Natural Law Thinking Research Articles

Natural Law with and without God

There is a common perception of natural law theory as characteristically (if not necessarily) theistic. This is sometimes presented as a drawback by secular critics of natural law thinking. Natural law authors themselves differ on the role of theism within their theories. Some have argued that natural law theory presupposes theism, while others have sought to give their views a secular basis. This article explores the relationship between natural law theory and theism. I begin by defining the characteristic features of the natural law outlook. I show that these core aspects of natural law thought can be rendered consistent with both theistic and non-theistic worldviews. However, these worldviews may yield different responses to some fundamental questions about natural law, such as where natural law comes from; how (and to what extent) humans can know about natural law; why humans should follow natural law; and whether natural law changes. I explore the consequences for natural law theories of theistic and non-theistic answers to these questions. I then offer some reasons for thinking that a version of theism incorporating what I term ‘qualified teleological perfectionism’ provides the most coherent foundation for the natural law outlook.

British Utilitarianism after Bentham: Nineteenth-Century Foundations of International Law Part II

Abstract What are the legal principles of British utilitarianism in the long nineteenth century; and what conception(s) of international law do they offer? The celebrated founder of the utilitarian school is Jeremy Bentham, who categorically rejects all metaphysical natural law thinking by insisting that all positive law ought to be adopted by a legislature. But in the absence of a world legislature, what did this mean for the positivity and normativity of international law? Surprisingly, Bentham and a second generation of utilitarian thinkers can affirm the legally binding nature of international law; yet with John Austin, a radical ‘sovereigntist’ critique subsequently casts doubt over the nature of international law as law ‘properly so called’. This infamous scepticism would have a profound impact on British international thought in the twentieth century; yet in the nineteenth century, the ideas of a third-generation utilitarian became more prominent: the liberal philosophy of John Stuart Mill. Mill’s ‘relativist’ and ‘civilisational’ conception of international law thereby gave the utilitarian project a specifically imperialist dimension that will be analysed, both in its utilitarian-philosophical and practical-legal dimensions. The article however also explores two other legacies of British utilitarianism, namely: the rise of international codification and the emergence of a specifically British conception of private international law during the nineteenth century.

Indigenous Sovereignty, Common Law, and Natural Law

AbstractRenewed calls for Indigenous sovereignty in North America have led some scholars to search Western philosophy for thinking that affirms these claims. Many suggest that the common law tradition offers resources to do so. In this article, I argue that common law is limited in its capacity to endorse Indigenous political legitimacy. Instead, I suggest that supportive elements in common law are trace remnants of natural law thinking. Further, natural law as a concept resonates with contemporary Indigenous philosophy that maintains that nonhuman nature is suffused with morality and normativity, making the natural law tradition worth considering for defenses of Indigenous sovereignty. I propose beginning with the work of Bartolomé de las Casas. While my aim is not to defend either Lascasian nor Indigenous natural law, I conclude that they should be part of efforts to understand the ongoing conflicts between Indigenous nations and colonial states.

Reparations for Truth

There is much bad feeling, both real and cultivated, circulating these days between peoples of European decent, and peoples of Native American (both North and South America) descent, especially with regard to recent discoveries of historical events which occurred at schools run by American and Canadian authorities, as well as by the Catholic Church. Such scandals have hampered ongoing reconciliation efforts, and led to accusations of the existence of a concerted program of abuse and subjugation on the part of the Catholic Church. This article explores the issue, by way of a careful examination of the history of natural law thinking, as well as the formal statements of the popes regarding the actions of Europeans in the New World. While not glossing over historical misdeeds, it concluded that papal statements, articulated in the natural law tradition, were consistent in their condemnation of slavery and misuse of native peoples. They were also, sadly, ignored. The author concludes that a better understanding of natural law ideas is needed, both to understand the past, as well as to provide a method of reconciliation and moving forward, for the future.

Tillichova koncepcia prirodzeného zákona

There has been a small revival of natural law thinking in Protestant churches and theology since 1990. This article poses the question of what kind of ethics the German American theologian, philosopher and ethicist Paul Tillich espoused. More specifically what kind of natural theory did he hold? The methodological and hermeneutical key of the article is based on reading thoroughly from Tillich’s work, e.g. Morality and Beyond; Love, Power and Justice; Morality and Moralism: Towards a Theonomous ethics; Systematic Theology, etc. and quoting these sources extensively in order to avoid misconceptions. In order to answer the aforementioned question, the author presents the main concepts in Tillich’s writings, such as theonomy, the Protestant principle, and proceeds to demonstrate how they are related to the natural law thinking which Tillich stands for. All this will be applied to one of the most common objections to natural law: the naturalistic fallacy and the way Tillich bypasses it. This article also provides a short survey of secondary literature about Tillich and Natural Law.

Hegel’s Political Philosophy

ABSTRACT The Philosophy of Right presents us with a vision of bureaucratic paternalism that is designed to check the excesses of free markets set in motion by the triumph of natural-law thinking, which abstracted the principles of private property and subjective freedom from the institutions that had tamed them and situated them in a stable context. Against these excesses Hegel pits the agricultural estate, which has not succumbed to natural-law thinking; and a “universal estate” of bureaucrats who are educated in Hegel’s philosophy itself, freeing them of the natural-law conflation of human needs with arbitrary and endlessly expanding preferences. Taught by Hegel to look after the needs of the organic whole that is society rather than the gratification of their own preferences, the task of the bureaucrats of the universal estate is to curb the tendency of free markets to produce the social preconditions for an alienated “rabble” to bring down the system.

THE POSITION OF MORAL VALUES IN LAW

Moral values in legal science are important. However, the flow of law sees a variety of moral values. This paper aims to see the position of moral values in the science of law. Legal positivism separates strictly between law and morals. According to him, there is no law other than the command of the authorities. Even extreme identifying the law (Recht) as the law (wet). Legal positivism activities are aimed at concrete problems, which are different when compared to natural law thinking which engages itself with the validation of man-made law. For adherents of natural law theory, an unjust law is not law. there is an absolute relationship between law and morality. the two cannot be separated, so the law must refer to moral principles.

The Origins of Natural Law Thinking in the Ideas of Ancient Greek Sophists: Protagoras and Antiphon

Protagoras and Antiphon are the first authors known to us who offered their views on the correlation between human nature, on the one hand, and the requirements of the law and positive morality, on the other. With Protagoras and Antiphon, the conventional character of law and morality, as well as the existence of a moral obligation to obey the law, became vital subjects of philosophical discussion. Protagoras, according to Plato’s testimony in the dialogues "Protagoras" and "Theaetetus", attempted to reconcile individual and public interests with the help of the concept of universal virtue, which all citizens of the polis should participate in. This attempt, however, is difficult to regard as successful, since, according to the logic of Protagoras, virtue is only a means for the survival of individuals and ensuring their security. While providing justification of the paramount importance and natural character of civic virtues, Protagoras at the same time allows for the possibility of following them only for appearance, as a cover for selfish motives.Antiphon views the contract between people as the sole and sufficient basis of law and morality. Approaching the problem from an individualistic point of view, Antiphon sharply contrasts nature and convention. Nevertheless, he considers the former rather in terms of benefits and harms of following it, and not as a source of objective moral prescriptions. According to this interpretation, nature and convention are two different worlds; one may chose which of them to follow, but it is impossible to reconcile them. Neither Protagoras, nor Antiphon offers any consistent concept of human nature, and that is why their ideas could not be characterized as natural law in the full sense of the word. Their views of nature do not yet contain fundamental standards, with which human law and conventional morality could be compared. The main weakness of both theories is their inability to give account of the social character of human nature. At the same time, the undoubted merit of Protagoras and Antiphon is the very statement of the question of the priority of nature or the convention, individual or public interests, as well as of the possibility of their harmonization. The ideas of two senior sophists played a decisive role in shaping the intellectual climate, in which, primarily in direct controversy with them, Plato and Aristotle produced much more elaborate concepts of human nature; and the natural law tradition emerged.

Towards a New Narrative of Natural Law Thinking in Early Modern Scholasticism

Towards a New Narrative of Natural Law Thinking in Early Modern Scholasticism

The Shadow and the Sun

This article traces certain concerns of natural justice in the thought of Nasser Hussain through the lens of several of Hussain’s writings. The article’s first section examines the 1966 privacy case, Griswold v. Connecticut, as a paradigm of certain natural law concerns which become important in Hussain’s work on the Universal Islamic Declaration of Human Rights. The second section examines a chapter of Hussain’s book The Jurisprudence of Emergency, on nineteenth-century Indian and British legal history, in the context of relevant strands of thought from previous eras, chiefly Montesquieu and Thomas Hobbes; the analysis asserts that the primitive or “natural” portrayals of colonial populations constructed by European legal-political ideologies inflect natural-law thinking in a way which sheds light on the concerns of the article’s first section. The third section moves to Hussain’s concern with recent American use of unmanned aerial vehicles (drones) in the Middle East, tracing their history through the postcolonial era to render broad conclusions about how some of Hussain’s larger natural-justice concerns might be addressed.

Aquinas’s Ecological Vision: Natural Law and Friendship in Contemporary Environmental Political Thought

This article examines Aquinas’s thinking about law and nature to show that for Aquinas natural law is not about deriving or finding normative rules (standards) in the order of the cosmos or requirements of practical rationality. Rather, I argue that for Aquinas, natural law is a distinctive way of theorizing relationality and embodiment in the “sublunary realm”: one that aims at “friendship” across species lines (STI-II99.2-3). The word Aquinas uses to describe this ecological practice is synderesis. For Aquinas, synderesis is both the human-creaturely capacity to grasp the analogical structuring of reality and the “disposition” that allows us to work on transforming this reality into belonging-together through our participation in natural law (STI79; DV15-17). Synderesis is thus of central importance to Aquinas’s account of natural law, yet it is largely overlooked by modern natural law theorists. The article concludes by exploring how Aquinas’s natural law thinking might contribute to an environmental politics of friendship.

Lying and Christian Ethics.By Christopher O. Tollefsen.

C hristopher T ollefsen ’s book on the ethics of lying weaves together both theological (revelation-based) and philosophical (reason-based) arguments for the traditional Roman Catholic teaching that lying is always and everywhere wrong, regardless of the consequences. It is, however, the philosophical case against lying on which Tollefsen focuses most centrally—not surprisingly, since he is a philosopher. Like Germain Grisez, Joseph Boyle, and John Finnis, Tollefsen is a proponent of the ‘New Natural Law’ school of moral philosophy, a school that is rooted in a certain way of interpreting and developing the natural law thinking of Saint Thomas Aquinas, arguably the single most respected thinker in the Roman Catholic tradition. According to this school, our most basic moral duty is to respect and promote the goods that fulfil human persons, including life, health, truth, friendship, beauty, personal integrity, marriage, and religion. We recognize these things as self-evidently good for their own sakes and do not infer their goodness from mere descriptions of human nature or other facts about the world. While our own circumstances in life will rightly lead us to focus on some goods more than others, we must respect and remain open to all of the goods in every choice we make, and this means we must never act directly or intentionally against any instance of a basic human good. That is, the object of an action must never include damage to a basic human good. Some acts are thus by their very nature intrinsically immoral and sinful and never to be done, no matter what the ulterior goal or circumstances might be—a position articulated by Pope John Paul II in his 1993 encyclical letter Veritatis Splendor .

Police interrogation of the suspect – a power play

Police interrogation is a decisive step in criminal justice. The police officer who interrogates the sus-pect tries to find out what happened and, if possible, to procure a confession. Once the suspect has made a confession “the cat is out of the bag” and the case will most likely end with a conviction.In the past, the suspect was exposed to police interrogation without any protection, so the police could turn their questioning into an aggressive power play. In the western world the philosophy of Enlight-enment, Natural Law thinking and the introduction of constitutionally protected individual rights have led to the developing of safeguards to shield the suspect from interrogation methods that were no longer considered acceptable. This development has not yet come to an end.Today, the most important safeguard of the suspect is the privilege against self-incrimination. The privilege has been interpreted to require warnings to be given to the suspect before interrogation can start. The warnings include, among other things, information as to the right to silence and the right to have counsel. To enforce these requirements exclusionary rules have been developed. Equally im-portant is the question whether interrogation must cease once a suspect wishes to remain silent or to have counsel. In addition a number of interrogation methods interfering with the suspect's freedom to determine and exercise his or her will have been outlawed. Finally, there is the question whether in-ferences may be drawn from the suspect's silence.In spite of these safeguards police interrogation must, still today, be considered a kind of power play. The important question is how to develop further rules and how to enforce them to turn interrogation into a fair play.A Chinese translation of the article was published in the December 2015 issue of the Journal of Southwest University for National Minorities - Science Edition.

In Defense of the Amphibians: A Critical Appraisal of Engelhardt on the Recent History of Christian Bioethics

Engelhardt argues that the correct interpretation of the marginalization of Christian voices in the recent history of bioethics is best explained as the acquiescence of Christian bioethicists to secularizing trends rather than as Christian bioethicists having been pushed aside by the philosophers who came to dominate the field. He identifies the origins of this secularization with natural law thinking, which he dubs as “amphibious” with respect to religious thinking and worldly thinking. I argue that this interpretation is incorrect. First, natural law thinking has been an acceptable mode of Christian moral thinking dating back to the Church Fathers. Second, any form of theology requires a philosophical framework, even one’s interpretation of scripture, so that there is no “pure” theology untainted by “worldly” reasoning. Third, Engelhardt’s account of this history commits the secular fallacy and strains credulity. Fourth, his interpretations of Ramsey and McCormick are idiosyncratic at best. By contrast, it is argued that in accepting Christianity one does not thereby reject reason and philosophy. Some guidelines for being “an amphibian”—for example, for doing natural law bioethics as a Christian— are proposed.

The Work of Lon Fuller: A Promising Direction for Jurisprudence in the 21st Century

This is a review article of Kristen Rundle, Forms Liberate. Reclaiming the Jurisprudence of Lon L Fuller, and Jutta Brunnee & Stephen John Toope, Legitimacy and Legality in International Law. An Interactional Account. It puts both books in perspective, in the context of a modest Fuller revival since 1994. Rundle successfully tries to reclaim Fuller from the distorted picture that arose in the wake of the Hart-Fuller debate. According to Rundle, Fuller’s most important and still highly relevant message is that we should take the form of law seriously. There is a connection between the form of law and how law approaches human agency. Rundle relies extensively on unpublished materials from the Fuller archives. This was a fortunate choice, because in those materials Fuller was often franker and clearer than in the published materials. An interesting application of Fuller’s work is found in the field of international law, which has always been the Achilles heel of legal positivism. Jutta Brunnee and Stephen Toope have elaborated and adapted the Fullerian framework so that it provides an adequate theory of international law. In my view, they have provided a highly convincing account of the emergence of international law. Both books share a certain bias. First, the implicit focus on legislation leads to the neglect of other forms of law, such as contract. Second, Rundle’s focus on the conversations with Hart and others, and Brunnee and Toope’s focus on The Morality of Law, results in the neglect of those publications in which Fuller tried to transcend philosophical debates and present the field of jurisprudence in a relatively impartial way. For example, in Anatomy of the Law, Fuller tries seriously to do justice to the core of truth in both legal positivism and natural law thinking, to made law and to implicit law. I argue that once we accept that law is a gradual and pluralist concept, Fuller’s work may be seen to provide a rich source of inspiration. Perhaps his work is even more relevant and productive for the legal research agenda of the 21st century than it was in the last century.

The Superiority or Integrity of Natural Law for Our Time

The idea of the two laws, one resting solely on human authority and the other claiming divine or natural origin and therefore entitled to supremacy over mere human law, has a long and chequered history, and still possesses vitality in the 21st century. Human rights infringements by positive law, under the enactments of the Choice of Pregnancy Act 92 of 1996 and the South African Schools Act 84 of 1996, have led to a revival of natural law thinking. The aim of this paper will be to explore briefly the significance of natural law thinking in the past, to establish the forms in which it manifests itself in the present day, and to attempt to evaluate the contribution it may be capable of making to the problems of law in the modern world. Primarily, a theory of natural law needs to be undertaken to assist the practical reflections of those concerned to act, whether as judges, statesmen, citizens. The principles of natural law are traced out not only in religion, moral philosophy, and/or ethics and “individual” conduct, but also in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen. They require that authority be exercised, in most circumstances, according to the manner conveniently labelled as the Constitution or the “rule of law” and with due respect for human rights which embody the requirements of justice.

Changing Ethical Frameworks: From Individual Rights to the Common Good?

Whereas in the 1970s early bioethicists believed that bioethics is an arena for the application of philosophical theories of utilitarianism, deontology, and natural law thinking, contemporary policy-oriented bioethicists seem rather to be keen on framing ethical issues through political ideologies. Bioethicists today are often labeled “liberal” or “communitarian,” referring to their different understandings of the relationship between the individual and society. Liberal individualism, with its conceptual base of autonomy, dignity, and privacy, enjoyed a long period of dominance in bioethics, but it has increasingly come under attack from ideologies promoting a more salient role for concepts of solidarity, community, and public interest.

The Hermeneutical and Rhetorical Nature of Law

This article was presented at a Symposium at Villanova Law School devoted to Jean Porter's book, "Ministers of the Law: A Natural Law Theory of Legal Authority (2010). Porter engages the natural law philosophy of the early Scholastic period from our modern perspective and its attendant problems. Her approach provides helpful resources to deal with contemporary dilemmas such as gay marriage, but it also opens new possibilities for the development of natural law thinking. Her book is erudite, artfully presented, and provocative.In this article I view Professor Porter's successful resuscitation of a plausible account of natural law through a particular lens. My thesis is that we can productively extend her work by more strongly acknowledging the hermeneutical and rhetorical nature of law by drawing on the philosophy of Hans-Georg Gadamer and Chaim Perelman. I argue that natural law is best understood as "naturalized rhetoric." The ontological claims made by Gadamer and Perelman establish that human nature is radically hermeneutical and rhetorical, and it is this nature that should serve as the focus of an inquiry into the natural law. Simply put, it is our persistent human condition to continuously recreate ourselves and our society through rhetorical exchanges with others. A naturalized rhetoric embraces the paradox that nonessentialism is essential to our being, that we can find a foundation for reflection in antifoundationalism.My discussion is divided into three parts. First, I survey Professor Porter's argument and establish that she regards hermeneutical and rhetorical practices as critical features of her natural law account. Next, I develop my conception of a naturalized rhetoric. Finally, I explore how this account expands and deepens Professor Porter's natural law account of legal authority. I conclude that we should recognize law's rhetorical and hermeneutical nature, but that Porter has demonstrated the necessity of taking into account the Scholastics' natural law philosophy as part of this project.

The Two Levels in Natural Law Thinking

The Two Levels in Natural Law Thinking

The Truth in Things (And Love in the World): Accessing the Natural Law's Metaphysical and Theological Foundation

Troubled by the fruits of contemporary philosophical and spiritual nihilism and having discerned the inadequacies of positivism, a growing number of people experience profound dissatisfaction with modernity and are renewing the search for "the truth in hings," as Anselme of Canterbury once stated. Some seek a corrective element through a traditional understanding of natural law, and a number of Catholic scholars have made it their task to re-appropriate and articulate the natural law for the modern age, both with varied success. This article traces some of the foundational notions that ground natural law thinking. It illustrates how the natural law might be better recovered and clarified in light of modern philosophical assumptions. Finally, the article suggests that the natural law must be viewed through the theological lens of Christian charity for its full substance to be apparent.