Natural Law: Exploring Moral Principles and the Relationship Between Law and Morality

Natural Law and Legal Theories

Natural law = is a set of universal moral principles, law=moral Legal positivism = law is a collection of man-made rules (law can also be immoral) -> IUS POSITUM Legal realism (critic of legal positivism and natural law) -> it studies law as an empirical entity, it's flexible to the change of the society.

Morality and Law at Variance

The issue that stands behind nearly every controversy in contemporary legal theory is the problem of how law is to be understood in relation to moral values. The systematic and rigorous analysis of the law requires 'the separation of law and morality' and this is frequently referred to as the separation thesis (it is generally held to be the defining characteristic of legal positivism; the function of which is primarily to develop an accurate description of the reality of law).

. It seems that morality and the law have a common purpose. Similarly, the system of criminal justice is expected to respect popular norms of approval and disapproval. The primary function of the criminal law is commonly taken to be the protection of people from those who threaten or violate the interests of others. The most characteristic criminal offences are those that are commonly regarded as morally wrong: assault, murder, theft, burglary, fraud, criminal damage and so on (if it is wrong, it must be illegal; if it is legal, it must be morally required or at least morally acceptable)

. There are in fact a number of distinct ways in which legal norms substantially diverge from moral norms.

1. On the one hand, the law is in many respects less demanding than any serious moral code. The great majority of laws are prohibitions rather than positive commands, their main purpose being the negative one of establishing boundaries.
2. On the other hand, however, the law is in some senses more demanding than morality (one can break the law without doing anything morally wrong).

Contemporary disagreement over such issues as the right to own frearms, the hunting of various kinds of animal, the stage of pregnancy at which abortions become unacceptable, the illegality of nearly every form of euthanasia, reveals an uneasy relationship between morality and the law. On such matters, the law cannot reflect the prevailing moral code, because there is no general agreement on the rights and wrongs at stake. The myth of the congruence between morality and law is also exposed by any reflection on the history of institutionalised injustice and the struggles for equality and human rights.

. It is only from the standpoint of moral objectivism that it can be argued that the demands of justice rise above any particular social belief system, and that such laws can be judged in absolute terms as right or wrong.

. Moral relativists tend to argue that what usually happens is that with the advance of civilisation, the law comes into conflict with evolving moral norms, as these practices are increasingly perceived to be wrong; and that the law continues to protect outdated moral beliefs until it is reformed. There is a permanent tension between morality and the law. The positivist separation thesis insists that the law is one thing and morality, or the moral evaluation of the law, is another. This means that the connection between law and morality is contingent; laws do not always coincide with moral values or moral codes. A law does not have to conform with any moral standard to be counted legally valid. One thing the separation thesis does not mean, however, is that legislators and judges are concerned exclusively with legal matters and should be quite indifferent to the moral rights and wrongs of the law.

The Concept of Justice

The suffering about earthquakes is not injustice. Injustice= lack of governments to relieve pain from things (for example hurricanes or earthquakes) Justice is an issue when there is a purpose activity. We can all give examples of an injustice, but when faced with the direct abstract question of what exactly is the justice that is being denied, it is di$cult to know where to start.

Just & Unjust Categories

Just&Unjust Three basic categories:

• Agents -> there is an agent
• Actions -> a just action is one that is sensitive to the rights of all those affected by it (the unjust violates these rights)· States of affairs created by actions of agents -> human society, a rule of law and a legal system - that can be just and unjust.

The kinds of thing that can be described as just or unjust fall into three basic categories: agents, actions and states of affairs that are created by the actions of agents:

1. In traditional usage, the quality of justice is commonly attributed to individuals as such, a 'just God', 'a just monarch' or 'a just man'. Although this usage is still extant, it is more common today to speak of persons with a greater or lesser sense of justice. We also use the term collectively to describe governments, which can have a general reputation for justice or for tyranny.
2. It is also more common in contemporary discourse to ascribe justice to particular actions and decisions rather than to people as such. A just action or decision is one that is sensitive to the rights of all those affected by it. An unjust action or decision is one that violates these rights.
3. The institutions typically held to exhibit the qualities of justice or injustice in varying degrees are those of a human society, a rule of law and a legal system. A society can be just or unjust in different ways: it can be organised in such a way that its benefits or burdens are distributed unfairly, and 'an unjust society' can also be understood as one in which the discrimination against or persecution of minorities is commonplace. More specifically, a legal system - which is often assumed to be the very embodiment of the pursuit and protection of justice - can be just or unjust to a greater or lesser degree. Legal systems can be defective in other substantive ways, by failing to provide just and accessible remedies for civil wrongs, or by failing to develop an effective system of criminal justice. More specifically again, an unjust law is one that is perceived to perpetrate a formal or substantive injustice.

The above threefold classification can be supplemented by Aristotle's analysis, which remains a classical point of reference for legal theory. Aristotle (384-322 BCE) divided justice into

• the distributive
• the corrective (or 'emendatory')

1. voluntary private transactions
2. involuntary transactions -> it turns on the presence or absence of violence towards the victim of the injustice.

This classification corresponds roughly to the distinction between social justice, civil justice and criminal justice. Aristotle divides justice into:

• DISTRIBUTIVE -> how the society will divide finite goods among its memebers (honour and property) In the context of distributive justice, the problem of how the equality and inequality of status and entitlements between individuals are to be understood is paramount. Each political interpretation of what is to count as a fair distribution - whether rewards should be based on, for example, personal ancestry, individual worth and desert, effort or needs - has different implications for conclusions about political equality.
• CORRECTIVE -> how the society will correct wrongs that have been done (it intervenes to correct what is wrong -> compensation for the people that were in unjust situations) With both kinds of corrective legal justice, civil and criminal, the ideal of universal equality before the law is assumed. While it may often be true that legal practice falls short of the ideal, this equality in status between individuals who may be unequal in social standing or personal resources is one consequence of the first principle of formal justice, that 'like cases should be treated alike'. This is not a timeless principle of formal justice, to be found in practice wherever there is a legal system; it is an ideal towards which civilised legal systems can generally be seen to be moving. It is a principle symbolised by the scales held by the statue of justice over the Old Bailey. The scales symbolise the essential aim of corrective justice as the restoration of a balance or equilibrium that has been tilted or broken. The scales also signify that all individual interests are weighed equally, while the symbol of justice blindfold signifies that all legal judgements will be made impartially, without favour or discrimination. The main purpose of corrective justice, then, in seeking to restore the equilibrium by penalising civil wrongs or criminal actions in proportion to the wrong or harm done, is to deliver this justice within the limits imposed by patterns of law that have already been established. This is one of the meanings of the phrase 'justice according to law'. Judges, it is generally held - especially in the light of the doctrine of binding precedent - are not free to arrive at what they in their conscience or individual wisdom believe to be the best decision; on the contrary, they are constrained to find the just decision within the law.
• TRANSANCTIONAL -> how society will determine a just exchange

Formalisation and Depersonalisation of Justice

Formalisation (=within the concept of law) and depersonalisation (=no bias, it is more rational, it's general -> it applies more to actions rather than people) of justice The relevant 'likeness' in the phrase lies in the actions and situations involved, rather than the types of people. This aspiration to complete legal impartiality is one essential feature of what is known as the rule of law. If the justice in all kinds of human transactions is to be measured effectively, those transactions have to be governed by rules that are applied with as much consistency as it is possible to achieve. What this requires is the formalisation, and hence the depersonalisation, of justice. Moral principles and standards have to be formalised into unbending rules that then apply to the act, rather than the actor. This formal conception of legal justice appears to many to run against the grain. It sometimes feels like an abandonment of real justice, which should surely take account of the full context and circumstances of a legal dispute or crime. The point of it, however, is that in the history of any legal system a stage is reached at which the influence of power and wealth on the administration of law is resisted and neutralised. When judicial independence is established, the ideal of impartiality - itself a precondition of equality before the law - can be developed. The outcome of such conflicts is a strong legal presumption in favour of the courts adhering to strict general rules, without which equality of treatment of parties would not materialise, leading to an arbitrary system of ad hoc decisions that would be no legal system at all. To counter the danger of justice becoming over-severe, Aristotle introduced the concept of equity (epieikeia), which he regarded as a quality intimately connected with, but distinct from and more precise than, justice. For Aristotle the function of the appeal to equity was to allow judges to temper the severity of legal justice, without departing from the constraints of law.

Natural Law vs. Legal Positivism

Natural law The spirit of law has to be found outside the formal legal system Law is the outcome of rincivilendo of natural foundations first Law is a human convention (conventionalise point of view) The value of law is deeper than a human convention Immoral law is not legal Connection between law and moral is contingent The natural lawyer finds at the basis of law something beyond human control or arbitrary decision. It is something that binds human lawmakers quite irrespective of what any individual or group wishes or decides; it is a force we feel impressed upon us whether we like it or not. Law is the outcome, not of human agreement, but of first principles or natural foundations, the value of which runs deeper than the usefulness or expedience of conventions. This is a 'foundationalist' conception of law, according to which laws discovered rather than creations. The laws thus created might Legal positivism The law is written letter posited by a valid legal authority Immoral law is legal Judges concerns with legal matters, they should be indifferent with the moral issues of law The legal positivist finds at the basis of law a human convention, something decided or stipulated at a determinate time, by flesh-and- blood individuals, for a particular purpose, with a specific function in mind. Law thus interpreted is an agreement in the sense that it is an outcome of decisions, rather than the issue of something beyond any individual or group wishes or human control. The makers of these laws are people in a position of power sufficient to impose their will on the whole community, and the rules and sanctions thus put into effect might be implemented with or without consultation or consent. Either way, this is how laws are made; individual and collective decisions are the origin of law, and what law is, can be explained in terms of what has been decided and laid down as law. These decisions or stipulations are essentially free (authority and legitimacy). reflect any interest or none, they may be steeped in wisdom and justice, or they might be widely regarded as tyrannical. Such considerations are irrelevant at the are stage of the definition of law; the question as to how good or bad the made laws are has no bearing on their status as laws. This is a 'conventionalist' view of law (focuses on authority and the mechanisms of power).