The Law of Agreement says that as we lend our agreement to any belief, we reinforce it and make it stronger. Alternatively, as we refrain from lending our agreement to an idea that isnt likely to give us the results were looking for, we dilute it and weaken its power over us and over everyone else simultaneously.
Burroughs offers examples and stories that show how the Law of Agreement and its partner, the Law of Adversity, work simultaneously.
What happens when we dont get what we want? What is the opportunity in adversity? And see I. Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so, both in settling the content of its rules and principles and in the procedures and institutions by which they make and administer it.
Natural law theories all understand law as a remedy against the great evils of, on the one side anarchy lawlessness , and on the other side tyranny. And one of tyranny's characteristic forms is the co-optation of law as a mask for fundamentally lawless decisions cloaked in the forms of law and legality.
If one thinks perceptively and carefully about what to pursue or shun and do or forbear from , one can readily understand and assent to practical propositions such as that life and health, knowledge, and harmony with other people are desirable for oneself and anyone else. The intrinsic desirability of such states of affairs as one's flourishing in life and health, in knowledge and in friendly relations with others, is articulated in foundational, underived principles of practical reasoning reasoning towards choice and action.
Such high-level but far from contentless moral principles can be given further specificity in two ways 1 by identifying what, given some broadly stable features of human reality, they entail see 1. Political communities are a kind of institution whose rational status as a normally desirable and obligatory objective of and context for collaborative action and forbearance can easily be seen to be entailed by the foundational practical and moral principles. In such communities, the normal means for making the needed determinationes is the institution of governmental authority acting in the first instance through legislation and other forms of law-making, i.
The political-theoretical part of natural law theory explains and elaborates the grounds and proper forms of governmental authority. It explains the similarities and differences between the practical authority of rulers including democratic electors acting as selectors of representatives or as plebiscitary decision-makers and the theoretical authority of experts and persons of sound judgment.
It shows the grounds for instituting and accepting practical authority as an almost invariably necessary means for preventing forms of harm and neglect which, because contrary to the high-level moral principles at least as they bear on relationships between persons , involve injustice. Political theory subsumes, as one of its branches, legal theory.
Moreover, he employs, through all his works, a methodological axiom: X 's nature is understood by understanding X 's capacities, which are understood by understanding their act[uation]s, which are understood by understanding their objects. But the objects of chosen acts are the intelligible intrinsic goods aspects of human flourishing which we are directed to by practical reason's first principles.
Knowledge of the factual possibility of say acquiring knowledge, or of losing or saving life, is a datum not really a premise for the understanding that such a possibility is also an opportunity—that actualizing the possibility would be good for oneself and others. The texts that are earliest e. In such a state of affairs, the more strong, cunning and ruthless prey on the less, education of children which calls for resources outside the family is difficult to accomplish, and economic activity remains stunted by the insecurity of holdings and the unreliability of undertakings.
There is evident need for persons who will articulate and enforce standards of conduct which will tend to promote the common good of bodily security, stable access to resources, cooperation in economic and educational activities, and rectification by punishment, compensation and restitution of at least the grosser inter-personal injuries of commission and neglect. To articulate that need is to state the reasons for instituting and supporting political authority, notably state government and law, on condition that these institutions carry on their legislative, executive and judicial activities substantially for the common good of the inhabitants of the relevant territory, rather than in the interests of a segment of the population unfairly indifferent or hostile to the interests and wellbeing of other segments.
Aristotle Politics III. He takes his arguments to suggest the answer that in almost all societies, on almost all occasions and issues, it is preferable that government be by or in accordance with law, since i laws are products of reason s not passion s , ii the sovereignty of a ruler or assembly tends to tyranny i. So for Aristotle, the central case of practical authority is government of a polis by law and legally regulated rulers. Thomas Aquinas' account of human positive law treats the central case of government as the self-government of a free people by the rulers and institutions which that people has appointed for that purpose, and the central case of law is the co-ordination of willing subjects by law which, by its public character promulgation , clarity, generality, stability and practicability, treats those subjects as partners in public reason Summa Theologiae I-II q.
He shows that these hang together as a set of desiderata or requirements because they are implications or specifications of the aspiration and duty to treat people as presumptively entitled—as a matter of fairness and justice—to be ruled as free persons, fundamentally the equals of their rulers, not puppets or pawns to be managed and kept in order by manipulation, uncertainty, fear, etc.
The normal result of such fairness in the procedures of making and maintaining the law will be to strengthen the law's efficacy, too.
Unfortunately, the surface of Fuller's text gives more prominence to effectiveness than to fairness, and many critics e. This thesis has been elaborated more carefully and on a different basis by Raz and Kramer a and b: although the rule of law and compliance with it can be morally important and even a moral virtue because normally necessary for fully just government in a just society, and especially for alleviating dangers that arise from the existence of political authority, and of law itself , it is nonetheless in itself morally neutral since in states which employ the forms of law it will normally be needed even by deeply unjust rulers for advancing their immoral purposes.
It is like a sharp knife, whose sharpness makes it apt for life-saving surgery but equally for stealthy callous murders Raz , —6. Finnis —4 and Simmonds , , , have challenged the quasi-empirical claim that even vicious tyrants need or find it apt, for the efficacy of their domination, to comply with the requirements of the rule of law. The eighth of Fuller's elements of the rule of law, viz.
If the rulers somewhere do not respect the rights and interests of some of their subjects in relation to issues of substance life, bodily security, freedom, property, and so forth , why should the rulers—what reason have they to—respect their subjects' rights or interests in the matters of procedure involved in the rule of law giving them fair notice of what is expected of them, and adhering as rulers to the promulgated law when assessing these subjects' conduct and in other governmental dealings with those subjects?
A more or less inconsistent willingness of rulers to tie their own hands by scrupulous adherence to procedural justice while yet being substantively unjust, is of course psychologically possible. But Fuller's primary concern, like that of the wider tradition of natural law theory, is with rationality and the specific implication of fully coherent reasonableness: morally reasonable judgment and choice. Fuller offered a merely procedural natural law theory, though he did not deny that a substantive natural law theory is possible and appropriate.
And indeed there is no sufficient reason to follow him in restricting the range of practical-theoretical reflection on what is needed for a political society worthy of the self-restraints and acceptance of responsibilities that the law requires of those to whom it applies. For it is clear that the procedures and institutions of law are in the service of substantive purposes: the restriction of violence, theft and fraud, the recovery of things misappropriated from their lawful owners or possessors, and of losses wrongfully imposed, protection of intangible goods such as reputation against unwarranted defamation, and of the immature, the mentally disabled and other vulnerable people against sexual or other exploitation, and so forth.
That portion of our positive law which consists of legal principles or rules giving effect to purposes such as those just listed was often named, by natural law theories, ius [or jus ] gentium. Minted by jurists of classical Roman law such as Gaius c.
The reason for their ubiquity is, generally speaking, that any reasonable consideration of what it takes for individuals, families and other associations to live together in political society, tolerably well, will identify these principles and rules as necessary. In the common law tradition, the legal wrongs picked out by such principles have been called mala in se , as distinct from mala prohibita —things wrong in themselves as distinct from things wrong only because prohibited by positive law—and this distinction remains, for good reason, in use in judicial reasoning.
Hart can be so read. But even Hart's account, on closer examination, identifies the relevant necessity not as conceptual or linguistic but as an instance of the rational necessity of means needed to secure purposes which are non-optional. His explanation, slightly updated: this very large part of our law could reasonably have been different, in the way that every detail of a maternity hospital could have been somewhat different and large portions of the design could have been very different, even though some features e. The kind of rational connection that holds even where the architect has wide freedom to choose amongst indefinitely many alternatives is called by Aquinas a determinatio of principle s —a kind of concretization of the general, a particularization yoking the rational necessity of the principle with a freedom of the law-maker to choose between alternative concretizations, a freedom which includes even elements of in a benign sense arbitrariness.
Once the determinatio is validly made, fulfilling the criteria of validity provided by or under the relevant legal system's constitutional law, it changes the pre-existing state of the law by introducing a new or amended legal rule and proposition s of law. The new or amended legal rule gives judges, other officials, and citizens a new or amended reason for action or forbearance. The moral normativity of the principle is replicated in the more specified rule created by the determinatio , even though the latter is not an entailment of the former. That is to say: the concretized rule is morally as well as legally normative because such normativity is presumptively and defeasibly entailed by the moral principle that the common good whose fundamental content is given by the foundational principles of practical reason: 1.
Purely positive law that is legally valid is presumptively and defeasibly valid and binding morally—has the moral form or meaning of legal obligatoriness —when and because it takes its place in a scheme of practical reasoning whose proximate starting point is the moral need for justice and peace, and whose more foundational starting-point is the range of basic ways in which human wellbeing can be promoted and protected, the way picked out in practical reason's first principles.
Thus, in relation to the settled positive law, natural law theory—as is acknowledged by a number of legal positivists, e. The legal-moral obligation or obligatoriness of a legal rule is counterpart to the legal-moral authority or authoritativeness of its author enacter or other source.
The idea of authority has been clarified by contemporary legal theorists such as Raz and Hart, by reflection upon the kind of reasons for action purportedly given to potentially acting subjects by an exercise of practical authority. The relevant kind of practical reason has been variously called exclusionary, peremptory or pre-emptive, and content-independent.
The core idea is that subjects are instructed to treat the proffered reason say, a statutory provision, or a judicial order , in their deliberations towards choice and action, as a reason which does not simply add to the reasons they already have for acting one way rather another, but rather excludes and takes the place of some of those reasons. And this exclusionary, peremptory or pre-emptive force is owed not to the inherent attractiveness to reason of the content of the proffered reason, but to the status of its author or other source as one entitled—for example, by its role in a constitutional scheme of governance for the solution of a political community's coordination problems—to be obeyed, complied with, treated as authoritative.
See e. This content-independence of authoritative reasons entails their presumptive obligatoriness. The defeasibility of that presumption is entailed by the dependence of such reasons' peremptory, pre-emptive or exclusionary force upon a background of presupposed basic human needs and goods, and of basic moral principles and norms, a background which entails that if a purportedly authoritative proffered posited reason conflicts sufficiently clearly with those standing needs, goods, principles or norms its exclusionary force is exhausted or overcome and the purported obligatoriness defeated.
Less abstractly put, both the effectiveness of laws as solutions to coordination problems and promoters of common good, and the fairness of demanding adherence to them, are dependent upon their being treated both by the subjects and the administrators of the legal system as legally and morally entitled, precisely as validly made law, to prevail against all other reasons save competing moral obligations of greater strength. It is this entitlement that is negated by the serious injustice of a law or legal system: see 3 and 4 below. Talk of human flourishing's or wellbeing's aspects, and of principles of practical reason, should not be allowed to distract attention from an important truth, implicit both in classical Greek and Roman philosophical and juristic treatments of justice and in modern juristic attributions of human rights.
Law, fit to take a directive place in practical reasoning towards morally sound judgment, is for the sake of human persons: all the members of the community regulated by that law and all other persons within that law's ambit. That thesis falls within those parts of legal theory that are acknowledged but not much explored by contemporary legal positivists.
It was ignored and in effect denied by earlier forms of legal positivism more ambitious to cover the whole of legal philosophy, e. Kelsen denied that persons were known either to law or to a proper legal theory or science of law, except insofar as they were made the subject of a posited legal rule. But against this restriction, which has misled some courts which have treated Kelsenian legal science as a guide to judicial reasoning, it can be said Finnis that the fundamental equality and dignity of human beings should defended as part of a rationally sound understanding concept of law.
This defense requires an account of the difference between capacities which are activated here and now, or are more or less ready to be so actuated, and radical capacities such as exist in the epigenetic primordia of even very young human beings, and in the genetic and somatic constitution of even the severely disabled. Though such an account makes possible a defense of the fundamental equality of human beings, and thus a humanist legal theory, the point of the account is not to privilege a biological species as such, but to affirm the juridical significance of the status of persons—substances of a rational nature—as inherently the bearers subjects of rights of a kind different and more respect-worthy and end -like than the rights which are often, as a matter of technical means , attributed by law to animals, idols, ships or other objects of legal proceedings.
Natural law theory concurs with Raz and Gardner in rejecting the inclusivist restriction as ungrounded, but dissents from them in holding as Dworkin does too: Dworkin , 47 that any moral rule or principle which a court is bound or authorized to apply, precisely as a court, can reasonably be counted or acknowledged as a law, i.
Such rules belong to the ius gentium portion of our law.
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Does this amount to acknowledging that natural law theory is significantly less concerned than contemporary legal positivist theories to establish the precise boundaries and content of the social-fact sourced posited, purely positive law of our community? Not really. The result of these rulings might be accounted for i by exclusive positivism: the tribunal was morally authorized to apply moral rules, notwithstanding that the rules so applied were not rules of law either at the time of the crimes or the time of the prosecution.
But the terms of the rulings as just summarized can be accounted for ii by inclusive positivism: the Charter was positive law for the tribunal and directed it to apply moral rules which by virtue of that legal direction were also legal rules. And if one has doubts about victors' justice, those very doubts can likewise appeal to principles of the same higher law, ius gentium , or law of reason and humanity.
Natural law theory of law thus finds itself, in this respect, approximated to by Ronald Dworkin's account of law and adjudication, not only in frontier situations like Nuremberg but also in the day-to-day working of a sophisticated legal system. Normal adjudication and judicial reasoning has two dimensions or criteria for distinguishing correctness from incorrectness in judgments. One dimension comprises social-fact sources statutes, precedents, practice, etc. Dworkin , —7, A theory of law which, unlike Dworkin's, places itself plainly in the tradition of natural law theorizing will be likely to depart from these positions in two ways.
In the absence of such a single measure, legal reasoning must often—and in very hard cases, usually—be content to show that two or three alternative interpretations are distinguished from an indefinitely large number of other interpretations by being correct, that is, not wrong albeit not uniquely correct. See 4 below. In line with Dworkin's two-dimensions account thus qualified , natural law theory will assent to the thesis that Green makes characteristic of legal positivism:. As to : A natural law theory, mindful of the normal desirability of a rule of law and not of judges see 1.
On those occasions where such a departure is morally warranted, the theory will suggest that the judge is authorized to proceed according to the higher and perennial law of humanity, the ius gentium or set of universal principles of law and justice common to all civilized peoples, which deprives settled law—more precisely, what has been accepted in the jurisdiction as being settled law—of its directiveness for subjects and judges alike.
Is the settled law which the judge is morally authorized to set aside thereby being treated, even prior to the judge's handing down of judgment, as not law? The following section argues that that question should be answered both Yes and No. In such a case, does the law as settled by social-fact sources, in losing its directiveness for judges and citizens, lose also its legal validity? The answer depends upon the discursive context in which the question arises. Or if the discursive context makes it appropriate instead to point up its lack of directiveness for judges and subjects alike, one can say that the rule, despite its links to social-fact sources, is not only not morally directive but is also legally invalid.
Each way of speaking tells an important part of the truth, or rather, tells the truth with an emphasis which differs from the other's. The excitement and hostility aroused amongst modern legal theorists notably Hart by the former way of speaking is unwarranted. It is thus law only in a sense that should be judged—especially when law is regarded, as by Hart himself, as a kind of reason or purported reason for action—to be a distorted and secondary, non-central sense.
The slogan is unintelligible save as an expression of and incitement to engaging in such critiques; it can scarcely be rejected without first misquoting it, as Hart and those who employ his argument almost invariably do, averting their gaze from the slogan's first predicate and implied assertion: that the unjust rule in question is a rule of law. Some theories have adopted certain main tenets of natural law theory, and professed to be natural law theories, but have asserted that even the most unjust laws create an obligation to obey which is both legal and moral.
Alexy has pointed out the confusions and inconsistencies in Kant's attempts to evade the classic position that laws whose injustice is sufficiently grave can and should be denied to have the legal character predicable of laws that citizens and courts, precisely as courts, are morally and juridically entitled to treat as—or as if they are—not law.
In this as in many other respects, seventeenth and eighteenth century philosophical developments like their twentieth and twenty-first century counterparts were not so much progress as regress. But precisely how the classic position itself should be formulated, explained and applied today is debated between Alexy and Finnis Alexy ; Finnis Descriptions of the valuations made by particular persons or societies can of course be value-free. Doubtless the historian, detective or other observer thinks there is some value in making the investigation and resultant description, but that valuation in no way need enter into the description.
Still less need the description either approve or disapprove of the valuations which it reports.