Phl 347
Lecture 24: Natural Law Theory

Two Alternatives to Legal Positivism

• Legal Realism (Oliver Wendell Holmes, Jr., Jerome Frank)
• Natural Law Theory (Aristotle, Aquinas, Fuller)

Legal Realism

• There really are no legal rules. Appeals to rules are mere rationalizations of the decisions of judges made on extra-legal grounds.
• The discipline of law consists simply in predicting what judges will do. Law is a branch of sociology: studying patterns of behavior.

Natural Law Theory

• Positive law can be properly understood only by analyzing it as the concrete realization of the abstract principles and functions of natural law.
• Human beings are by nature political animals. Certain forms of social organization are essential to human existence. These essential forms constitute the natural law.

Three Versions of NLT

• Natural law is grounded in human nature, understood biologically. (Aristotle)
• Natural law is grounded in certain biological facts, but it is binding as law only because it is backed up by God's commands. (Late Scholasticism)
• The natural law consists of the axioms of practical reason, i.e., self-evident, quasi-logical truths about what is good and right. (Kant, Grisez, Finnis)

Weak vs. Strong NLT

Weak or Minimal NLT

• If a so-called "law" fails utterly to realize the principles of natural law (if it fundamentally contradicts natural law), then it is null and void, no law at all.
• However, natural law has no binding force in and of itself until it is enacted into positive law.

Strong or Maximal NLT

• Positive law has no validity when in conflict with natural law,
• but the natural law can in some cases be valid and binding in the absence of positive law.
  • For example, the prosecution of Nazi war criminals for "crimes against humanity".

Hart's critique, and an NLT response

• Hart assumes that, according to NLT, a positive law is a society's attempt to realize natural law. A failed attempt is still an attempt, so a positive law is still law, even if it contradicts natural law.
• Positive law is not merely the attempt to realize natural law, it is the realization of natural law, in part or in whole.

What is it to be a Law? (According to NLT)

To be an X, a thing must be capable of at least partially fulfilling the function of X.

• a severed hand is no longer a hand,
• a corpse is no longer a human body,
• a meaningless sentence is not really a sentence,
• an unjust law is not a law.

NLT and Anarchy

• John Austin argued that even weak NLT leads to anarchy.
• Does NLT encourage more lawlessness than LP?
  • LP denies that legal validity entails a moral obligation to obey the law.
  • Utilitarians recommend deciding whether to follow the law on a case by case basis, with reference to utility.
  • Aquinas argues that we should obey an unjust "law", unless doing so creates more harm than the damage we would do to the legal system by undermining public respect for it by defying it.
  • NLT actually gives more moral weight to following putative positive law than LP does.

Judges and the Enforcement of Unjust Statutes

• A judge following NLT can honestly set aside a statute that contradicts natural law, while still acting as a judge, applying the law.
• A judge following LP cannot do so. He has four options:
  • Enforce the unjust statute.
  • Openly disregard and defy the law.
  • Resign or recuse himself from the case.
  • Dishonestly adopt NLT to rationalize the decision to set aside the statute.

Natural Law and the American Constitution

• Ancient, medieval and common-law tradition recognized the propriety of "equitable construction": interpreting a statute so as to make it conform to natural principles of justice, even if this means setting aside its literal meaning.
• Did this tradition become incorporated into the unwritten constitution of the U.S.?

Aristotle on Equity and the Law

...all law is universal but about some things it is not possible to make a universal statement which shall be correct. In those cases, then, if it is necessary to speak universally but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error....

When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission -- to say what the legislator himself would have said had he been present, and would have put into his law had he known. And this is the nature of the equitable, a correction of law where it is defective owing to its universality. (NE, Bk. V, sec. 10)

Equitable Construction

• In the Middle Ages, this was broadened to include cases where the law was deficient by excessive particularity: extensive equitable construction.
• Hamilton: "Many things within the letter of the statute are not within its equity, and vice versa." (The Law Practice of A. Hamilton, Volume I, p. 357)

Early appeals to natural law by Supreme Court

• Chief Justice Chase, in Calder v. Bull (1798)
• Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87 (1810)

The purposes for which men enter into society will determine the nature and terms of the social compact. An Act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority....

It is against all reason and justice for a people to entrust a Legislature with such powers [as ex post facto laws, impairing contracts, making someone a judge in his own case]; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the Spirit of our State Governments, amount to a prohibition of such acts of legislation....[Legislatures] cannot change innocence into guilt, or punish innocence as a crime." (at 388)

"It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power ... the question, whether the act of transferring the property of an individual to the public, to be in the nature of the legislative power, is well worthy of serious reflection....

It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments."

Riggs v. Palmer, 115 NY 506 (1889)

• Elmer Palmer murdered his grandfather, who left Elmer the bulk of his estate in his will.
• The NY statutes provided no exception in the case of murderous heirs.
• NY Supreme Court ruled against Palmer, employing equitable construction of the statute.

Test Cases

• The Grudge Informers
• The Nuremberg Trials
• The Fugitive Slave Cases

| Philosophy Department | Prof. Koons | UT Austin Web Central