Natural Law Philosophy: Law as Subordinate to Social Justice and Political Morality in Society

Abstract

Natural law philosophy presents a critique of the positivist conception of law. It defines the law as subject to criteria of (absolute) religious, social, or political justice, leading to a profound intertwinement of the formal validity of law and its moral merits or dismerits. Historically, natural law philosophy can be divided into the classical, scholastic, rationalist, and modern natural law thinking. Here, emphasis is on the more modern variants of natural law thinking. After World War II, several criteria have been suggested for restraining the discretion of the legislator and the courts of justice. Lon L. Fuller forcefully defended the idea of the internal, i.e. institutional or procedural, morality of law. He also made the distinction between the two kinds of morality: the morality of duty and the morality of aspiration. Still, it is only the requirement of due promulgation of laws that is placed under the criteria of a morality of duty, softening the edge of Fuller’s philosophical stance. Moreover, Fuller’s eight criteria for the internal morality of law are better aligned with parliamentary legislation than with judge-made common law, and a totally different set of criteria would be needed for the latter. H. L. A. Hart’s idea of the minimum content of natural law is based on a set of contingent but still true ideas concerning human nature and society. In the light of Hart’s debate with Fuller, I defend the argument that Hart’s idea of the “core of good sense in natural law” ought to be read as a set of technical norms only, devoid of any genuinely moral content. Finally, according to John Finnis, human experience teaches us that there are seven basic values or basic goods that the legislator, courts of justice, and other officials ought to observe, viz. life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and “religion”. Contrary to what Finnis writes, the allegedly self-evident, a priori character of such basic values is far from patent, and it seems that Finnis’ line of argument ends up in a logical circle. The greatest value or, depending on the preferences and aversions of the observer, the worst failure of natural law thinking is the intertwinement of the law with religious, political, or social morality.