标题: [分享]*****Natural***Law******** [打印本页] 作者: 無窷尐囡 时间: 2008-12-1 12:12 标题: [分享]*****Natural***Law******** 自然法，我的期待是，能带给我关于自然人性的更多知识。
The term \"natural law\" is ambiguous. It refers to a type of moral theory, as well as to a type of legal theory, but the core claims of the two kinds of theory are logically independent. It does not refer to the laws of nature, the laws that science aims to describe. According to natural law ethical theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings. According to natural law legal theory, the authority of at least some legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. There are a number of different kinds of natural law theories of law, differing from each other with respect to the role that morality plays in determining the authority of legal norms.
1. Two Kinds of Natural Law Theory
At the outset, it is important to distinguish two kinds of theory that go by the name of natural law. The first is a theory of morality that is roughly characterized by the following theses. First, moral propositions have what is sometimes called objective standing in the sense that such propositions are the bearers of objective truth-value; that is, moral propositions can be objectively true or false. Though moral objectivism is sometimes equated with moral realism (see, e.g., Moore 1992, 190: \"the truth of any moral proposition lies in its correspondence with a mind- and convention-independent moral reality\"), the relationship between the two theories is controversial. Geoffrey Sayre-McCord (1988), for example, views moral objectivism as one species of moral realism, but not the only form; on Sayre-McCord\'s view, moral subjectivism and moral intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law moral theory is committed only to the objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: \"the rule and measure of human acts is the reason, which is the first principle of human acts\" (Aquinas, ST I-II, Q.90, A.I). On this common view, since human beings are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of human beings (thus, \"natural law\").
But there is another kind of natural law theory having to do with the relationship of morality to law. According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their \"authority\" not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards. Otherwise put, some norms are authoritative in virtue of their moral content, even when there is no convention that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality intersect in some way is called the Overlap Thesis.
As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the two theories, strictly speaking, are logically independent. One can deny natural law theory of law but hold a natural law theory of morality. John Austin, the most influential of the early legal positivists, for example, denied the Overlap Thesis but held something that resembles a natural law ethical theory.
Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of a norm depends on whether its content conforms to morality. But while Austin thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarianism almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that utilitarians sometimes seem to suggest that they derive their utilitarianism from certain facts about human nature; as Bentham once wrote, \"nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne\" (Bentham 1948, 1). Thus, a commitment to natural law theory of morality is consistent with the denial of natural law theory of law.
Conversely, one could, though this would be unusual, accept a natural law theory of law without holding a natural law theory of morality. One could, for example, hold that the conceptual point of law is, in part, to reproduce the demands of morality, but also hold a form of ethical subjectivism (or relativism). On this peculiar view, the conceptual point of law would be to enforce those standards that are morally valid in virtue of cultural consensus. For this reason, natural law theory of law is logically independent of natural law theory of morality. The remainder of this essay will be exclusively concerned with natural law theories of law.
2. Conceptual Naturalism
a. The Project of Conceptual Jurisprudence
The principal objective of conceptual (or analytic) jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, conceptual jurisprudence seeks \"the essence or nature which is common to all laws that are properly so called\" (Austin 1995, 11). Accordingly, the task of conceptual jurisprudence is to provide a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world.
While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that can be served by conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain what is important or essential about a class of objects; and (4) to establish an evaluative test for the concept-word. Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law have traditionally been characterized in terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law have traditionally been divided into two main categories: those like natural law legal theory that affirm there is a conceptual relation between law and morality and those like legal positivism that deny such a relation.
b. Classical Natural Law Theory
All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non-conventional relation between law and morality. According to this view, then, the notion of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted.
The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can \"think of eternal law as comprising all those scientific (physical, chemical, biological, psychological, etc.) \'laws\' by which the universe is ordered.\" Divine law is concerned with those standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation.
The natural law is comprised of those precepts of the eternal law that govern the behavior of beings possessing reason and free will. The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational nature of human beings. Good and evil are thus both objective and universal.
But Aquinas is also a natural law legal theorist. On his view, a human law (i.e., that which is promulgated by human beings) is valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the point: \"[E]very human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law\" (ST I-II, Q.95, A.II). To paraphrase Augustine\'s famous remark, an unjust law is really no law at all.
The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William Blackstone describes the thesis, \"This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original\" (1979, 41). In this passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law.
It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law. While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles. There will still be coordination problems (e.g., which side of the road to drive on) that can be resolved in any number of ways consistent with the set of moral principles. Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. Rather she claims only that such discretion is necessarily limited by moral norms: legal norms that are promulgated by human beings are valid only if they are consistent with morality.
Critics of conceptual naturalism have raised a number of objections to this view. First, it has often been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons. As Austin petulantly put the point:
Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity (Austin 1995, 158).
Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is always possible for a court to enforce a law against a person that does not satisfy Austin\'s own theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy (1990, 18) put the point:
The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate the law and determine our moral obligations with respect to the law) are actually rendered more difficult by its collapse of the distinction between morality and law. If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law.
There are a couple of problems with this line of objection. First, conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of moral criticism: given that the norm being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not legally valid. Thus, the state commits wrong by enforcing that norm against private citizens.
Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law by pointing to its practical implications ?a strategy that seems to commit a category mistake. Conceptual jurisprudence assumes the existence of a core of social practices (constituting law) that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications.
A more interesting line of argument has recently been taken up by Brian Bix (1996). Following John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally:
A more reasonable interpretation of statements like \"an unjust law is no law at all\" is that unjust laws are not laws \"in the fullest sense.\" As we might say of some professional, who had the necessary degrees and credentials, but seemed nonetheless to lack the necessary ability or judgment: \"she\'s no lawyer\" or \"he\'s no doctor.\" This only indicates that we do not think that the title in this case carries with it all the implications it usually does. Similarly, to say that an unjust law is \"not really law\" may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with \"higher law\" (Bix 1996, 226).
Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- naturalism of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be made in favor of Bix\'s view, the long history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely.
作者: zhouyenator 时间: 2008-12-1 13:43
A lot of baloney together with a few grammar mistakes.作者: 無窷尐囡 时间: 2008-12-1 16:26
What's that?
