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A comparison of the actions of two greek rulers to divine law

How and why can law, and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it? The sense and force of these questions, and the main features of the kind of answer given by natural law theories, can be given a preliminary indication. On the other hand again cf. Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so, both in settling the content of its rules and principles and in the procedures and institutions by which they make and administer it.

Natural law theories all understand law as a remedy against the great evils of, on the one side anarchy lawlessnessand on the other side tyranny. And one of tyranny's characteristic forms is the co-optation of law as a mask for fundamentally lawless decisions cloaked in the forms of law and legality.

The intrinsic desirability of such states of affairs as one's flourishing in life and health, in knowledge and in friendly relations with others, is articulated in foundational, underived principles of practical reasoning reasoning towards choice and action. Such high-level but far from contentless moral principles can be given further specificity in two ways 1 by identifying what, given some broadly stable features of human reality, they entail see 1.

Political communities are a kind of institution whose rational status as a normally desirable and obligatory objective of and context for collaborative action and forbearance can easily be seen to be entailed by the foundational practical and moral principles.

Natural Law Theories

In such communities, the normal means for making the needed determinationes is the institution of governmental authority acting in the first instance through legislation and other forms of law-making, i.

The political-theoretical part of natural law theory explains and elaborates the grounds and proper forms of governmental authority. It explains the similarities and differences between the practical authority of rulers including democratic electors acting as selectors of representatives or as plebiscitary decision-makers and the theoretical authority of experts and persons of sound judgment.

It shows the grounds for instituting and accepting practical authority as an almost invariably necessary means for preventing forms of harm and neglect which, because contrary to the high-level moral principles at least as they bear on relationships between personsinvolve injustice. Political theory subsumes, as one of its branches, legal theory. Moreover, he employs, through all his works, a methodological axiom: X's nature is understood by understanding X's capacities, which are understood by understanding their act[uation]s, which are understood by understanding their objects.

But the objects of chosen acts are the intelligible intrinsic goods aspects of human flourishing which we are directed to by practical reason's first principles. Knowledge of the factual possibility of say acquiring knowledge, or of losing or saving life, is a datum not really a premise for the understanding that such a possibility is also an opportunity—that actualizing the possibility would be good for oneself and others. Lewis 2006 and most foundational e.

Ancient Greek Philosophy

In such a state of affairs, the more strong, cunning and ruthless prey on the less, education of children which calls for resources outside the family is difficult to accomplish, and economic activity remains stunted by the insecurity of holdings and the unreliability of undertakings. There is evident need for persons who will articulate and enforce standards of conduct which will tend to promote the common good of bodily security, stable access to resources, cooperation in economic and educational activities, and rectification by punishment, compensation and restitution of at least the grosser inter-personal injuries of commission and neglect.

To articulate that need is to state the reasons for instituting and supporting political authority, notably state government and law, on condition that these institutions carry on their legislative, executive and judicial activities substantially for the common good of the inhabitants of the relevant territory, rather than in the interests of a segment of the population unfairly indifferent or hostile to the interests and wellbeing of other segments.

He takes his arguments to suggest the answer that in almost all societies, on almost all occasions and issues, it is preferable that government be by or in accordance with law, since i laws are products of reason s not passion sii the sovereignty of a ruler or assembly tends to tyranny i. So for Aristotle, the central case of practical authority is government of a polis by law and legally regulated rulers. Thomas Aquinas' account of human positive law treats the central case of government as the self-government of a free people by the rulers and institutions which that people has appointed for that purpose, and the central case of law is the co-ordination of willing subjects by law which, by its public character promulgationclarity, generality, stability and practicability, treats those subjects as partners in public reason Summa Theologiae I-II q.

He shows that these hang together as a set of desiderata or requirements because they are implications or specifications of the aspiration and duty to treat people as presumptively entitled—as a matter of fairness and justice—to be ruled as free persons, fundamentally the equals of their rulers, not puppets or pawns to be managed and kept in order by manipulation, uncertainty, fear, etc. The normal result of such fairness in the procedures of making and maintaining the law will be to strengthen the law's efficacy, too.

Unfortunately, the surface of Fuller's text gives more prominence to effectiveness than to fairness, and many critics e. This thesis has been elaborated more carefully and on a different basis by Raz 1979 and Kramer 2004a and 2004b: It is like a sharp knife, whose sharpness makes it apt for life-saving surgery but equally for stealthy callous murders Raz 1979, 224—6. Finnis 1980 273—4 and Simmonds 2004, 2005, 2006, 2007 have challenged the quasi-empirical claim that even vicious tyrants need or find it apt, for the efficacy of their domination, to comply with the requirements of the rule of law.

The eighth of Fuller's elements of the rule of law, viz. If the rulers somewhere do not respect the rights and interests of some of their subjects in relation to issues of substance life, bodily security, freedom, property, and so forthwhy should the rulers—what reason have they to—respect their subjects' rights or interests in the matters of procedure involved in the rule of law giving them fair notice of what is expected of them, and adhering as rulers to the promulgated law when assessing these subjects' conduct and in other governmental dealings with those subjects?

A more or less inconsistent willingness of rulers to tie their own hands by scrupulous adherence to procedural justice while yet being substantively unjust, is of course psychologically possible. But Fuller's primary concern, like that of the wider tradition of natural law theory, is with rationality and the specific implication of fully coherent reasonableness: And indeed there is no sufficient reason to follow him in restricting the range of practical-theoretical reflection on what is needed for a political society worthy of the self-restraints and acceptance of responsibilities that the law requires of those to whom it applies.

For it is clear that the procedures and institutions of law are in the service of substantive purposes: That portion of our positive law which consists of legal principles or rules giving effect to purposes such as those just listed was often named, by natural law theories, ius [or jus] gentium.

Minted by jurists of classical Roman law such as Gaius a comparison of the actions of two greek rulers to divine law. The reason for their ubiquity is, generally speaking, that any reasonable consideration of what it takes for individuals, families and other associations to live together in political society, tolerably well, will identify these principles and rules as necessary.

In the common law tradition, the legal wrongs picked out by such principles have been called mala in se, as distinct from mala prohibita—things a comparison of the actions of two greek rulers to divine law in themselves as distinct from things wrong only because prohibited by positive law—and this distinction remains, for good reason, in use in judicial reasoning.

Hart 1961 can be so read. But even Hart's account, on closer examination, identifies the relevant necessity not as conceptual or linguistic but as an instance of the rational necessity of means needed to secure purposes which are non-optional. These issues are discussed further in Section 3 below. His explanation, slightly updated: The kind of rational connection that holds even where the architect has wide freedom to choose amongst indefinitely many alternatives is called by Aquinas a determinatio of principle s —a kind of concretization of the general, a particularization yoking the rational necessity of the principle with a freedom of the law-maker to choose between alternative concretizations, a freedom which includes even elements of in a benign sense arbitrariness.

Once the determinatio is validly made, fulfilling the criteria of validity provided by or under the relevant legal system's constitutional law, it changes the pre-existing state of the law by introducing a new or amended legal rule and proposition s of law.

  1. Animals have sense perception in varying degrees, and must also have the nutritive faculty, which allows them to survive. We can see here the influence of Pythagorean thought upon Plato since this also leaves room for the transmigration of souls.
  2. He thus returned to Athens and focused his efforts on the philosophical education he had begun at his Academy Nails 5. Laws must be instituted in such a way as to make its citizens good, but the lawmakers must themselves be good in order to do this.
  3. Form is the actuality of matter, which is pure potentiality. The Sophists Much of what is transmitted to us about the Sophists comes from Plato.

The new or amended legal rule gives judges, other officials, and citizens a new or amended reason for action or forbearance. Rather, the new or amended rule is normative, directive and where that is its legal meaning obligatory because that social fact can be the second premise in a practical syllogism whose first premise is normative: The moral normativity of the principle is replicated in the more specified rule created by the determinatio, even though the latter is not an entailment of the former.

That is to say: Purely positive law that is legally valid is presumptively and defeasibly valid and binding morally—has the moral form or meaning of legal obligatoriness—when and because it takes its place in a scheme of practical reasoning whose proximate starting point is the moral need for justice and peace, and whose more foundational starting-point is the range of basic ways in which human wellbeing can be promoted and protected, the way picked out in practical reason's first principles.

  1. Painting of Thomas Aquinas; attributed to Botticelli, 1481—82. Although mind can be in some things, nothing else can be in it—mind is unmixed.
  2. We are to imagine a cave wherein lifelong prisoners dwell. Do seriously unjust laws bind?
  3. After his eyes painfully adjust to the sunlight, he first sees only the shadows of things, and then the things themselves.
  4. Like Anaximander, Anaximenes thought that there was something boundless that underlies all other things.
  5. Finally, the seeds of all things have a moist nature, and water is the source of growth for many moist and living things. Yet, it was Diogenes of Sinope c.

Thus, in relation to the settled positive law, natural law theory—as is acknowledged by a number of legal positivists, e. The idea of authority has been clarified by contemporary legal theorists such as Raz and Hart, by reflection upon the kind of reasons for action purportedly given to potentially acting subjects by an exercise of practical authority.

The relevant kind of practical reason has been variously called exclusionary, peremptory or pre-emptive, and content-independent. The core idea is that subjects are instructed to treat the proffered reason say, a statutory provision, or a judicial orderin their deliberations towards choice and action, as a reason which does not simply add to the reasons they already have for acting one way rather another, but rather excludes and takes the place of some of those reasons.

And this exclusionary, peremptory or pre-emptive force is owed not to the inherent attractiveness to reason of the content of the proffered reason, but to the status of its author or other source as one entitled—for example, by its role in a constitutional scheme of governance for the solution of a political community's coordination problems—to be obeyed, complied with, treated as authoritative.

This content-independence of authoritative reasons entails their presumptive obligatoriness. The defeasibility of that presumption is entailed by the dependence of such reasons' peremptory, pre-emptive or exclusionary force upon a background of presupposed basic human needs and goods, and of basic moral principles and norms, a background which entails that if a purportedly authoritative proffered posited reason conflicts sufficiently clearly with those standing needs, goods, principles or norms its exclusionary force is exhausted or overcome and the purported obligatoriness defeated.

Less abstractly put, both the effectiveness of laws as solutions to coordination problems and promoters of common good, and the fairness of demanding adherence to them, are dependent upon their being treated both by the subjects and the administrators of the legal system as legally and morally entitled, precisely as validly made law, to prevail against all other reasons save competing moral obligations of greater strength.

It is this entitlement that is negated by the serious injustice of a law or legal system: Human persons are not law's creatures but its proper point Talk of human flourishing's or wellbeing's aspects, and of principles of practical reason, should not be allowed to distract attention from an important truth, implicit both in classical Greek and Roman philosophical and juristic treatments of justice and in modern juristic attributions of human rights.

Law, fit to take a directive place in practical reasoning towards morally sound judgment, is for the sake of human persons: That thesis falls within those parts of legal theory that are acknowledged but not much explored by contemporary legal positivists.

Philosophy of law

It was ignored and in effect denied by earlier forms of legal positivism more ambitious to cover the whole of legal philosophy, e. Kelsen denied that persons were known either to law or to a proper legal theory or science of law, except insofar as they a comparison of the actions of two greek rulers to divine law made the subject of a posited legal rule. But against this restriction, which has misled some courts which have treated Kelsenian legal science as a guide to judicial reasoning, it can be said Finnis 2000 that the fundamental equality and dignity of human beings should defended as part of a rationally sound understanding concept of law.

This defense requires an account of the difference between capacities which are activated here and now, or are more or less ready to be so actuated, and radical capacities such as exist in the epigenetic primordia of even very young human beings, and in the genetic and somatic constitution of even the severely disabled. Though such an account makes possible a defense of the fundamental equality of human beings, and thus a humanist legal theory, the point of the account is not to privilege a biological species as such, but to affirm the juridical significance of the status of persons—substances of a rational nature—as inherently the bearers subjects of rights of a kind different and more respect-worthy and end-like than the rights which are often, as a matter of technical means, attributed by law to animals, idols, ships or other objects of legal proceedings.

Natural law theory concurs with Raz and Gardner in rejecting the inclusivist restriction as ungrounded, but dissents from them in holding as Dworkin does too: Dworkin 1978, 47 that any moral rule or principle which a court is bound or authorized to apply, precisely as a court, can reasonably be counted or acknowledged as a law, i. Such rules belong to the ius gentium portion of our law. Does this amount to acknowledging that natural law theory is significantly less concerned than contemporary legal positivist theories to establish the precise boundaries and content of the social-fact sourced posited, purely positive law of our community?

The result of these rulings might be accounted for i by exclusive positivism: But the terms of the rulings as just summarized can be accounted for ii by inclusive positivism: Still, iii natural law theory's account seems the most explanatory: And if one has doubts about victors' justice, those very doubts can likewise appeal to principles of the same higher law, ius gentium, or law of reason and humanity. Normal adjudication and judicial reasoning has two dimensions or criteria for distinguishing correctness from incorrectness in judgments.

One dimension comprises social-fact sources statutes, precedents, practice, etc. Dworkin 1978, 326—7, 340. A theory of law which, unlike Dworkin's, places itself plainly in the tradition of natural law theorizing will be likely to depart from these positions in two ways. In the absence of such a single measure, legal reasoning must often—and in very hard cases, usually—be content to show that two or three alternative interpretations are distinguished from an indefinitely large number of other interpretations by being correct, that is, not wrong albeit not uniquely correct.

For as to [1]: A natural law theory, mindful of the normal desirability of a rule of law and not of judges see 1. On those occasions where such a departure is morally warranted, the theory will suggest that the judge is authorized to proceed according to the higher and perennial law of humanity, the ius gentium or set of universal principles of law and justice common to all civilized peoples, which deprives settled law—more precisely, what has been accepted in the jurisdiction as being settled law—of its directiveness for subjects and judges alike.

Is the settled law which the judge is morally authorized to set aside thereby being treated, even prior to the judge's handing down of judgment, as not law? The following section argues that that question should be answered both Yes and No. Do seriously unjust laws bind? In such a case, does the law as settled by social-fact sources, in losing its directiveness for judges and citizens, lose also its legal validity?

The answer depends upon the discursive context in which the question arises. Or if the discursive context makes it appropriate instead to point up its lack of directiveness for judges and subjects alike, one can say that the rule, despite its links to social-fact sources, is not only not morally directive but is also legally invalid.

Each way of speaking tells an important part of the truth, or rather, tells the truth with an emphasis which differs from the other's. The excitement and hostility aroused amongst modern legal theorists notably Hart by the former way of speaking is unwarranted. It is thus law only in a sense that should be judged—especially when law is regarded, as by Hart himself, as a kind of reason or purported reason for action—to be a distorted and secondary, non-central sense.

The slogan is unintelligible save as an expression of and incitement to engaging in such critiques; it can scarcely be rejected without a comparison of the actions of two greek rulers to divine law misquoting it, as Hart and those who employ his argument almost invariably do, averting their gaze from the slogan's first predicate and implied assertion: Some theories have adopted certain main tenets of natural law theory, and professed to be natural law theories, but have asserted that even the most unjust laws create an obligation to obey which is both legal and moral.

Kant's see Alexy 2002, 117—121 is such a theory: Alexy has pointed out the confusions and inconsistencies in Kant's attempts to evade the classic position that laws whose injustice is sufficiently grave can and should be denied to have the legal character predicable of laws that citizens and courts, precisely as courts, are morally and juridically entitled to treat as—or as if they are—not law.

In this as in many other respects, seventeenth and eighteenth century philosophical developments like their twentieth and twenty-first century counterparts were not so much progress as regress.