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Lecture

Natural Law + Legal Pos - Lecutre 7.docx

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Department
Anthropology
Course Code
ANT100Y1
Professor
Shawn Lehman

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2350 Law and Society Tuesday October 22, 2013 Lecture 7: NATURAL LAW and LEGAL POSITIVISM Natural Law vs. Legal Positivism  Natural Law: law is a matter of applied morality o Logical connection between law and morality o Does not mean that law = morality o But that no rule can count as a law unless what it requires is at least morally permissible o St. Augustine: “an unjust law is no law at all”  Positivism: law is a type of social technology o Keep law & morality separate to avoid confusion Natural Law is…  Not made by human beings o Divinely ordained? Law of universe?  Universal and eternally true o The same for all human beings and at all times o An unchanging rule or pattern that it is our (human) task to discover  A means by which human beings can rationally guide themselves to realize their potential Classical Natural Law  Greek and Roman thinkers Plato, Aristotle, and Cicero  Medieval Christian theologian, St. Thomas Aquinas  Wanted a new system, where people obeyed the law out of respect/recognition that it was morally correct, and our (moral) duty to obey  Asked: Why (morally) ought one obey the law?  Answered: One is obligated to obey the law only if the content of the law is itself moral (166)  Law is connected to morality, but what is moral? o Morality is related to the natural order o Moral duties can be determined by examining the natural world to find the “natural” or “god-given” relationships inherent in nature  Based on the presupposition that: o Nature has a fixed set of ends or purposes (essence) for human beings o Moral duty consisted in acting in accord with these purposes St. Thomas Aquinas  Immensely influential philosopher and Christian theologian 2350 Law and Society Tuesday October 22, 2013 Lecture 7: NATURAL LAW and LEGAL POSITIVISM  Aquinas distinguishes four kinds of law: 1) Eternal law  the decree of God that governs all creation 2) Natural law  eternal law revealed to humans through reason 3) Human law  natural law applied by governments to society 4) Divine law  law revealed in scriptures  Asserted that a norm that does not conform to the natural law cannot be legally valid: “an unjust law is really no law at all”  “Moral duty consisted in acting in accord with the *essential purposes implanted by God in nature], and we were supposed to discover the essential purposes of creatures such as ourselves. The virtuous human life consisted of living consistently with our natural (perhaps God-designed) function, and systems of social coercion were properly called “legal” only if consistent with such functions” (166). Critique of Law to Morality  Is the linkage of law to morality tenable? o HLA Hart: the concept of legal obligation is different from the concept of moral obligation o There is law that is morally neutral, morally admirable, and morally bad  * Does the morally admirable qualify as law?  * How does natural law theory require us to obey morally neutral law?  -- There are alternative ways of finding a moral obligation to obey the law. G.E. Moores “Naturalistic Fallacy”  Whenever a philosopher attempts to prove a claim by appealing to a definition of the term “good: because it is natural, s/he is committing a naturalistic fallacy o i.e. based on the assumption that natural is good; unnatural is bad  Creates logical looseness in any account of duty  Often appears arbitrary (who decides what is un/natural?)  Natural law as mechanism for living a virtuous life, but st o Offers clarity at price of uselessness (i.e. Aquinas’ 1 principle: “Do good and avoid evil”) Human Rights as Natural Rights?  Individual “natural rights” next stage in natural law  Fundamental entitlements (e.g Freedom and dignity) of humans based on reason, and distinctness of humans  Ground of Enlightenment, French and American Revolution 2350 Law and Society Tuesday October 22, 2013 Lecture 7: NATURAL LAW and LEGAL POSITIVISM  Do we really want to say that Natural l
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