Natural Law jurisprudence automatically lends
Natural law has become quite diverse foci for theories concerning human conduct, not only placing diverse requirements on the theorist, but requirements which appear to be at cross purposes. Natural law can be kept for an important, but narrow problem: the enunciation of some basic human goods or needs that any system of positive law should respect, promote, or in any case protect (William Blackstone, 1979).
Theorizing concerning natural law and virtue, therefore, can be sharply famed for reasons.
On the whole, for the reason of the demise of the older teleological view of nature that allowed theorists like Aquinas to correlate the analogous meanings of law and nature around the matter of natural inclinations. These inclinations, on Aquinas’ view, are the soil for both virtues and the first principle of the natural law. The reason of law as well as the nurturing of the habits takes their bearing from a pre-given teleological order.
Aquinas comes as near as he ever comes to a description of law in the claim that ‘Law is nothing else than an ordinance of reason for the common good, made by him who has the care of the community, and promulgated’ (Thomas Aquinas, 1988). This general definition is followed by a peculiarity between the three kinds of law–eternal, natural, and human. Now, it might seem that on its own Aquinas’s categorization as applied to the specific case of human law would produce an essentially positivistic view of human law.
We can obviously understand God as having care of the ideal community, and as propagating ordinances of reason for the common good of that community.
We can make sense of the thought (even if we reject it) that ‘Nature’ likewise works for the ‘common good’ of only ‘natural’ things, a standard teleological theory of biology might assert something like that. But, it can be said, the obvious way to understand the description in the case of human law is in terms of a ruler, or whoever is designated as lawmaker by the rule of respect, promulgating laws in terms of the lawmaker’s discernment of the good of the community.
As Aquinas said, “Human laws should be proportionate to the common good” (Thomas Aquinas, 1988, Q. 96 A. 1).
‘Nature’ designates not simply the quiddities of things, the formal cause that which makes a thing what it is but more significantly the finality governing completions. Right reason, on the conventional teleological view of natural law, cannot mean simply judgment agreed with natural values, but judgment in accord with what completes these values. As the older teleological theories allowed natural law analysis to play both roles–to expound the goods embedded in human actions as well as their completions-the modern denunciation of teleological thinking guarantees that a natural law principle of recta ratio should restrict itself to discourse concerning natural goods or values (Joel Feinberg, 1986).
Natural law theory in its traditional form was entwined with the realist metaphysics of customary natural philosophy. It sought to give a kind of correspondence to the real that would explicate what makes moral sentences true. The idea seemed reasonable so long as natural philosophy conceived of the universe in a moralized, teleological fashion.
But while the teleological cosmos gave way to the distant and infinite universe of modern science, scientific and ethical realism leaned to break apart, and ethical theorists disposed toward realism had to work hard at finding something properly real and natural for moral sentences to correspond to. In this context, scientific realists frequently looked upon their ethical counterparts with distrust, and diverse forms of anti-realism were anticipated for ethics. The new plausibility of anti-realism in ethical theory resultant from the sense that the world, as presently understood, was capable to do something for scientific sentences that it was incapable to do for moral sentences that is, make them true.
Several theorists decided that something less cosmological, something having to do with human nature or realistic reason or collective inter subjectivity, would have to be substituted for the customary correspondence relation if the idea of moral truth was to be retained. Some of the resultant programmes, called themselves natural law theories, but they were hardly of the traditional kind. Ethical anti-realists including both scientific realists and empiricists–began arguing with one another over whether the idea of moral truth must be redefined or dropped altogether.
There arose new forms of ethical pragmatism (such as intuitionism, utilitarianism, and value theory) to start the third side of the triangular debate. Meanwhile, traditional natural law theory became ever more nostalgic in tone and idealistic in performance. It was treated more and more frivolously by the anti-realist opposition as an exemplification of some moderately obvious fallacy and by its realist successors as an appealing relic from a pre-scientific age.
It is high time for moral philosophy to reorganize its relation to the philosophy of science. If Fine (an imminent philosopher)and others like him have appropriately diagnosed the debates over fact endemic to the latter, and the recognizable philosophical pictures of science deserve rejection, then those pictures can no longer give out as fixed points of assessment and contrast for the analysis of moral discourse. Doubts of the form, ‘But what could there be for moral sentences to correspond to?’ and ‘What would it be to examine that murder is wrong?’ lose an implication they once had.
If philosophers of science follow Fine’s advice and stop asking the issue of what sort of relation to a special something makes a set sentence true, the old reasons for wondering what on earth (or in heaven) could make a moral sentence true will disintegrate. And in their absence, the normal language user’s disposition to say ‘It’s true that murder is wrong’ will seem entirely in order–which is to say, neither metaphysically tainted by philosophical pragmatism nor in require of being taken at something other than face value.
The natural ontological attitude is to take science and its feature uses of ‘true’ at face value, without the overlie of philosophical interpretation provided by something grander than evocative anthropology. This attitude promises to fall apart the triangular debate in which natural law theory participates and to reinstate moral discourse to respectability. The threat of adverse contrasts with science disappears–and together with it the rationale for viewing natural law theory as a courtly knight defending the honor of morality against its profligate modern detractors. Indeed, the line of demarcation between science and ethics begins to disappear.
Thus the natural ontological attitude is fundamentally at odds with the temperament that looks for explicit boundaries demarcating science from pseudoscience, or that is liable to award the title “scientific” like a blue ribbon on a prize goat’ (Arthur Fine, 1986). While Fine’s attitude is applied to ethics, it leans not only to restore one’s confidence in moral truth but also to recuperate the thought that moral and scientific truth are inseparably entwined.
Not as the teleological cosmos has been reconstituted. One reason is that when we try to abstain from big pictures and instead try to make sense of science in the grained way, it will become not viable to avoid evaluating the human purposes, virtues, communities, and social consequences that form in the stories of scientific endeavors.
Another reason is that it once all over again becomes natural to divulge that moral truths depend (though not in the systemic and deductive way natural lawyers have at times claimed) on what the world and human beings are indeed like. If it were not true, for example, that members of our species have a inclination to bleed and experience pain when cut, definite acts that is cruel and ferocious would not be. If firing nuclear missiles caused no more damage than a large grenade, numerous sentences belonging to the ethics of war would change truth values. Counterfactuals like these conserve what is worth saving from the natural law principle of the ordo quem ratio non-facit (Russell Hittinger, 1889).
Thus, we can say that natural law jurisprudence routinely lends itself to the teleological approach as it relies considerably on institutional moral reasoning. Moral reasoning is concerning the evaluation and development of existing institutions requires that we recognize the goals the institutions are to serve. Institutions are human creations that must to serve human purposes, and they can be made more effectual in serving those purposes by changes that human beings can make (Martin Dixon & Robert McCorquodale, 1986).
Though institutions usually are not formed deliberately, once we assume to evaluate them morally we come to consider them as if they were relics designed to achieve certain goals. To the degree that moral reasoning concerning institutions is guided by the goals the institutions in question are to provide, institutional reasoning may be called teleological. For instance, we appraise institutions of criminal justice in part by seeing how well they attain the goal of deterrence.
But to say that a goal of the criminal justice system is anticipation is hardly informative unless we know what kind of behavior we are trying to deter. At least for generally liberal theories, the goal of protecting individual rights plays a main role in determining what kind of behavior to try to deter. So underlining that institutional reasoning should be teleological in the sense of being concerned with goals is not contrary with taking rights seriously.
Natural law takes rights fatally is therefore teleological in the sense that it regards the protection of rights as placing restrictions on efforts to exploit the achievement of even the most commendable goals (Martin Dixon , 1993).
The natural law of an existing or proposed institution needs evaluating the rules that partly comprise the institution (DJ Harris, 1991). These rules set patterns of behavior to be followed by many individuals as they interrelate over time. To find out whether the institution is in fact supporting the achievement of its goals, it is therefore essential to consider both the collective effects of large numbers of people acting on a particular rule and the interactions of the cumulative effects of conformity with the other rules the institution includes.
For this reason natural law needs attention to incentives. Certain combination of rules, each of which can seem appropriate when measured in isolation, may create incentives that prevent institutional goals. At a minimum, rules must not be self-defeating in this way. Rules that give incentives that are not only consistent with, but actually promote, behavior that puts in to the attainment of institutional goals are preferable to those that do not, other things being one and the same.
- Arthur Fine, The Shaky Game: Einstein, Realism and the Quantum Theory ( Chicago: University of Chicago Press, 1986)
- DJ Harris, Cases and Materials on International Law Fourth Edition, (London: Sweet and Maxwell, 1991).
- Joel Feinberg, Harm to Self (New York: Oxford University Press, 1986), pp. 87–94
- Martin Dixon & Robert McCorquodale, Cases and Materials on International Law (4th ed., Oxford; New York: Oxford University Press/Blackstone Press, 2003).
- Martin Dixon, Textbook on International Law, 2nd ed. (London: Blackstone Press, 1993).
- Russell Hittinger, “‘Varieties of Minimalist Natural Law'”, American Journal of Jurisprudence, 34 (1989).
- Sir William Blackstone, Commentaries on the Laws of England, (Chicago, Ill.: University of Chicago Press, 1979).
- Thomas Aquinas, On Law, Morality and Politics (Indianapolis, 1988), Q. 90 A. 4.