Natural Law Theory

The first topic we will be discussing in the Philosophy of Law course is "Natural Law Theory".

I have to admit that, when it comes to the philosophy of law, I tend to think that all major positions are correct. They do not have any substantive difference. They simply want to use terms in different ways. It is like the dispute as to whether Pluto is a planet. It is not a dispute about substance - about Pluto's size, the details of its orbit, its chemical composition, or any matter of fact. It is a dispute over how we want to use words. In the end, it really does not matter.

Actually, this is true on a surface level. When we dig deeper, we do find some substantive differences between those who tend to prefer different theories. One of those differences concerns the obligation to obey the law. There are those who hold that if something has been made illegal - then you ought not to do it. Others hold that there is no obligation to obey - and may be an obligation to disobey - an unjust law.

A paradigm example (and defense) of this right (duty) to disobey an unjust law can be found in Martin Luthar King's Letter from a Birmingham Jail.

King was arrested for breaking the law. That is to say, he broke the law, he was guilty, he did it on purpose, and without remorse. He argues that it was his right to do so - even his duty.

Specifically, he was in Birmingham, Alabama to lead protests against discriminatory laws and practices. The city obtained an injunction against these protests. King announced that he would disobey the injunction. The Alabama Christian Movement for Human Rights and Southern Christian Leadership Conference went ahead with the protests. Over 50 people, including King, were arrested and charged with demonstrating without a license.

It is while in prison that King wrote his famous letter, which included his defense of breaking the law.

One may well ask, "How can you advocate breaking some laws and obeying others?" The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that "An unjust law is no law at all."

This line, "unjust law is no law at all" appears to be a contradiction. It is like saying that a blue coat is not a coat. How can it be a blue coat if it is not a coat?

Obviously, King is using two different definitions of "law".

The first definition of law, what we may call Law1, refers to statues, regulations, constitutions, executive orders, and the like that constitute written law. This is also known as "positive law," the term 'positive' being taken from the term 'to posit' or to declare or state. It is the law as written.

The second definition of law (Law2) means that which is binding on the conscience - that which a person ought to do.

And sometimes what the law tells a person what he ought to do (or what he ought not to do) is not, in fact, what he ought to do (or ought to refrain from doing).

From St. Thomas Aquinas:

Law is a rule and measure of acts, whereas man is induced to act or refrain from acting: for 'lex' (law) is derived from 'ligare' (to bind), because it binds one to act.

Aquinas is concerned with a particular kind of binding - binding on the conscious. To say that unjust statues are not laws is to say that they are not binding on the conscience. They do not bind one to act.

There is a certain sense that what binds one to act can be found in statute. In order to accomplish certain goals, there must be some coordination among individuals. This requires getting together and making some decisions. If there are a group of people in a boat, then "getting somewhere" requires some system for deciding where to go. If the decision is to go east, then this may bind the conscience of individuals to do their part in travelling east. A statute may declare that the village will pool its resources for the building of a granary - which will be of a particular size and built in a particular location. In this case, the obligation of each individual within the community would be to contribute to the construction of a granary of that size in that location.

However, if the law commands a person to do that which is unjust - to treat one's neighbor with cruelty, for example - or a statue subjects one to inhumane treatment - then the statute is commanding that person to do that which conflicts with what natural law would bind the conscience to. And, when that happens, natural law binds the conscience, not the statute. The law1 is no more law2 than commands of a criminal demanding that you surrender your property at the point of a gun.

In principle, this sounds fine. However, what happens when a person thinks that what binds the conscience is, itself, injustice. What binds the conscience of a racist is to maintain his race's position of privilege and superiority. What binds the conscience of the theocrat is that his religion be forced on others (for their own good).

It is not an objection against a system that some people who use it will get the wrong answer. It is no objection to math that some people, when using math, make a mistake and get a wrong answer. We have no reason to prohibit the use of addition because somebody, somewhere, might add 2 + 2 in some important situation and get 5.

Desirism has something in common with natural moral law theory. Desirism says that the right act is the act that a person with good motives and lacking bad motives would have done in the circumstances. Whether people generally have a reason to promote a universal aversion to breaking the law depends on the quality of the law. If the law is generally good, then there are reasons to promote an aversion to breaking it, even if this aversion sometimes applies to a few bad laws in a generally good system. However, if the laws are generally bad, then there is no reason to promote an aversion to breaking the laws. There may even be reason to promote a desire to do so.

So, desirism agrees with natural law theory that one has to look at considerations outside of the law itself to determine what is binding on the conscience - what a good person would do. A good person does not limit his choices merely to a consideration of what is legal and illegal. Particularly if the law commands one to commit an injustice, a person with good desires and lacking bad desires may well find herself in a position where violating the law is the best option.