NATURAL LAW RECONSIDERED

Abstract

'Natural Law' is a term so rich in ambiguities as to be rivalled only by 'Positivism'. So often have we had grand set piece encounters between natural law and positivism that we have misled ourselves into thinking that there is some single central issue at stake upon which only two views are on offer, one being right and the other one wrong-the only question being, which? My task in this paper is to review a book, John Finnis's Natural Law and Natural Rights (Clarendon Press, Oxford, I980), whose merits include the high virtue of setting the record right upon that matter. There are at least as many ways of being a natural lawyer as there are of being a positivist, and it needs to be seen which is defensible, if any. There is accordingly no single 'positivism v natural law' question. If we asked why we had ever thought there was, the answer would lead us back to the work of David Hume. Hume himself has a most attractive (to me) view of natural law. In the evolution of human societies, it is natural that certain conventions, laws, and institutions develop, covering such matters as restraints upon violence, restraints on sexual dealings, protection of possessions, and restraints upon various forms of deceit and breach of faith; it is natural that there develop agencies with the function of judging upon alleged breaches of such primary requirements of conduct. Considering the circumstances of human existence, and the fundamental traits of human beings, it seems justifiable to sustain and elaborate upon the laws and institutions we have thus naturally developed. We have reason to have and preserve these laws and institutions. In the common sense of the term 'reasonable', it is reasonable to have these. Yet on the other hand, as Hume said, reasonable though such laws and institutions are, reasonable though it is to observe and sustain them, 'human reason' is not a faculty which reveals them or establishes their 'truth'. Our assent to such laws and institutions is in the last analysis rooted in 'the passions' as Hume called them, 'emotions' as Alf Ross's translators have called them. This last analysis is a complex and difficult analysis, according to Hume. Hume certainly would not have agreed with Ross's early assertion that to speak of justice is functionally equivalent to beating upon the table.