Whether Natural Law Has Faded to Nothing - Coursework Example

Natural Law’ Has Faded To Nothing Name: Lecturer: Course: Date: Question 4: ‘Law could for long retain some grand, if diminished aura of divine sanction. Today we must say that even the faintest glow of that aura is now extinguished, like a rainbow that we have watched fade to nothing in the sky. Let it be that law is in truth an institution fashioned by the hands of men.’ Lord Radcliffe ‘The Lawyer and His Times’: Opening Address at 150th Anniversary of the Harvard Law School.1967. Critically discuss the main reasons why the once dominant idea of human law as reflecting a God created ‘natural law’ has faded to nothing ‘like a rainbow in the sky.’ Introduction The real meaning of natural law is that the state, its ruler and its legislator are subject to the law of God or the moral law. Hence, rather than become a creator of law that reflects self-interest or the interest of the entity he represents, a ruler’s function essentially becomes interpretation of the Higher Law, or the Law of God1. Accordingly, the government’s chief principle is that authority and legitimacy should be rationalized strictly on moral grounds. For a long time, Natural Law retained relevance in prescribing the set of rules and regulations imposed by the state. However, Natural Law has slowly faded. This paper shows that man’s invention of laws and deliberate action to believe in his intelligent judgment rather has led to the fading of the once dominant idea of human law as reflecting a God created ‘natural law’. Daring popularity of Positive Law The prevalence of Positive Law in the contemporary has contributed to the fading of human law, as reflecting a God created ‘natural law’. Julius Stone showed that Positive Law has gained dominance over Human Law in Natural Theory, in the modern day society2. There are two types of Natural Law theories, that of morality and that of positive law. The two contradict each other3. Positive laws are controlled and formulated by individuals who are superior politically. These individuals are the ‘sovereign” people who are not to obey anyone else and who should be obeyed by everyone else4. For instance, in defining Natural Theory of Law, Stone suggests that Legal systems have a duty to sustain justice5. St Thomas Aquinas (1225-1274) identified four types of laws, namely natural divine, human and eternal law. Human law regulates reason for a common good, proclaimed by an individual who cares for the community. On the other hand, eternal law refers to God’s plan for the entire creation6. Natural law is an element of eternal law that is applicable to human being and which is interpreted independently by human reason. It is made up of the proper moral principles, such as prohibiting the killing of a fellow human being or using evil to achieve goodness. Divine law is a component of eternal law, which proposes that God reveals himself to human beings through the Scripture7. According to St Thomas Aquinas (1225-1274), human laws are only legitimate when they do not contradict divine or natural law8. Freedom to express personal desires Men’s freedom to express their own desires in the modern day society has vastly contributed to the fading away of the Natural Law. The natural laws of society state that decisive rule of fairness and total injustice or moral goodness and evil are embedded in the hearts or men that lighten and guides their conscience9. According to Horton, the light is only weakened or degraded by their disorderly passions. The underlying objective of positive laws is that this kind of disorderliness is based on opposition to imposing severe punishment to perverse men10. Hence, from Horton’s statement, it can be perceived that what is really necessary for a nation to prosper is to keep the society safe when the desires of men are kept under check11. However, the modern day society had transformed into one that promotes individual expression of rights. In which case, since men have the right to express their true desires, they have sought to make and interpret their own laws rather than to interpret the Law of God. This can be argued on the basis of the tide of atheism as noted by Hutchison. According to Hutchison, after the Great War in1918 when a Manhattan tabloid called the “Time” asked readers whether God was dead, it spelled out man’s desires to question the existence of God. As stated by Hutchison, such human tendencies have questioned the validity of Natural Law, leading to its irrelevance and man’s willingness to invent own laws12. Indeed, such trends were further precipitated by British scholar Peter Watson’s works 13that questioned the existence of God. This makes the question of God’s nonexistence to be an issue of modern society Present-day emphasis on Human Rights The emphasis on human rights in the modern society has prevailed over the once dominant idea of human law as reflecting a God created ‘natural law’. This is reflected in Julius Stone’s works when he suggested that the concept of human rights should be perceived as dominant political moral idea that rides on universal acceptance14. Rather than Natural Law, Human rights are currently viewed as the core moral issues in the modern society, as well as, the international moral principle. Additionally, even as the claims that the discourse of human rights is currently a predominate mode of moral and legal principle, edging out the Natural Theory, the increased recognition of human rights to be the universal secular principles with major implications on the law cannot be overlooked. While the concept of human law has drawn its relevance from a range of natural law theories, it can still be argued that the human-dignity-centric approach, which denotes forms of human self-interest, is what has triggered the modern-day human rights movements and ultimate endorsement in the UN Charter, among other human rights covenants, treaties, conventions and declarations15. Destabilisation of the status quo Undermining the status quo in the modern society has in turn undermined the relevance of Human Law. The Natural Law is fundamentally a “radical ethic,” as it advocates for maintenance of the existing status quo. Hence, within the context of State action, it presents people with a set of norms that can be radically dispute or contradict the existing invented positive laws with the potential to tilt the status quo, and which are enforced by the state16. Conversely, since the State apparatus has dominant supreme power and arbitrary influence, in the modern society, the relevance of Natural Law is in itself jeopardised. Indeed, the legal principles of modern societies are established in the way: Through compliance with the traditional customs of a community, compliance with the arbitrary rule of the State machinery and lastly, by using man’s reasoning17. Here, arbitrary power refers to the power that is not subject to the guidance of morality, reason and the law. Rather, it is subject to the changeful feelings, will attitudes and emotions of individuals who maintain the position of power18. Imbalance between invention of rights and discovery of rights The concept of invention of rights and discovery of rights also explains the fading away of the Natural Law. Essentially, Natural Law should be discovered through rational assessment of the lasting nature of human beings and what they need so as to thrive. In interpreting the Natural Law, Horton stated that God gave man rights. Such rights are objective and secure basis for rational laws of a state rather than of men19. In English Law, for instance, following the landmark ruling in the case Ridge v Baldwin20, the concept of procedural fairness within administrative decision-making continues to get positive attention. This is unsurprising given the emergence of modern governments, in addition to transformation of the state administrative units, from being mere regulatory to distributing resources to the society21. This development has been manifested in England. Similar developments have rends of "duty to act fairly' in administering the law. In fact, many judges showed dissatisfaction with the way the principles of natural justice, based on Natural Law, have been adopted22. In which case, Natural Law advocates for freedom by aiming to keep arbitrary power out of the hands of the state. On the other hand, man’s invention of rights through the legislature, as is seen in the modern society, has put the arbitrary powers in the hands of the state. This is since the invented rights are invented subjectively and are undiscoverable from nature. To this end, such forms of invented rights denote social justice, which is essentially irrational and arbitrary. Hutchison argued that these invented laws are continually in flux. Additionally, they are not consistent as a foundation for law23. This is since such invented ideas come about subjectively in privileged liberal groups. Marxism and distribution of wealth Interpretation of justice, in terms of distribution, as proposed by Marxism, has shaped the modern day society as another factor of significance. Marxist roots of modern social justice have contributed immensely to the fading away of the Natural Law. According to Hutchison, despite having its origin in the French Enlightenment, the form of social justice that resonates with political liberals originates from Marxism24. Marxism ideas of justice are not based on the supernatural basis of justice as promoted by the proponents of Natural Law, such as Aquinas and Locke. In Marxism, the injustice is only measured by the unequal distribution of wealth. Hence, the arbitrary definition of justice in Marxism disregards to metaphysics or supernatural powers that characterise Natural Law. For this reason, Marxist are of the opinion that capitalist exploit workers unjustly and hence, promote the idea or revolutionary movements or trade unions that question the wealthy class or the employers. In the UK for instance, the ways in which social justice has sparked revolutions was witnessed in August 2011, when the youth stormed cities to protest against the arbitrary government decision to carry out massive retrenchment and to invoke personal responsibility. The British class structure has been operating through a parliamentary system since November 201025. As a consequence, the revolutions trigger the emergence of socialist rule that embrace the idea that human beings will be perfected in return enabling social justice to prevail. Based on the spirit of Marxism, social justice is perceived by the political leaders as only implementable through seizure of power and uncontrolled enforcement of arbitrary powers. Ideologically, positive law and liberalism are, according to Hutchison, related to Marxism and a threat to Natural Law26. Ignorance and criticism of the Natural Law In the contemporary society, pervasive ignorance and criticism of the existence of the Natural Law, has greatly contributed to the fading away of the Human Law. In fact, widespread ignorance and criticism has narrowed the understanding and advocacy of legal frameworks the apply Natural Law or blend it with the Positive Law in the modern society. Within this perspective, it can further be submitted that the argument applies for societies that look to formulate individual liberty policies27. Hence, there are those societies that believe in individual liberties who would still adopt the common law despite their criticism of the Positive Law and belief in the Natural Law. The concept of the structure of rational Natural Law does not appear to be used in the modern society guideline for formulating and amending whichever positive law that is in existence. Philosophical breakdown in the modern-day democracy The fading of Natural Law can be traced to the central philosophical problem of the modern-day democracy that reflects a clash between the social justice theory and the natural law. The definition of democracy in itself sanctifies man’s belief in his capacity rather than that of the God and the Natural Law. Sanborn and Thyne define democracy as a way of personal life that is governed by man's faith in his intelligence judgement, as well as, in his human nature and actions when favourable conditions are furnished28. Several researchers have set to explain that natural social justice theory and Natural Law are irreconcilable29. The government’s democratic programs can violate the principles essential for human law in consistency with the Natural Law principle, proposed by St Thomas Aquinas. Democracy disregards the individual, since they are concerned with man collectively. Accordingly, since democracy can sometimes be contradictory to the moral law, as rules are determined by the subjective desires of a group of human beings, it is not consistent with the principles of Natural Law. Disregard to human freedom and right Emergence of social and political communities that disregard human freedom has contributed to the fading of the Natural Law. Julius Stone argued that human freedom only gets to exist within social and political communities that tend to show respect, value and dignity to people30. For instance, democracy does not get to protect individual freedom, same for when majority of individuals show care for individual. The predominance of closed societies, caste systems, socialist states in some regions, such as the Middle East tend to value the individual only within their family, kinship, community and tribes. Hence, such societies have tended to disregard or show contempt to human law. In turn, they have suppressed human freedom. This has worked against the eminence of the Natural Law in their respective societies. Transcendence of the monarchy Strong and unquestionable belief in the magnificence and transcendence of the monarchy has greatly contributed to the fading away of the natural law. According to David VanDrunen, believing strongly in transcendent has the potential to aggravate the control freaks and rulers within a state31. Hutchison explained that this is precisely the reason why such states with closed systems tend to undermine the transcendent realm32. In return, the idol of these societies is seen as the god of men, as well as, the social code of the society becomes the moral law. In return, the Natural Law, which is the universal moral law, and the transcendent God, is screened. At this stage, it should be argued that when men who are in power are not restrained by the universal moral code of the transcendent God, they begin to use power arbitrarily as a result undermining the essence of human law33. This is since, when people get to govern themselves because of their belief in the universal moral law, they will need less state supervision. Such individual get to enjoy a range of freedom and social order. Hence, the total or partial conviction in transcendent realm is requisite to human freedom. Mistaking Social Justice for Natural Law The growth of social justice ideologies have been confused with Natural Law despite their differences. Hence, social justice has prevailed over Natural Law, causing the latter to slowly fade away. Social justice, which is currently confused with the natural law is not compatible with the principles of human liberty that characterise Natural Law. In Natural Law, equality entails a metaphysical ‘humanness equivalence’, which means that human beings are equal in terms of how they possess the quality that describe one as a human being. For instance, a father and his toddler son are treated as equal. In social justice however, they are not regarded to be equal in terms of many attributes, such as experience, psychologically, authority, intelligence and moral development. In the same manner, while the Natural Law regards the citizenry as entitled to equal justice as well as guided by equal legal and moral accountability, in social justice, they are greatly diverse in terms of talent, wisdom and virtue. Tucker argued that transcendent justice and nature do not claim that life should be fair in democratic or social terms34. Then again, the prevalence of liberalism has silenced the principles of Natural Law. Liberals tend to confuse the idea of equality with the incompatible ideas of Natural Law and a combination of social justice ideas. Social justice scholars extend the idea of equality to also comprise a right to equal share of the products of the society, such as merits, unique talents and attainments. However, in so doing, they violate the principles of liberty in Natural Law, since they also bring in the disorder in the society. In the UK for instance, the moderate British social justice has endangered the declaration of the right of the poor to freedom, from economic security, minimum wage and poverty. For instance, adaptive policies and strategies in the UK have been based on social justice. Basing on studies of the Joseph Rowntree Foundation’s Climate Change and Social Justice programme, it can clearly be argued that the UK societies has cared about social justice as a core value. In assessment of the impacts of climate change, findings suggested that the socially marginalised groups and low-income groups were greatly vulnerable35. According to Hutchison, such social justice ideas cannot be defined objectively. Additionally, they are absolute36. Seeping of liberal ideas into religion The seeping of liberal ideas into religion, specifically Christianity, has eroded the divine nature of Natural Law, hence contributing to its fading away. According to Morey, the liberal ideas have misguided liberal theologian who are today the custodians of religious dogmas that are supposed to safeguard Natural Law37. For instance, the liberal theologians have maintained that social justice is the tradition of Natural Law. Some liberal theologians have also expressed that social justice theory originated from Natural Law that can be traced to St Thomas Aquinas (1225-1274). However, claims are not logical since, as already analysed in this paper, Natural Law is incompatible with social justice. Indeed, it can be argued that the social justice theory is intellectually bankrupt, since although it is practiced selectively in the modern day society, it is not realistic. In the same way, it can be reasoned that the half-baked claims by liberal theologians are smitten with Marxism. In any case, since their claims have prevailed over Natural Law, the adoption and application of such assertions contribute immensely to the fading away of Natural Law. Conclusion Man’s invention of laws and deliberate action to believe in his intelligent judgment rather has led to the fading of the once dominant idea of human law, as reflecting a God created ‘natural law’. This is because of the popularity of positive law and freedom to express personal desires. Other reasons include present-day emphasis on human rights, imbalance between invention of rights and discovery of rights, Marxism and distribution of wealth, ignorance and criticism of the natural law, philosophical breakdown of the modern-day democracy, disregard to human freedom and right, transcendence of the monarchy, mistaking social justice for natural law, and lastly the seeping of liberal ideas into religion. 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