) and/or a tort, and/or an act which effects automatic vacation or suspension of office or forfeiture of property, and/or an act which insurers and/or public officials may properly take into account in avoiding a contract or suspending a licence… etc. So it is the business of the draftsman to specify, precisely, into which of these costumes and relationships an act of killing-under-such-and-such-circumstances fits. That is why ‘No one may kill…’ is legally so defective a formulation.
Nor is all this of relevance only to professional lawyers. The existence of the legal rendering of social order makes a new train of practical reasoning possible, and necessary, for the law-abiding private citizen (see also XI.4). For example, the professionally drafted legislative provision, ‘It is an offence to kill’, contextually implies a normative direction to citizens. For there is a legal norm, so intrinsic to any legal ordering of community that it need never be enacted: criminal offences are not to be committed. Behind this norm the citizen need not go. Knowing the law of murder (at least in outline), he need consider the value of life or the requirement of practical reason that basic values be respected in every action. So Hooker is mistaken in suggesting that what the positive law on murder adds to the permanent rule of reason is merely the punitive sanction. As part of the law of the land concerning offences, it adds also, and more interestingly, (i) a precise elaboration of many other legal (and therefore social) consequences of the act and (ii) a distinct new motive for the law-abiding citizen who acts on the principle of avoiding legal offences as such to abstain from the stipulated class of action.
Thus, in a well-developed legal system, the integration of
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even an uncontroversial requirement of practical reasonableness into the law will not be a simple matter. The terms of the requirement qua requirement (e.g., in the case we were considering, the term ‘intentionally’) will have to be specified in language coherent with the language of other parts of the law. And then the part which the relevant acts are to play in the legal drama will have to be scripted – their role as, or in relation to, torts, contracts, testamentary dispositions, inheritances, tenures, benefits, matrimonial offences, proofs, immunities, licences, entitlements and forfeitures, offices and disqualifications, etc., etc.
Now very many of these legal implications and definitions will carry the legislator or judge beyond the point where he could regard himself as simply applying the intrinsic rule of reason, or even as deducing conclusions from it. Hence the legal project of applying a permanent requirement of practical reason will itself carry the legislator into the second of the two categories of human or positive law discerned by Aquinas and Hooker.
For, in Aquinas’s view, the law consists in part of rules which are ‘derived from natural law like conclusions deduced from general principles’, and for the rest of rules which are ‘derived from natural laws like implementations [determinationes] of general directives’. This notion of determinatio he explains on the analogy of architecture (or any other practical art) in which a general idea or ‘form’ (say, ‘house’, ‘door’, ‘door-knob’) has to be made determinate as this particular house, door, door-knob, with specifications which are certainly derived from and shaped by the general idea but which could have been more or less different in many (even in every!) particular dimension and aspect, and which therefore require of the artificer a multitude of choices. The (making of the) artefact is controlled but not fully determined by the basic idea (say, the client’s order) and until it is fully determinate the artefact is nonexistent or incomplete. To count as a door in a human habitation, an object must be more than half a metre high and need not be more than 2.5 metres, but no door will be built at all
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if the artificer cannot make up his mind on a particular height. Stressing, as it were, the artificer’s virtually complete freedom in reason to choose say 2.2 rather than 2.1 or 2.3 metres, Aquinas says that laws of this second sort have their force ‘wholly from human law’, and Hooker names his second category ‘merely human laws’.
These last formulae, so strongly emphasizing the legislator’s rational freedom of choice in such cases, can be misleading unless one bears in mind that they enunciate only a subordinate theorem within a general theory. The general theory is that, in Aquinas’s words, ‘every law laid down by men has the character of law just in so far as it is derived from the natural law’, or in St. German’s words, already quoted, ‘in every law positive well made is somewhat of the law of reason’. The compatibility between this theory and the subordinate theorem can be best understood by reference to one or two concrete examples.
A first example is hackneyed, but simple and clear. Consider the rule of the road. There is a sense in which (as the subordinate theorem implies) the rule of the road gets ‘all its force’ from the authoritative custom, enactment, or other determination which laid it down. For until the stipulation ‘drive on the left, and at less than 70 miles per hour was posited by one of these means, there was no legal rule of the road; moreover there was no need for the legislator to have a reason for choosing ‘left’ rather than ‘right’ or ’70’ rather than ’65’. But there is also a sense in which (as the general theory claims) the rule of the road gets ‘all its normative force’ ultimately from the permanent principles of practical reason (which require us to respect our own and others’ physical safety) in combination with non-posited facts such as that traffic is dangerous and can be made safer by orderly traffic flows and limitation of speed, that braking distances and human reaction times are such-and-such, etc.
A second example is richer. If material goods are to be used efficiently for human well-being (cf. V.6), there must normally be a regime of private property: VII.3. This regime will be
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constituted by rules assigning property rights in such goods, or many of them, to individuals or small groups. But precisely what rules should be laid down in order to constitute such a regime is not settled (‘determined’) by this general requirement of justice. Reasonable choice of such rules is to some extent guided by the circumstances of a particular society, and to some extent ‘arbitrary’. The rules adopted will thus for the most part be determinationes of the general requirement – derived from it but not entailed by it even in conjunction with a description of those particular circumstances: VII.4, 5, 7.
Moreover, in the vast area where the legislator is constructing determinationes rather than applying or ratifying determinate principles or rules of reason, there are relatively few points at which his choice can reasonably be regarded as ‘unfettered’ or ‘arbitrary’ (in the sense that it reasonably can be when one confronts two or more feasible alternatives which are in all respects equally satisfactory, or equally unsatisfactory, or incommensurably satisfactory/unsatisfactory). The basic legal norms of a law-abiding citizen are ‘Do not commit offences’, ‘abstain from torts’, ‘perform contracts’, ‘pay debts’, ‘discharge liabilities’, ‘fulfil obligations’, etc.; and, taking these norms for granted without stating them, the lawmaker defines offences (from murder to road-traffic offences), torts, the formation, incidents, and discharge of contracts, etc., etc. But this task of definition (and re-definition in the changing conditions of society) has its own principles, which are not the citizen’s. The reasonable legislator’s principles include the desiderata of the Rule of Law (X.4). But they also include a multitude of other substantive principles related, some very closely, others more remotely, some invariably and others contingently, to the basic principles and methodological requirements of practical reason.
What are these basic norms for the legislator? Normally they are not the subject of direct and systematic enquiry by lawyers. But it should be recalled that ‘legislator’ here, for convenience (and at the expense of some significant differentiations) includes any judiciary that, like the judge at common laws, enjoys a creative role. Now the principles that should guide the judge in his interpretation and application of both statutory and common or customary law to particular issues are the subject
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of scientific discussion by lawyers. These principles are almost all ‘second-order’, in that they concern the interpretation and application of other rules or principles whose existence they presuppose. They therefore are not directly the concern of legislators who have authority not merely to interpret and supplement but also to change and abolish existing rules and to introduce novel rules. Nevertheless, the second-order principles are themselves mostly crystallizations or versions (adapted to their second-order role) of ‘first-order’ principles which ought to guide even a ‘sovereign legislature’ in its acts of enactment. Moreover, a legislator who ignores a relefirst-order principle in his legislation is likely to find that his enactments are controlled, in their application by citizens, courts, and officials, by that principle in its second-order form, so that in the upshot the law on the particular subject will tend to turn out to be a determinatio of that principle (amongst others).
Many of the second-order principles or maxims employed by lawyers express the desirability of stability and predictability in the relations between one person and another, and between persons and things. Such maxims are obviously connected very closely not only with the formal features of law (X.3) and the desiderata of the Rule of Law (X.4) but also with the willingness of lawyers and indeed of men in society in every age to attribute authoritative force to usage, practice, custom (IX.3). And there is a corresponding first-order principle or set of principles to which any legislator ought to give considerable weight – that those human goods which are the fragile and cumulative achievements of past effort, investment, discipline, etc. are not to be treated lightly in the pursuit of future goods. More prosaically, the tangible expenses and waste of dislocative change are to be taken fully into account – the legislative choice between ‘drive on the left’ and ‘drive on the right’ is a matter of indifference in the abstract, but not in a society where by informal convention people already tend to drive on the left, and have adjusted their habits, their vehicle construction, road design, and street furniture accordingly.
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Starting with these second-order maxims favouring continuity in human affairs – i.e. favouring the good of diachronic order, as distinct from the good of a future end-state – we can trace a series of related second-order principles which include the principle of stability but more and more go beyond it to incorporate new principles or values. In each case these are available in first-order form to guide a legislator. Prose-form requires a linear exposition here which oversimplifies and disguises their interrelations: (i) compulsory acquisition of property rights to be compensated, in respect of damnum emergens (actual losses) if not of lucrum cessans (loss of expected profits), (ii) no liability for unintentional injury, without fault; (iii) no criminal liability without mens rea; (iv) estoppel (nemo contra factum proprium venire potest); (v) no judicial aid to one who pleads his own wrong (he who seeks equity must do equity); (vi) no aid to abuse of rights; (vii) fraud unravels everything; (viii) profits received without justification and at the expense of another must be restored; (ix) pacta sunt servanda (contracts are to be performed); (x) relative freedom to change existing patterns of legal relationships by agreement; (xi) in assessments of the legal effects of purported acts-in-the-law, the weak to be protected against their weaknesses; (xii) disputes not to be resolved without giving both sides an opportunity to be heard; (xiii) no one to be allowed to judge his own cause.
These ‘general principles of law’ are indeed principles. That is to say, they justify, rather than require, particular rules and determinations, and are qualified in their application to particular circumstances by other like principles. Moreover, any of them may on occasion be outweighed and overridden (which is not the same as violated, amended, or repealed) by other important components of the common good, other principles of justice. Nor is it to be forgotten that there are norms of justice that may never be overridden or outweighed, corresponding to the absolute rights of man (VIII.7). Still, the general principles of law which have been recited here do operate, over vast ranges of legislative determinationes, to modify the pursuit of particular social goods. And this modification need not be simply a matter of abstaining from certain courses of conduct: the principles which require compensation, or ascertainment of mens rea, or ‘natural justice’… can be adequately met only
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by the positive creation of complex administrative and judicial structures.
In sum: the derivation of law from the basic principles of practical reasoning has indeed the two principal modes identified and named by Aquinas; but these are not two streams flowing in separate channels. The central principle of the law of murder, of theft, of marriage, of contract… may be a straightforward application of universally valid requirements of reasonableness, but the effort to integrate these subject-matters into the Rule of Law will require of judge and legislator countless elaborations which in most instances partake of the second mode of derivation. This second mode, the sheer determinatio by more or less free authoritative choice, is itself not only linked with the basic principles by intelligible relationship to goals (such as traffic safety…) which are directly related to basic human goods, but also is controlled by wide-ranging formal and other structuring principles (in both first- and second-order form) which themselves are derived from the basic principles by the first mode of derivation.
In the preceding chapter (IX.l) I said that a principal source of the need for authority is the luxuriant variety of appropriate but competing choices of ‘means’ to ‘end’. Now we can see how this range of choices is both increased and controlled by the complex of interacting ‘principles of law’. True, the reasoning of those in authority frequently ends without identifying any uniquely reasonable decision; so the rulers must choose, and their choice (determinatio) determines what thereafter is uniquely just for those subject to their authority. But, having stressed that it is thus authority, not simply reasoning, that settles most practical questions in the life of a community, I now must stress the necessary rider. To be, itself, authoritative in the eyes of a reasonable man, a determinatio must be consistent with the basic requirements of practical reasonableness, though it need not necessarily or even usually be the determinatio he would himself have made had he had the opportunity; it need
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not even be one he would regard as ‘sensible’. Our jurisprudence therefore needs to be completed by a closer analysis of this authoritativeness or ‘binding force’ of positive law (XI), and by some consideration of the significance of wrongful exercises of authority (XII).
It may, however, be helpful to conclude the present discussion by reverting to the textbook categories, ‘[positive] law’, ‘sources of law’, ‘morality’. The tradition of ‘natural law’ theorizing is not characterized by any particular answer to the questions: ‘Is every “settled” legal rule and legal solution settled by appeal exclusively to “positive” sources such as statute, precedent, and custom? Or is the “correctness” of some judicial decisions determinable only by appeal to some “moral” (“extralegal”) norm? And are the boundaries between the settled and the unsettled law, or between the correct, the eligible, and the incorrect judicial decision determinable by reference only to positive sources or legal rules?’ The tradition of natural law theorizing is not concerned to minimize the range and determinacy of positive law or the general sufficiency of positive sources as solvents of legal problems.
Rather, the concern of the tradition, as of this chapter, has been to show that the act of ‘positing’ law (whether judicially or legislatively or otherwise) is an act which can and should be guided by ‘moral’ principles and rules; that those moral norms are a matter of objective reasonableness, not of whim, convention, or mere ‘decision’; and that those same moral norms justify (a) the very institution of positive law, (b) the main institutions, techniques, and modalities within that tradition (e.g. separation of powers), and (c) the main institutions regulated and sustained by law (e.g. government, contract, property, marriage, and criminal liability). What truly characterizes the tradition is that it is not content merely to observe the historical or sociological fact that’morality’ thus affects ‘law’, but instead seeks to determine what the requirements of practical reasonableness really are, so as to afford a rational basis for the activities of legislators, judges, and citizens.