Natural Law & Rights

There is no shortcoming in the theories of Aquinas and Finnis can be found on their theory of naturalistic conception of morality and law. The natural tradition has never suffered from any misunderstanding that it recognizes, but reject unjust law is no law when any issue in question. The two types of natural law theories provided by Finnis and Fuller are in complexity when they do injustice.

Classical natural lawyers failed to value political order & stability:- Historically, ancient Greeks from 16-17^th centuries started to think that legal theory means law is the practical application of morality. It begins with Plato, Aristotle, Scotics and they described it as how ought a man to live. Plato was concerned about Justice & other absolute values of justice.  Justice brings morality to the values of political order & stability. So, we cannot say that Plato failed to recognize the value of political order & stability. Aristotle said that to understand man’s telos means goals or purpose that reject his nature. Thomas Aquinas reconstructed from Greek to Rome to Christian teleology by his work that law is the Grace of God and not to conflict or abolish man’s nature. It was modified Aristotle that man’s end is not only to live socially & seek knowledge, but also to live in a Christian community. Here, it is evident that Thomas Aquinas failed to recognize the natural theory of law. There are many religions we have in our world. Morality deals with freedom & liberty. Professing religion must be free in any society. If people are compelled to live in Christian community without their will & wish, then that is immoral. So, Aristotle was open minded, but Thomas Aquinas failed to recognise the value of political order & stability a little. Scotics said by reason man could determine rights that transcended in particular culture & therefore universally applicable. This is a very complex issue to be determined because when man determines rights which are particular to any culture, if that is moral then that brings value to political order & stability, but if that is immoral, then that law can overturn the political order & stability.

Aquinas & Finnis failed to on naturalistic conception of morality & law:- Thomas Aquinas reconstructed from Greek to Rome to Christian teleology by his work that law is the Grace of God and not to conflict or abolish man’s nature. It was modified Aristotle that man’s end is not only to live socially & seek knowledge, but also to live in a Christian community. Here, it is evident that Thomas Aquinas failed to recognize the natural theory of law. There are many religions we have in our world. Morality deals with freedom & liberty. Professing religion must be free in any society. If people are compelled to live in Christian community without their will & wish, then that is immoral. Here, we can say that Aquinas failed in theory of natural laws & natural rights to view the proper conception of morality and law. Moreover, Thomas Aquinas defined two sources of law. Firstly, Specifio means specified or laws laid down or deduced from natural law and secondly, Determinatio means determination or man decided which is compatible with natural law which is not different than each other. This theory also proves that Aquinas failed to view naturalistic conception of morality & law properly, because we derived morality from our cognitive development. Cognitive development always speaks about guilty mind differentiating between what is right and what is wrong. When morality or the natural laws are codified in statute then that is called positive laws. When positive laws are tested & pronounced in judgments that Aquinas is describing as determination. Judges decide cases & fill-up gaps by using the doctrine of penumbra where there is any moral disagreement. So, Aquinas failed to describe the theory of naturalistic conception of law and morality properly. Again, He divided this orders of law into further four wings, as follows:

• Eternal Law means universe governed or divine law:- Human being are developed through evolution which says that nature by interaction between carbon, sulfur and water complex life evolved in nature. Nature did not provide us any rules and if we get any law from God, those speak about morality always. Those moral laws are called natural laws.
• Natural law means human reason & Free will:- Natural laws are morality which establish free will depending upon reason provided human because except human being there is no other complex life we have in our Earth which can tell us simultaneously what is right & wrong.
• Human law means rules, regulations, using reason and deduced from natural law:- These are positive laws. Natural laws when codified or written, then those are known as positive laws.
• Divine law which revealed God to men:- Again, human beings are evolved through nature by reaction between carbon, sulfur and water. Nature did not provide us any rules and if we get any law from God, those speak about morality always and morality is natural law. So, we can firmly say that that Thomas Aquinas failed to describe the view of naturalistic conception of morality and law properly.

Finnis considered one very important factor that cognitivists says that human must know moral values or & principles to judge and what is just expressions of our emotional attitudes. The Cognitive Theory says that we derived morality from our cognitive development. Cognitive development always speaks about guilty mind differentiating between what is right and what is wrong. So, Finnis never failed to recognise the difference between emotion and reason and so he was able to recognise the naturalistic conception of morality & law.

Common Good & positive law by Finnis:- John Finnis was a realist. The theory of good life was provided him because he drew a relation between common good and positive law. His theory of scepticism or realist describes that moral values & principles does exists in law. The requirement of morality deals with Fact means value distinction, description & prescription, factual & normative, describe some aspects of reality & evaluate that or prescribe behaviour. The famous theory of John Finnis’s Natural Fallacy says that Natural rights are generally decided by what rights are ought to be. It true that Finnis’s theory is more relavent than before because it says that in the period of crisis, we need agreement on basic values that we do not allow the law to endanger. Law can never allowed be to be in endanger. Agreements are also a part of law. At the period of crisis, if the agreement of basic values are not made and continued with morality, then that brings danger for human beings. Then those immoral agreements must save human beings by application of laws because laws always uphold that what is morally and ethically correct for human survival.

Criticism By H.L.A. Hart:- This theory of good life was criticized by H.L.A. Hart. Hart says that legal realism deals with nature of legal reasoning. There is a difference between what law is & how it expressed. Positivists are formalising & ignoring the facts of adjudication & judicial law making. Penumbral cases are required to settle the meaning of legal rules. Hart was very profound interest on the requirements of Procedural Justice. According to Hart procedural justice satisfies the demands of morality, important idea of fidelity to law, obedience with moral justification.

Misunderstanding about unjust laws are not laws:- Critics claims that there is a principle that unjust laws are not laws, but sometimes that is not maintained by law. This is not true at all. The doctrine of Lex injusta non est lex means that an unjust law is not a law. Unjust means unjust according to the principal of morality or natural law. The natural Law originally means that it is a general moral theory that explains the nature of morality. Principally natural law describes theory of morality & not a theory of law. If there is a law which is immoral in nature, that can be set aside by judicial legislation.

Complexity modern Natural Law theory:- There are two types of theory, we can find in modern natural law theory. Firstly, Finnis’s natural law theory which emphasis on content and secondly, Fuller’s theory of inner morality which emphasis on the form. Fuller provided the most important theory of morality which deals with the rule of law. His theory of morally is very sound about aspects of governing by rules which give raise to a new theory which is the theory of Procedural Natural Law theory. This Procedural Natural Law theory deals with substantive law & to assess them with requirement of law-making and administration. Critics say that complexity of modern societies need the later and not the former which is not at all correct because these are interrelated. Fuller provided eight principles of inner morality:

• Be promulgated;
• Not be retroactive;
• Be general;
• Be clear;
• Not be inconsistent;
• Not require the impossible;
• Be ‘congruent’ or consistent with official action;
• Be reasonably stable that is, not change too frequently.

Law is a scheme of social justice & for welfare of society. If any law is not promulgated, or contains any deficiency because of its retroactive nature or not general do discriminations or not clear or consistent or unstable or impossible in nature, then this form of law can seek the help of content of law to be tested. Human beings made mistakes and if their cognitively has not been developed properly, then while seeking help of content natural law, if morality has not been identified correctly, that can frustrate the whole form of natural law. So, neither the content of natural law, nor the form of natural law can be taken lightly. Complexity can arise from any these forms.

Conclusion:- We can conclude by saying that may be Thomas Aquinas failed to describe properly the naturalistic conception of natural laws, Finns never failed to so and the theory of modern natural rights argues that complexity can arise from form of natural laws, no matter it is the content or the form.

Reference:-

• Jurisprudence: From the Greece to post-modernism.