Trial by slogan: Natural law and lex iniusta non est lex

Law and Philosophy

Volumn 19, Issue 4, 2000, Pages 433-449

  Russell, J S ^a  

^a UNIVERSITY OF BRITISH COLUMBIA   (Canada)

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[No Author keywords available]

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EID: 0034551095     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505077     Document Type: Article

References (39)

1. Norman Kretzmann, "LEX INIUSTA NON EST LEX: Laws on Trial in Aquinas's Court of Conscience," American Journal of Jurisprudence (1988): 99-121. Kretzmann's piece is now finding its way into philosophy of law anthologies and textbooks. See Joel Feinberg and Hyman Gross, editors, The Philosophy of Law, 5th edition, Belmont: Wadsworth, 1995, and John Finnis, editor, Natural Law, New York University Press, 1991.
2. Norman Kretzmann, "LEX INIUSTA NON EST LEX: Laws on Trial in Aquinas's Court of Conscience," American Journal of Jurisprudence (1988): 99- 121. Kretzmann's piece is now finding its way into philosophy of law anthologies and textbooks. See Joel Feinberg and Hyman Gross, editors, The Philosophy of Law, 5th edition, Belmont: Wadsworth, 1995, and John Finnis, editor, Natural Law, New York University Press, 1991.
3. Norman Kretzmann, "LEX INIUSTA NON EST LEX: Laws on Trial in Aquinas's Court of Conscience," American Journal of Jurisprudence (1988): 99- 121. Kretzmann's piece is now finding its way into philosophy of law anthologies and textbooks. See Joel Feinberg and Hyman Gross, editors, The Philosophy of Law, 5th edition, Belmont: Wadsworth, 1995, and John Finnis, editor, Natural Law, New York University Press, 1991.
4. John Austin, The Province of Jurisprudence Determined, edited by H.L.A. Hart, London: Wiedenfield and Nicolson, 1954 (originally published, 1832), pp. 184-191. For simplicity's sake, I shall overlook the theistic assumptions of many of the prominent positivists (including Austin) and natural lawyers and express their discussion of the relationship between law and morality in fully secular terms.
5. As cited in H.L.A. Hart, "Positivism and the Separation of Law and Morals," Essays in Jurisprudence and Philosophy, Oxford University Press, 1983, pp. 52-53.
6. H.L.A. Hart, op. cit., pp. 52-55. See also The Concept of Law, Oxford University Press, 1961, pp. 206-207.
7. H.L.A. Hart, op. cit., pp. 52-55. See also The Concept of Law, Oxford University Press, 1961, pp. 206-207.
8. Kretzmann, op. cit., pp. 102-104.
9. Kretzmann, op. cit., p. 103.
10. Here is Kretzmann's list of Aquinas's inclusion conditions for something being a law (op. cit., pp. 111-113): (A) A directive of reason. (B) Aimed at the common good. (C) Promulgated by the government. (D) Pertaining to a complete community. (E) Leading people to or restraining them from certain actions. (F) Having coercive power. (G) Intended to be obeyed. (A) and (B) = essential evaluative inclusion conditions. (C) to (G) = essential non-evaluative (formal) inclusion conditions which Kretzmann says "must be met for anything that is to count as a law at all . . .[Therefore] (A) and (B) are at issue only in case (C)-(G) have been met."
11. Andrew Altman, Arguing About Law: An Introduction to Legal Philosophy, Belmont: Wadsworth Publishing Company, 1996, p. 34. See also David Lyons, Ethics and the Rule of Law, Cambridge University Press, 1983, pp. 62-63.
12. Andrew Altman, Arguing About Law: An Introduction to Legal Philosophy, Belmont: Wadsworth Publishing Company, 1996, p. 34. See also David Lyons, Ethics and the Rule of Law, Cambridge University Press, 1983, pp. 62-63.
13. This is not quite what Kretzmann says. He says, for example, that a counterfeit dollar is not a dollar "in any respect" (op. cit., p. 104, original emphasis). This is a bit too strong, however. A counterfeit dollar may be a dollar in respect of appearance, materials, and even function. (Suppose for example that an employee at the mint stays behind to run off a few extra sheets of $100 dollar bills for personal use.) The disanalogy is simply that the counterfeit dollar lacks an essential non-evaluative inclusion condition for dollars, namely, that of having a certain pedigree; but we do not have to say that it is not a dollar in any respect whatsoever. Something else is true of certain bad laws: they meet the non-evaluative conditions but lack the relevant evaluative inclusion conditions.
14. Kretzmann, op. cit., p. 100.
15. Thus, Hart in "Positivism and the Separation of Law and Morals," op. cit., p. 81, states [T]here is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles. Natural procedural justice consists therefore of those principles of objectivity and impartiality in the administration of the law which implement just this aspect of law and which are designed to ensure that rules are applied only to genuine cases of the rule or at least to minimize the risks of inequalities in this sense. Hart immediately remarks that this minimum moral content of a legal system is consistent with the impartial application of the most "hideously oppressive" laws.
16. Supra, note 7.
17. A classic discussion of the artificial precision of earlier analytic approaches to definition is in Hilary Putnam's "The Meaning of 'Meaning,'" Mind, Language and Reality; Philosophical Papers Volume 2, Cambridge University Press, 1975. Philosophers from the ordinary language and non-analytic tradition generally, many of whom have been influenced by Ludwig Wittgenstein, are critical of the artificial rigidity of the analytic approach to meaning and definition.
18. Kretzmann never denies this. As mentioned already, his main aim seems to be to show that natural law theory faces no special impediment to moral assessment of laws.
19. Supra, note 7.
20. In fact, it is even possible for a natural lawyer to accept that the rhetorical value of the slogan is poor enough that it should be discarded for all practical purposes in favour of a strictly positivist method of assessing laws, that is, by looking at technically certifiable laws and considering their merits and demerits. This is still consistent with the truth of the claim that any technically certifiable laws that are evaluated as unjust are not genuine laws, even if legislators and others are not encouraged to draw this implication because it would tend to confuse them.
21. Kretzmann, op. cit., p. 105. Lyons, op. cit., pp. 62-63. Altman, op. cit., p. 34. John Finnis may be an exception, but this has raised doubts among many of his commentators as to whether he is a natural lawyer. See Natural Law and Natural Rights, Oxford University Press, 1980, ch. 1.
22. Kretzmann, op. cit., p. 105. Lyons, op. cit., pp. 62-63. Altman, op. cit., p. 34. John Finnis may be an exception, but this has raised doubts among many of his commentators as to whether he is a natural lawyer. See Natural Law and Natural Rights, Oxford University Press, 1980, ch. 1.
23. Kretzmann, op. cit., p. 105. Lyons, op. cit., pp. 62-63. Altman, op. cit., p. 34. John Finnis may be an exception, but this has raised doubts among many of his commentators as to whether he is a natural lawyer. See Natural Law and Natural Rights, Oxford University Press, 1980, ch. 1.
24. Kretzmann, op. cit., p. 105. Lyons, op. cit., pp. 62-63. Altman, op. cit., p. 34. John Finnis may be an exception, but this has raised doubts among many of his commentators as to whether he is a natural lawyer. See Natural Law and Natural Rights, Oxford University Press, 1980, ch. 1.
25. Kretzmann, op. cit., p. 105.
26. W.V.O. Quine, "Epistemology Naturalized," and "Natural Kinds," in Ontological Relativity and Other Essays, Columbia University Press, 1969.
27. Kretzmann, op. cit., pp. 114-121.
28. See, for example, Altman, op. cit., pp. 33-49, Hart, Essays in Philosophy and Jurisprudence, pp. 80-82, 111-113, Lyons, op. cit., pp. 7-10, 62-68, and Kent Greenawalt, Conflicts of Law and Morality, Oxford University Press, 1987, pp. 163-164.
29. See, for example, Altman, op. cit., pp. 33-49, Hart, Essays in Philosophy and Jurisprudence, pp. 80-82, 111-113, Lyons, op. cit., pp. 7-10, 62-68, and Kent Greenawalt, Conflicts of Law and Morality, Oxford University Press, 1987, pp. 163-164.
30. See, for example, Altman, op. cit., pp. 33-49, Hart, Essays in Philosophy and Jurisprudence, pp. 80-82, 111-113, Lyons, op. cit., pp. 7-10, 62-68, and Kent Greenawalt, Conflicts of Law and Morality, Oxford University Press, 1987, pp. 163-164.
31. See, for example, Altman, op. cit., pp. 33-49, Hart, Essays in Philosophy and Jurisprudence, pp. 80-82, 111-113, Lyons, op. cit., pp. 7-10, 62-68, and Kent Greenawalt, Conflicts of Law and Morality, Oxford University Press, 1987, pp. 163-164.
32. Cf. Hart, Essays in Jurisprudence and Philosophy, p. 113, and The Concept of Law, ch. 9.
33. Cf. Hart, Essays in Jurisprudence and Philosophy, p. 113, and The Concept of Law, ch. 9.
34. For example, a philosopher whose allegiance may be closer to a natural law outlook than is normally recognized is J.S. Mill. Mill is normally taken to be a critic of natural law (see Hart, The Concept of Law, pp. 182-183), but his account of practical reason suggests otherwise. According to recent scholarship, Mill holds that the principle of utility is the supreme principle of practical reason and morality is an aspect of that principle. Any unjust law will, therefore, violate both morality and fail as a proper expression of practical reason. See D.G. Brown, "Mill's Act-Utilitarianism," Philosophical Quarterly 24 (1974): 67-68, and David Lyons, "Mill's Theory of Morality," Nous 10 (1976): 101-120.
35. For example, a philosopher whose allegiance may be closer to a natural law outlook than is normally recognized is J.S. Mill. Mill is normally taken to be a critic of natural law (see Hart, The Concept of Law, pp. 182-183), but his account of practical reason suggests otherwise. According to recent scholarship, Mill holds that the principle of utility is the supreme principle of practical reason and morality is an aspect of that principle. Any unjust law will, therefore, violate both morality and fail as a proper expression of practical reason. See D.G. Brown, "Mill's Act-Utilitarianism," Philosophical Quarterly 24 (1974): 67-68, and David Lyons, "Mill's Theory of Morality," Nous 10 (1976): 101-120.
36. For example, a philosopher whose allegiance may be closer to a natural law outlook than is normally recognized is J.S. Mill. Mill is normally taken to be a critic of natural law (see Hart, The Concept of Law, pp. 182-183), but his account of practical reason suggests otherwise. According to recent scholarship, Mill holds that the principle of utility is the supreme principle of practical reason and morality is an aspect of that principle. Any unjust law will, therefore, violate both morality and fail as a proper expression of practical reason. See D.G. Brown, "Mill's Act-Utilitarianism," Philosophical Quarterly 24 (1974): 67-68, and David Lyons, "Mill's Theory of Morality," Nous 10 (1976): 101-120.
37. The example of J.S. Mill may be instructive. See supra, note 23.
38. Indeed, it is even closer if we think, as many commentators have, that Austin tends to over-estimate the threat to society from civilly disobedient acts.
39. I express my thanks to David Lyons and Colin Macleod for constructive and challenging comments on an earlier draft of this paper and also to audiences at the University of Victoria and at the 20th World Congress of Philosophy in Boston for their contributions. This paper is dedicated to the memory of Norman Kretzmann.