Natural Law - Part I

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1 The Pure Theory of Natural Law PART I This is the first draft of the first part of an ongoing project. Please do not quote. Comments are welcome at Frank.vanDun@Ugent.be 2 The word ‘law’ denotes order: law is an order of things. Accordingly, the term ‘natural law’ denotes a natural order of things. ‘Law’ also connotes respectability: law is an order of things that people ought to respect. A natural law theory, in so far as it concerns human affairs, attempts to explain both what the natura
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  1 The Pure Theory of The Pure Theory of The Pure Theory of The Pure Theory of  Natural Law  Natural Law  Natural Law  Natural Law PART I  This is the first draft of the first part of an ongoing project. Please do not quote. Comments are welcome at Frank.vanDun@Ugent.be   2  The word ‘law’ denotes order: law is an order of things. Accordingly, the term ‘natural law’ denotes a natural order of things. ‘Law’ also connotes respectability: law is an order of things that people ought to respect. A natural law theory, in so far as it concerns human affairs, attempts to explain both what the natural law of the human world is and why and how we ought to respect it. However, whether, why and how we ought to respect the natural law are questions that we cannot address sensibly before we have a clear idea of what the natural law is. It may not be meaningful to speak of the natural law of the universe, an order that encompasses all things. However, it is meaningful to speak of the natural order of particular sorts of things in the universe. Physicists, chemists, biologists, astronomers, geologists, and practitioners of other natural sciences all look at different orders of things, concentrating on different sorts of objects and phenomena, trying to discover and eventually to explain patterns of order (natural laws) within their chosen fields. Because this book is about the natural law of the human world 1 , we shall focus on the natural order of human persons rather than the natural order of such things as particles, atoms and molecules, physical states, cells, organs, and life forms. 1  Etymologically, ‘world’ means the era of mankind. Cf. the Dutch equivalent ‘wereld’ (world), from ‘wer’ (man) + ‘alt’ (age, period). Strictly speaking, then, the adjective ‘human’ is redundant.  3 I. PROLEGOMENA 1. A Controversial Concept   ‘The natural law of the human world’ is a controversial notion. However, most of the controversies surrounding it have little to do  with the idea of the natural order of the human world that is the subject of our analysis. Therefore, we need not discuss them in detail.  The following paragraphs accordingly are intended only to give a quick and incomplete overview of the sorts of things one might encounter when delving into the literature on the natural law. In addition they will allow us to introduce some concepts that we shall use in the rest of the book. Natural law: rule or order? Nowadays, under the influence of a variety of doctrines, known collectively as legal positivism, many people take the word ‘law’, in so far as it relates to human affairs, for a full or near-synonym of ‘legal system of a society’. 2  Hence, the popular conception of the natural law is not that it is the natural order of the human world or the order of natural persons but a legal system of an unusual and perhaps rather mysterious kind. Such a legalistic conception assimilates the natural law of the human world both in form and subject matter to the familiar legal systems of our societies and states. It spawns understandable misgivings about rules or commands that we ought to obey or follow because they supposedly are ‘given by nature’ or ‘found in nature’. Obviously, rules and commands are not natural 2  Hans Kelsen, the standard bearer of legal positivism during most of the twentieth century, at one point claimed that his formal analysis of the concept of a legal system also covered all systems of natural law. Thus, if we are to believe him, his Reine Rechtslehere   dealt not only with the form of positive law but also  with the form of natural law—it was a formal theory of natural law (‘formales Naturrecht’) as well as a formal theory of positive law. The claim is preposterous. Kelsen was merely begging the question: in his view, to the extent that natural law is law it must   have the structure of a legal system, otherwise there would be no point in calling it ‘law’!  4 things; there are no natural legal systems. However, that does not mean there is no natural law of the human world. It means that the conception of natural law as some sort of legal system is false. Other critics say that even if the natural law is not a legal system of sorts it nevertheless is a system of rules of conduct (say, a system of moral rules). They make the same mistake: the natural law is not a system of rules of conduct. Rules and prescriptions enter natural law theory only when one raises the question, why one should respect the natural order of the human world. Rules that indicate how people should act if they want to respect the natural order properly may be called ‘rules of law’: they are neither the natural law itself nor its elements nor patterns of order (natural laws) that we can discern in it. To identify rules of law and the conditions of their application are problems that belong to such disciplines as the ethics and the jurisprudence of natural law. Because these are far from exact sciences it often is debatable whether a rule is a rule of law and, if it is, in just what circumstances it will achieve its purpose. However, the primary task of natural law theory in the strict sense is merely to describe the natural law and the patterns of order or natural laws that its study and analysis reveal. If the natural law were a system of rules of conduct then it would be something the meaning of which is that it ought to be obeyed or followed (as one would obey or follow a commander or a teacher). A rule or a system of rules of conduct necessarily has a normative or prescriptive meaning  . However, it need not have normative significance   (or validity): it may be irrelevant, unimportant or just plain wrong. Indeed, there may be rules that one ought not   to follow or obey. ‘Drop dead!’ has a clear normative meaning; few people think it is normatively significant. Obviously, the assumption that ‘law’ refers to a rule or system of rules must be rejected if we think of law as an order of things. It makes no sense to say that an order of things ought to be obeyed or followed; it makes no sense to say that the meaning of an order of things is that it ought to be obeyed or followed. However, it does make sense to ask whether we ought to respect   it. We can respect an order of things just as we can respect another person or, say, a thing of beauty—and we can do so without obeying or following them and  without assuming that they have a meaning or that ‘we ought to be respected’ is what they mean. That something has no normative
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