Natural Law and Natural Rights
· Objective goods must be identified if we are to make human action intelligible.
· Morality tells us how we should go about pursuing these objective goods (morality is part of what Finnis calls “natural law”).
· Morality requires us to pursue the common good within our community.
· Enabling people to pursue their own reasonable objectives requires some degree of collaboration and co-ordination of conduct (posited law).
Sources and content of natural law
· The principles of natural law are:
a) a set of basic practical principles used by everyone in deciding what to do;
b) a set of basic methodological requirements of practical reasonableness used to distinguish sound from unsound practical thinking and which provide criteria for distinguishing between actions that are morally right and morally wrong;
c) a set of general moral standards – (NLNR p. 23).
· The relationship between positive and natural law:
The purpose of positive law is to supplement natural law by adding compulsion and forcing selfish people to act reasonably.
Although positive law is derived from natural law it is not entailed by it (it is open to very many choices in implementation).
But these choices must be consistent with the basic principles of practical reasonableness.
· Positive law is legally binding (in the focal moral sense) only if
1) the law originates in a way that is legally (in the strict legal sense) valid and
2) the law is not materially unjust either in its content or in the circumstances of its positing
· There may also be a moral obligation to obey even an unjust law if disobedience will undermine an otherwise moral system
· There are seven basic objective goods:
4) aesthetic experience (i.e. beauty)
5) sociability (i.e. friendship and community)
6) practical reasonableness
· Objective goods are:
a) intrinsically good, not instrumentally good.
c) equally fundamental
Objective goods form the pre-moral “first principles of natural law” from which we can work out the moral natural law by applying the requirements of practical reasonableness, which tell us how to go about achieving these objective goods
The requirements of practical reasonableness
There are 9 requirements of practical reasonableness:
1) a rational plan of life
2) no arbitrary preferences among values
3) no arbitrary preferences amongst persons
7) respect for every basic value in every act
8) the requirements of the common good
9) following one’s conscience.
The requirements of practical reasonableness provide a method of moral reasoning.By applying these requirements one arrives at the moral choice for action or inaction among competing alternatives
Community and the common good
Community is a form of sociability and therefore also one of the objective goods, and community consists in a shared purpose, which is the pursuit of the common good. The common good is the set of conditions that enable members of a community to attain for themselves reasonable objectives. Law, justice, and rights are the conditions that enable the achievement of the common good.
· The principles of justice are simply the concrete implications of the general requirement that one must foster the common good in one’s community.
1) it looks to the common good, as opposed to self-interest
2) and to the common good, which entails reference to the 7 basic objective goods of human existence
· There are two kinds of justice: distributive justice and commutative justice.
· The purpose of law:Law brings definition, specificity, and clarity and thus predictability into human interactions by way of a system of rules and institutions.
· Five formal characteristics:
1) rules of law regulate both human interactions and the institutions that create the rules and adjudicate disputes over the rules.
2) rules validly created remain valid until validly changed or terminated
3) rules establish how individuals may perform juridical acts
4) rules provide a present reason for acting in accordance with a way previously provided for
5) there are no gaps – where there are no rules there are procedures (other rules) for creating rules to fill these gaps
To these formal characteristics are added Fuller’s 8 procedural desiderata.
Friday 24th July 2020
Dr Jorge Emilio Núñez