“Natural law overstates the relationship between law & morality, but positivism underestimates the importance of the relationship?”
by James Eglinton
The realm of jurisprudence is the minefield of legal philosophy that indistinctly lingers in nature, refusing to fit neatly into the dichotomy drawn between art forms and science. Exploring the essence of law and its working, jurisprudence permeates every aspect of human conduct, probing the entire corpus bonos mores of society.
What rights should be granted to individual persons? From where does ‘law’ gain its authority? Is ‘law’ a purely formal context? How should ‘law’ be created? All are key issues pondered in the field of jurisprudence. However, the thrust of this essay is in examination of the statement; “Natural law overstates the relationship between law and morality, but positivism underestimates the importance of the relationship.”
John W. Whitehead, an American jurisprudential author, was certainly right when he called the concept of natural law “one of the most confused ideas in the history of Western thought”[i]. Among the most difficult topics within the sphere of jurisprudence, the term ‘natural law’ verges on bankruptcy – it is an idiom open to broad interpretation. It is often poorly understood, and while certain key claims can be derived from all natural lawyers, many natural law interpretations serve only to muddy, rather than clear, the water.
Natural lawyers rarely agree on the particulars of their belief, but four claims are consistently made in regard to natural law;
Firstly – there are immutable principles of law which exist as part of the natural realm; they define what is right, just and good for man; they are the standard he must adhere to in his actions.
Secondly – these unchangeable principles are discoverable by all men through the right use of reason.
Thirdly – all men (in all places & at all times) are subject to these principles.
Fourthly – laws created by the state are only have jurisdictional primacy when they are in accordance with the principles of law in nature.[ii]
The very essence of natural law is that certain legal principles are knitted into the nature of things & that everyone can discover these principles through reason. As these principles are uncovered by reason (as opposed to senses), natural law is radically different from the pragmatism of positivism, and (according to it’s own standards) is free from the yoke of empirical proof necessitated by positivist legal theory. Natural lawyers hold such truths to be self-evident. They are laws inherent in the heart of man. The American Declaration of Independence states, “We hold these truths to be self-evident”. Natural lawyers would hold this to be the status of all life’s fundamental values. Because of their nature as self-evident, the principles of natural law must simultaneously act as their own evidence
The most schismatic feature present within the sphere of natural law is that of origins – what is the source of natural law? Although truths which are self-evident and discovered by reason require no supernatural revelation to be made known, identifying the source from which natural law emanates is a massively important task. If natural law does come from Almighty God, it must be of eternal significance and must truly be subjective to all. However, if it can be proved that the esoteric concept of natural law is merely the propagation of man’s intellect, its nature surely becomes objective, and its primacy to all is lost.
The key division which must be made is whether natural law is theistic or atheistic. Only once this distinction is clear can the issue of the relationship between law and morality be examined.
Thomas Aquinas (1225-1274), the medieval Roman Catholic scholar, is responsible for the development of what is commonly perceived to be the theistic doctrine of natural law. However, it should be noted that the theory of natural law existed in Greek and Roman cultures long before Aquinas finished his Summa Theologicae. Aquinas was the first scholar to try and marry existing Roman/Hellenistic ideology with biblical religion.
Marcus Tullius Cicero (106-43 B.C.) – a Roman stoic (pantheistic) philosopher, gives a good account of the type of natural law which Aquinas attempted to graft into medieval Christianity[iii]. (Cicero’s teaching on natural law was hugely influential on Justinian’s codification of Roman law[iv]).
Aquinas’ goal was undoubtably to bridge the gap between Greek natural law theory and Christian theology. He tries to do this by laying down a triune system of laws – eternal, natural and human. Although he would vehemently deny this charge, it can be said that Aquinas set out to create a civil system based (perhaps unwittingly at first) on man. Due to his foundations in Roman Catholic theology, the division between eternal, natural & human law was a necessary one which had to be made. By the time of Aquinas, the Roman Catholic Church had adopted a semi-pelagian view of human nature (they had moved from the Biblical doctrine that every part of man – including his reason – had been fully infested by sin). Aquinas had come to believe that the special revelation which is Scripture only had jurisdiction over religious/church matters (and in this context, revelation only came through the opinions of the institutional church – the pope, church councils). He believed that natural revelation could clearly explain all other matters (civil law, government).
When these interesting ideas on human nature are combined with Aquinas’ dichotomy of revelation, the conclusion which is reached is that without natural law, there is no way to translate divine law (which isn’t Scripture) into human law. Aquinas’ rejected divine revelation from the Bible (at the most, rendering it to be as authoritative as reason). Thus, according to the theology of Aquinas, man is required to rely on his own reason to bring natural law “out” as the ‘middle-man’ between divine and human law.
This leads to the conclusion that man (and human reason) is the actual source of law – the reason of the Sovereign being particularly influential. Aquinas’ natural law, while initially appearing to eminate from God, really came from man. Thus, it is hard to grasp the relationship between law and morality in atheistic (and psuedo-theistic) natural law. If it is to be argued that morals are the law, then surely the relationship between law and morals cannot be overstated or understanded; it simply is.
If one is to examine the relationship between law and morality from a theistic natural law perspective based entirely upon Scripture, it initially appears as though the philosophy will rise above natural law and positivism – for example, to the Muslim, the Shari’ah (the Islamic law) isn’t a statement about the law, it is the law. Does the same attitude prevail when the Judeo-Christian jurisprudential scholar uses the Pentateuch (the first five books of the Old Testament) and the Torah (the substantive statement of written law – Exodus 21:1 to 22:17) as the objective standard for morality?
Firstly, the Christian viewpoint. When the Calvinistic (and Biblical) principle of sola Scriptura is applied, it must be concluded that; fallen man seeks to suppress the truth of God[v], the heart is deceitful above all things[vi], man’s heart is darkened and full of foolish imaginations[vii], man’s ways seem right to himself, but eventually lead to death[viii], man’s mind and conscience is defiled[ix], man’s carnal mind is not subject to the law of God, but is at enmity with it[x].
John Calvin of Geneva (1509-64), a second generation Protestant Reformer, deals with natural law in his Institutes of the Christian Religion[xi].
“Since man is by nature a social animal, he is disposed, from natural instinct, to cherish and preserve society; and accordingly we see that the minds of all men have impressions of civil order and honesty. Hence it is that every individual understands how human societies must he regulated by laws, and also is able to comprehend the principles of those laws. Hence the universal agreement in regard to such subjects, both among nations and individuals, the seeds of them being implanted in the breasts of all without a teacher or lawgiver.”
Calvin acknowledges that man is, by nature, a social creature, and that all men have an inherent knowledge of civil order which does not have to be taught (unlike Aquinas’ natural law, which must be interpreted to man by man’s own reason). Like his predecessor, Augustine of Hippo[xii] (354-430), Calvin drew a distinction between earthly things and heavenly things. He taught that natural law (which can be identified as “equity”) was normative in civil law and social ethics. The whole system of Calvin’s doctrine seems to undermine the natural law view of morality. Historically, Calvinists have tended to move away from natural law in favour of a more Biblical formulation of civil law[xiii].
If one was to follow Calvin’s teaching – and use the Bible as the sole objective standard for moral law, the relationship between law and morality becomes more and more complicated as the two become entangled. For the individual Calvinist, Biblical moral values are laws, and in this sense, morality and law combine. Neither one is subservient to the other. There is no symbiosis. Law is not superior to morality. Morality is not superior to law. The relationship between them is that law is morality, and morality is law, they are one and the same, and co-exist as a single entity. As for civil law, Calvinism seems to relegate that to earthly things[xiv].
Jewish jurisprudence also draws a distinction between the laws of heaven and earth – “exempt according to the law of man but liable according to the law of heaven”[xv]. Judaism offers a unique perspective on the relationship between law and morality – it recognises that there is a law which is enforced in the courts & a moral code which is without such sanction. Judaistic thought wanders off the beaten track when it acknowledges the common origin of law and morality, and the mutual tie that exists between them – this common origin has always existed as a yardstick within Judaism. However, the indigenous Jewish factor in the concept of the heavenly law is that while the court is unable to enforce certain moral commands[xvi], heavenly law (mingled with heavenly duty) compels individuals to practice such moral codes[xvii].
Moving on now to the question – does positivism underestimate the relationship between law and morality? While not on the same scale as natural law, “positivism” is still a fairly broad term, the most obvious division under the positivist banner being that of classical and modified positivism. Positivism isn’t so much an offshoot from natural law, rather it is natural law’s ‘polar extreme’ – fundamentally different in almost every way. At its most rudimentary level, positivism looks at what the law is, whereas natural law examines what the law should be. While purporting to value morality, positivism seeks to separate it from law. Classical positivism developed in the late 18th and 19th centuries – largely by two men, Jeremy Bentham (1748-1832) & John Austin (1790-1859). Bentham and Austin stood in opposition to the dominant quasi-naturalistic (and even slightly Thomistic) legal theory of their day (which was epitomised in Blackstone’s Commentaries[xviii]. Bentham even went as far as to describe Blackstone’s doctrines as “nonsense upon stilts”. The utilitarian Professor took issue with several of Blackstone’s teachings – claiming to find faults such as; the ambiguity of the word ‘law’ & the confusion caused by this[xix], the integral part played by ‘unscientific’ concepts[xx], a false portrayal of the law[xxi]. Bentham is a key figure in the secularisation of law[xxii].
John Austin is responsible for the exegesis and development of Bentham’s ideas – his most significant work in this area being The Province of Jurisprudence Determined (a series of his lectures complied & published), which is universally held to be most influential writing in the field of positivist legal theory in the era of classical positivism. The crux of Austin’s teaching is that law is a command given by the Sovereign & enforced by sanctions (Dicey disagrees with this, however, as he points out the ‘law as command’ theory works well for criminal law, but works poorly for private/civil law). The positivist isn’t concerned with morals, he simply wants to know is it law or not? Thus, unlike natural law, positivism endorses any law that has been properly ratified, regardless of moral content. In stark contrast to genuinely theistic natural law, positivism solely embraces laws set by political superiors to political inferiors.
Looking now to modern approaches in positivism – focussing in particular on Hart & Kelsen. HLA Hart’s brand of modified positivism seeks to improve on the theory of Bentham and Austin, which is untenable when put into practice as a complete body of positive law. Hart’s basic premise is that, “the most prominent general feature of law at all times & places is that its existence means that certain kinds of human conduct are no longer optional, but in some senses obligatory”[xxiii]. Hans Kelsen, a 20th century positivist, promulgated the pure law theory. Kelsen saw morality as a matter of opinion, and based his separation of law and morals largely on the coercive nature of the latter.
At the centre of positivism (classical and modern) is the notion that law is identified solely with formal sources – positivist legal theory sees no compulsory link between moral rules and law. This separation is obviously controversial, and the inevitable climax was reached in the law v. morals conflict in 1958, when Hart & Lord Devlin debated the issue (in the context of the legalisation of male homosexuality)[xxiv].
(In 1859, J.S. Mill claimed that society had no ‘right’ to make the individual conform to any moral code when his actions would cause no harm to others[xxv]. Mill reacts to the uniformity which morals impose – something he sees as robbing society of diversity. In Mills eyes, the notion of a common moral perception is an extremely repressive force.)
Following the implementation of the Wolfenden Report in 1958, Devlin publicly[xxvi] took issue with the form of supporting argument used by the Committee[xxvii] - which was essentially the same as Mill’s ‘harm’ principle (that there are some areas of morality which are outwith the jurisdiction of the law). Devlin rejected this individualism, stating that society must be founded upon shared moral foundations. However, one must then ask which morals these must be? The morals of the vacillating, fickle masses? The morals of the judges? Hart’s response was to comment on such ‘judicial moralism’ by quoting Lord Mansfield (in Jones v Randall[xxviii]). Hart continued to cite the cases Shaw v Director of Public Prosecutions[xxix] and R v Brown[xxx] in his attempt to show this judicial moral disapproval. He drew a distinction between moderate (which emphasises morality as the cornerstone of social cohesion) and extreme (which enforces morals because they are morals) moralism, rightly noting that Devlin was a moderate.
Hart attempts to attack Devlin’s position[xxxi], however it must be noted that Hart is guilty of misrepresenting Devlin, as Devlin doesn’t really advocate the level of popular morality which Hart criticises. Hart claims that there is no right of protection against being shocked, but does acknowledge that the law must protect those who are unable to protect themselves. This, he says, isn’t the fruit of moral obligation, but rather is the result of the harm principle. It should be noted that divergent theories of morality in law exist within the positivist sphere. Pure positivism would have to endorse the Nazi regime, as it was legal in its own context (though it can recognise Nazi-ism as immoral). This issue was debated by Hart and Fuller (Fuller being a considerably more left-wing positivist). Fuller argued that the Nazi regime was so intrinsically evil, its laws weren’t really laws at all. Hart, however, supported the Nazi regime legally (while condemning it morally).
The question of ‘how should the Nazis be (retrospectively) punished?’ forces Hart to acknowledge what has come to be known as the ‘minimum content of natural law’ theory[xxxii] – Fuller’s equivalent doctrine would be the ‘procedural morality of the law’, both of which seem slightly out of place and incongruent within the whole body of positivist theory, which must lead to the conclusion that law and morality cannot be entirely separated.
Thus positivism vastly underplays the gravity of the relationship between law & morality. As has been said earlier in this essay, natural law is an extremely broad term. Atheistic natural law (something of a contradiction of terms) is now completely outmoded and has been subsumed by the teachings of men like Lon Fuller. Quasi-theistic natural law (such as that of Thomas Aquinas) can be said to underestimate the relationship between law and morality, as his branch of natural law is wholeheartedly man-centred. However, purely theistic natural law (such as that of John Calvin) appears to be absolutely unique in its understanding of law and morality. Calvinism rises above the petty interplay between law and morality, it rises above natural law and positivism, and seems to exist in a completely separate category.
[i] John W. Whitehead, The Second American Revolution (Westchester, IL: Crossway Books, 1982), 181.
[ii] William Halverson, A Concise Introduction to Philosophy (New York: Random House, 1976), 356
[iii] “There is in fact a true law - namely, right reason - which is in accordance with nature, applies to all men and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong. Its commands and prohibitions always influence good men, but are without effect upon the bad. To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly is impossible. Neither the senate nor the people can absolve us from our obligation to obey this law, and it requires no Sextus Aelius to expound and interpret it. It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law, eternal and unchangeable, binding at all times upon all peoples; and there will be one common master and ruler of men, namely God, who is the author of this law, its interpreter and sponsor. The man who will abandon his better self, and in denying the true nature of man, will thereby suffer the severest of penalties, though he has escaped all other consequences which men call punishment.”
[iv] Paul B. Henry, “Natural Law,” in Baker’s Dictionary of Christian Ethics, ed. Carl F.H. Henry (Grand Rapids: Baker Book House, 1973), 449.
[v] Romans 1:18
[vi] Jeremiah 17:9
[vii] Romans 1:21
[viii] Proverbs 16:25
[ix] Titus 1:15
[x] Romans 8:7
[xi] John Calvin, Institutes of the Christian Religion, Book 2, Chapter 2, Section 13 (Eerdmans, 1949).
[xii] See De Civiate Dei, where Augustine distinguishes lex aeterna from lex temporalis.
[xiii] For example, the Scottish Covenanters & the New England Puritans (Samuel Rutherford’s Lex Rex being a prime example), see Douglas Kelly, The Emergence of Liberty in the Modern World, (Phillipsburg, NJ; Presbyterian and Reformed (1992)).
[xiv] When Paul wrote to the Christians in Romans 13 about the duty of governments and the governed, he didn't make any references to the Old Testament Law. In 1 Corinthians 5:12, Paul asks the Christians, 'what business is it of mine to judge those outside the church?'
[xv] Bava Kamma 6:4, 6:16-17; 55b
[xvi] Such as Leviticus 19:18, “You shall love your neighbour as yourself.”
[xvii] Bava Kamma 6:6, also see Yam shel Shelomo (a compilation arranged by Solomon b. Jehiel (Maharshal) Luria).
[xviii] Sir William Blackstone being the first Vinerian Professor of Law at Oxford from 1758 to 1770.
[xix] Such as the laws of physics & civil laws.
[xx] Such as the will of God.
[xxi] Bentham alleges misrepresentation on the part of Blackstone, in portraying law as the fruit of judicial decision rather than commands issued by the Sovereign.
[xxii] This process of secularisation being evident even as far back as the 17th century in the work of Thomas Hobbes (1588-1679).
[xxiii] HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 6.
[xxiv] The debate came as a result of the Wolfenden Report (Report of the Committee on Homosexual Offences and Prostitution (Cmnd 245) (London: HMSO, 1957))
[xxv] JS Mill, On Liberty, ed. G. Himmelfarb (Harmondsworth: Penguin, 1974).
[xxvi] In his Maccabean Lecture on Jurisprudence, 1958.
[xxvii] See P. Devlin (Baron Devlin), The Enforcement of Morals (London: Oxford University Press, 1965).
[xxviii] Jones v Randall (1774) Lofft 383, at p. 385, that: “Whatever is contra bonos mores est decorum, the principles of our law prohibit, and the King’s court as the general censor and guardian of the public manners, is bound to restrain and punish.”
[xxix] Shaw v Director of Public Prosecutions  AC 220
[xxx] R v Brown  QB 491
[xxxi] “The central mistake is a failure to distinguish the acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond criticism and must never be resisted.” (Law, Liberty and Morality, p. 79).
[xxxii] In this context, Nazi law is so evil that, while it is enacted law, is immoral enough to warrant retrospective punishment.
· McCoubrey, H & White, N., Textbook on Jurisprudence (Blackstone Press, 3rd ed., 1999)
· Baker’s Dictionary of Christian Ethics, ed. Carl F.H. Henry (Grand Rapids: Baker Book House, 1973)
· John Calvin, Institutes of the Christian Religion (Eerdmans, 1949)
· Whitehead, John W., The Second American Revolution (Westchester, IL: Crossway Books, 1982)
· The Principles of Jewish Law (Keter Publishing House Jerusalem Ltd, edited by Menachem Elon, 6th ed., 1975)
· Kelly, D., The Emergence of Liberty in the Modern World, (Phillipsburg, NJ; Presbyterian and Reformed (1992)
· HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1961)
· JS Mill, On Liberty, ed. G. Himmelfarb (Harmondsworth: Penguin, 1974)
· Halverson, W., A Concise Introduction to Philosophy (New York: Random House, 1976)
· Devlin, P., (Baron Devlin), The Enforcement of Morals (London: Oxford University Press, 1965)
· The Holy Bible, New King James Version, Thomas Nelson Publishers
· Berkhof, L., Systematic Theology (Edinburgh: The Banner of Truth Trust, 14th ed. 1998)
· Thomas Aquinas, Treatise on Law (Summa Theologica)
· Hobbes, T., Leviathan, in The English Philosophers from Bacon to Mill, ed., Edwin A. Burtt (New York: Random House, 1939)
· Beaumont, P., Christian Perspectives on Law Reform (Carlisle: Paternoser Press, 1998)