natural moral law evaluation essay

Critically evaluate Natural Law as an approach to making 21st century moral decisions. [40]

Natural Law is the most ancient of the normative ethical systems; originating in the work of Aristotle, it was adopted as the basis for Roman Catholic moral philosophy and continues to be applied today. As a result, there are multiple different versions of Natural Law so in critically evaluating it as an approach to making decisions it is important to differentiate between these. Given this, a proportionalist version of Natural Law is a practical approach to making 21st century moral decisions.

Firstly, Natural Law has the great advantage of offering a clear and universal set of norms. 21st Century moral decisions are often complex and emotive, which means that consequentialist approaches to decision making are impractical. Taking Utilitarianism as an example, even Peter Singer has acknowledged that individuals deciding when to end life-support, use a drone to eliminate a terrorist-suspect or invest in an untried technology are not in a position to calculate the outcomes of all their possible actions with sufficient accuracy and objectivity to make an act-utilitarian approach viable. Because of the Problem of Prediction in particular, most Utilitarians advocate a more-or-less strong rule approach to maximising pleasure and minimising pain today. Further, Utilitarians are divided on how to define the outcome to be maximised and most have moved away from the crude Benthamite claim that “all things being equal, pushpin is as good as poetry…” and embrace Mill’s desire to be more Socrates and less pig! In short and in practice most 21st Century Utilitarians recognise the need for clear more-or-less universal norms designed to maximise human flourishing. While they do not support the traditional Roman Catholic version of Natural Law, they are in fact not so far from a proportionalist version of Natural Law. So much so that Proportionalists are often accused of being Utilitarians. However, Proportionalism is a distinct approach to decision making and one with the advantage over utilitarianism that it considers actions in their wider context, including in relation to the effect they have on the moral character in the long-term. Because of this, a Proportionalist version of Natural Law is a better approach to making 21st Century moral decisions than consequentialist approaches such as Utilitarianism.

Secondly, in terms of Proportionalism’s concern to place actions in a broader context and to consider their effects on character, this is nothing new in the tradition of Natural Law. Both the versions of Aristotle and Aquinas Natural Law was intended to sit alongside virtue ethics; actions in themselves and broader character development were intended to be considered side-by-side. While the Roman Catholic Church has often been legalistic in its application of Natural Law, making it inflexible and reducing the role of the individual in making their own moral decisions, this goes against even the thinking of St Thomas Aquinas and was criticised by Pope Francis in his 2016 encyclical Amoris Laeticia… “We have been called to form consciences, not to replace them . … Rather than offering the healing power of grace and the light of the Gospel message, some would “indoctrinate” that message, turning it into “dead stones to be hurled at others”….” Aquinas argued that the first duty of each person is to follow their own conscience, pursuing good and avoiding evil as they see fit. While this does not excuse evil actions, chosen by pursuing an apparent good over the real good, it is worse for someone to go against their conscience because of the effect this has on the wider moral character. This point is emphasised by Proportionalists like Bernard Hoose, who argue that Natural Law should be about “trying to discover what is the morally right thing to do in any particular set of circumstances.” Hoose rejects the idea that 21st century moral decisions are clear-cut and stresses the importance of making decisions in conscience and in relation to the specifics of the case. Because it is able to combine a clear and universal set of norms with a degree of flexibility with regard to complex situations, a proportionalist version of Natural Law, such as that proposed by Hoose, is a practical approach to making 21st Century moral decisions.

A common criticism of Proportionalism from Roman Catholic moral philosophers is that it seeks a proportional way of justifying morally wrong actions. However, Hoose argued that “We should always do only what, in conscience, we judge to be morally right, and we should never do what we judge in conscience to be morally wrong…” pointing out that actions and those carrying them out should be understood and judged as a whole rather than focusing on bits in isolation. Hoose wrote, ‘An evil like pain, death or mutilation is, in itself, pre-moral or non-moral, and should never be described as ‘moral’. It is the act as a whole which is either right or wrong, and it is the person, or the person in his or her acting, who is morally good or morally bad.’ Where a traditional Roman Catholic approach to Natural Law would see the action of terminating a pregnancy as morally wrong in itself, Hoose sees the termination as a non or pre-moral evil, which only becomes moral as part of a whole decision made by a whole moral character and then in context. Where a traditional Roman Catholic approach to Natural Law would see any decision and any person involved in terminating a pregnancy as evil by association, Hoose would distinguish between terminating the pregnancy of a 10 year old rape-victim and of a healthy married woman. The termination may become part of a morally evil action and contribute to the corruption of one or more moral characters – such as when a healthy married woman in India is forced to abort a female foetus – or the termination may become part of a morally good action and contribute to the development of a good moral character – such as in the aftermath of war and with the consent of all concerned. Proportionalism does not attempt to justify morally wrong actions, but rather it rejects the idea that actions are wrong in themselves and insists that they are evaluated in their proper context. So, in this way, a proportionalist version of Natural Law, such as that proposed by Hoose, is sufficiently sophisticated and nuanced to support 21st Century moral decision making.

Further, it is clear that following some of the moral rules laid down by the Church blindly strikes most people as morally wrong in the 21st Century. Take for example the case of Bishop Kevin Dowling in Rustenburg, who came into conflict with the Church for handing out condoms to sex-workers in the middle of an HIV epidemic in his South African Diocese . Church teaching from Humanae Vitae, developed by Germain Grisez on the basis of Natural Law, clearly forbids the use of condoms in any circumstances as they prevent sex from having the potential to create life; promoting human life being the most basic of human goods. Nevertheless, Dowling argued that the sex-workers were engaged in “survival sex”, meaning that selling sex is the only means available not to starve and so to promote the most basic of basic human goods, life. Dowling reasoned that the sex-workers were going to have sex with or without condoms, while without them many lives would be destroyed, so proportionately and in the interests of promoting the basic human good of life it was the right thing to give the sex-workers condoms. This accords with Aquinas own writing on the subject of prostitution, which acknowledged that “those who are in authority, rightly tolerate certain evils, lest certain goods be lost, or certain greater evils be incurred.” Summa II(II) question 10, article 11 and it accords with the Roman Catholic Church’s own teaching on warfare, which again permits “those in authority” to use even lethal force when it is proportionate and necessary to pursue a good cause, such as to protect more lives. It follows that Proportionalism is both faithful to Aquinas’ Natural Law and more consistent than traditional Roman Catholic ethics. In this way also, a proportionalist version of Natural Law, such as that proposed by Hoose, is the best approach to 21st Century moral decision making.

In conclusion, a proportionalist version of Natural Law, such as that proposed by Hoose, is the best approach to 21st Century moral decision making. Proportionalism is more suited to making complex, emotive decisions than consequentialist approaches such as utilitarianism, and more practical, nuanced, and consistent than traditional, legalistic Roman Catholic Natural Law. As a result, much more attention should be given to Proportionalism as a way of addressing moral problems as they arise in the future.

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The Natural Law Tradition in Ethics

‘Natural law theory’ is a label that has been applied to theories of ethics, theories of politics, theories of civil law, and theories of religious morality. We will be concerned only with natural law theories of ethics: while such views arguably have some interesting implications for law, politics, and religious morality, these implications will not be our focus here.

This article has two central objectives. First, it aims to identify the defining features of natural law moral theory. Second, it aims to identify some of the main theoretical options that natural law theorists face in formulating a precise view within the constraints set by these defining features and some of the difficulties for each of these options. It will not, however, attempt to recount the history of the development of natural law thought. (For a very helpful detailed history of natural law thought up to the beginning of the modern period, see Crowe 1977. For a very helpful detailed history of natural law thought in the modern period, see Haakonssen 1996. For an article-length recap of the entire history of natural law thought, see Haakonssen 1992.)

1.1 Natural law and divine providence

1.2 natural law and practical rationality, 1.3 the substance of the natural law view, 1.4 paradigmatic and nonparadigmatic natural law theories, 2.1 natural goodness, 2.2 knowledge of the basic goods, 2.3 the catalog of basic goods, 2.4 from the good to the right, other internet resources, related entries, 1. key features of natural law theories.

Even though we have already confined ‘natural law theory’ to its use as a term that marks off a certain class of ethical theories, we still have a confusing variety of meanings to contend with. Some writers use the term with such a broad meaning that any moral theory that is a version of moral realism — that is, any moral theory that holds that some positive moral claims are literally true (for this conception of moral realism, see Sayre-McCord 1988)— counts as a natural law view. Some use it so narrowly that no moral theory that is not grounded in a very specific form of Aristotelian teleology could count as a natural law view. It might be thought that there is nothing that can be done to begin a discussion of natural law theory in ethics other than to stipulate a meaning for ‘natural law theory’ and to proceed from there. But there is a better way of proceeding, one that takes as its starting point the central role that the moral theorizing of Thomas Aquinas plays in the natural law tradition. If any moral theory is a theory of natural law, it is Aquinas’s. (Every introductory ethics anthology that includes material on natural law theory includes material by or about Aquinas; every encyclopedia article on natural law thought refers to Aquinas.) It would seem sensible, then, to take Aquinas’s natural law theory as the central case of a natural law position: of theories that exhibit all of the key features of Aquinas’s natural law view we can say that they are clearly natural law theories; of theories that exhibit few of them we can say that they are clearly not natural law theories; and of theories that exhibit many but not all of them we can say that they are in the neighborhood of the natural law view but nonetheless must be viewed as at most deviant cases of that position. There remain, no doubt, questions about how we determine what are to count as the key features of Aquinas’s position. But we may take as the key features those theses about natural law that structure his overall moral view and which provide the basis for other theses about the natural law that he affirms.

For Aquinas, there are two key features of the natural law, features the acknowledgment of which structures his discussion of the natural law at Question 94 of the Prima Secundae of the Summa Theologiae . The first is that, when we focus on God’s role as the giver of the natural law, the natural law is just one aspect of divine providence; and so the theory of natural law is from that perspective just one part among others of the theory of divine providence. The second is that, when we focus on the human’s role as recipient of the natural law, the natural law constitutes the principles of practical rationality, those principles by which human action is to be judged as reasonable or unreasonable; and so the theory of natural law is from that perspective the preeminent part of the theory of practical rationality.

While our main focus will be on the status of the natural law as constituting the principles of practical rationality, we should consider for a moment at least the importance within Aquinas’s view of the claim that the natural law is an aspect of divine providence. The fundamental thesis affirmed here by Aquinas is that the natural law is a participation in the eternal law (ST IaIIae 91, 2). The eternal law, for Aquinas, is that rational plan by which all creation is ordered (ST IaIIae 91, 1); the natural law is the way that the human being “participates” in the eternal law (ST IaIIae 91, 2). While nonrational beings have a share in the eternal law only by being determined by it — their action nonfreely results from their determinate natures, natures the existence of which results from God’s will in accordance with God’s eternal plan — rational beings like us are able to grasp our share in the eternal law and freely act on it (ST IaIIae 91, 2). It is this feature of the natural law that justifies, on Aquinas’s view, our calling the natural law ‘law.’ For law, as Aquinas defines it (ST IaIIae 90, 4), is a rule of action put into place by one who has care of the community; and as God has care of the entire universe, God’s choosing to bring into existence beings who can act freely and in accordance with principles of reason is enough to justify our thinking of those principles of reason as law.

When we focus on the recipient of the natural law, that is, us human beings, the thesis of Aquinas’s natural law theory that comes to the fore is that the natural law constitutes the basic principles of practical rationality for human beings, and has this status by nature (ST IaIIae 94, 2). The notion that the natural law constitutes the basic principles of practical rationality implies, for Aquinas, both that the precepts of the natural law are universally binding by nature (ST IaIIae 94, 4) and that the precepts of the natural law are universally knowable by nature (ST IaIIae 94, 4; 94, 6).

The precepts of the natural law are binding by nature: no beings could share our human nature yet fail to be bound by the precepts of the natural law. This is so because these precepts direct us toward the good as such and various particular goods (ST IaIIae 94, 2). The good and goods provide reasons for us rational beings to act, to pursue the good and these particular goods. As good is what is perfective of us given the natures that we have (ST Ia 5, 1), the good and these various goods have their status as such naturally. It is sufficient for certain things to be good that we have the natures that we have; it is in virtue of our common human nature that the good for us is what it is.

The precepts of the natural law are also knowable by nature. All human beings possess a basic knowledge of the principles of the natural law (ST IaIIae 94, 4). This knowledge is exhibited in our intrinsic directedness toward the various goods that the natural law enjoins us to pursue, and we can make this implicit awareness explicit and propositional through reflection on practice. Aquinas takes it that there is a core of practical knowledge that all human beings have, even if the implications of that knowledge can be hard to work out or the efficacy of that knowledge can be thwarted by strong emotion or evil dispositions (ST IaIIae 94, 6).

If Aquinas’s view is paradigmatic of the natural law position, and these two theses — that from the God’s-eye point of view, it is law through its place in the scheme of divine providence, and from the human’s-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason — are the basic features of the natural law as Aquinas understands it, then it follows that paradigmatic natural law theory is incompatible with several views in metaphysics and moral philosophy. On the side of metaphysics, it is clear that the natural law view is incompatible with atheism: one cannot have a theory of divine providence without a divine being. It is also clear that the paradigmatic natural law view rules out a deism on which there is a divine being but that divine being has no interest in human matters. Nor can one be an agnostic while affirming the paradigmatic natural law view: for agnosticism is the refusal to commit either to God’s existence or nonexistence, whereas the paradigmatic natural law view involves a commitment to God’s existence. On the side of moral philosophy, it is clear that the natural law view is incompatible with a nihilism about value, that is, the rejection of the existence of values. It is also incompatible with relativist and conventionalist views, on which the status of value is entirely relative to one’s community or determined entirely by convention. It is also incompatible with a wholesale skepticism about value, for the natural law view commits one to holding that certain claims about the good are in fact knowable, indeed, knowable by all.

The center of Aquinas’s natural law view as described thus far concerns what we might call the metaphysics of morals: its role in divine providence and the universally authoritative character of its norms. What, though, of the normative content of Aquinas’s natural law position? Is there anything distinctive about the normative natural law position? Here it is difficult to say much that is uncontroversial, but we can say a sufficient amount about Aquinas’s natural law theory to make clear that it is an interesting alternative to utilitarian (and more generally consequentialist) ethics, Kantian views, and standard Aristotelian positions. (For a magisterial treatment of Aquinas’s natural law ethic, see Rhonheimer 2000.)

Aquinas says that the fundamental principle of the natural law is that good is to be done and evil avoided (ST IaIIae 94, 2). This is, one might say, a principle of intelligibility of action (cf. Grisez 1965): only action that can be understood as conforming with this principle, as carried out under the idea that good is to be sought and bad avoided, can be understood as an intelligible action. But no one can in acting simply pursue good — one has to pursue some particular good. And Aquinas holds that we know immediately, by inclination, that there are a variety of things that count as good and thus to be pursued — life, procreation, knowledge, society, and reasonable conduct (ST IaIIae 94, 2; 94, 3) are all mentioned by Aquinas (though it is not clear whether the mentioned items are supposed to constitute an exhaustive list).

So on Aquinas’s view it is the good that is fundamental: whether an action, or type of action, is right is logically posterior to whether that action brings about or realizes or is some good . The good is, on Aquinas’s view, prior to the right. But on Aquinas’s view we are, somehow, able to reason from these principles about goods to guidelines about how these goods are to be pursued. Aquinas’s thoughts are along the following lines: first, there are certain ways of acting in response to the basic human goods that are intrinsically flawed; and second, for an act to be right, or reasonable, is for it to be an act that is in no way intrinsically flawed (ST IaIIae 18, 1).

The important task, then, is to identify the ways in which an act can be intrinsically flawed. Aquinas does not obviously identify some master principle that one can use to determine whether an act is intrinsically flawed (though for an attempt to identify such a master principle in Aquinas’s work see Finnis 1998, p. 126), though he does indicate where to look — we are to look at the features that individuate acts, such as their objects (ST IaIIae 18, 2), their ends (ST IaIIae 18, 3), their circumstances (ST IaIIae 18, 4), and so forth. An act might be flawed through a mismatch of object and end — that is, between the immediate aim of the action and its more distant point. If one were, for example, to regulate one’s pursuit of a greater good in light of a lesser good — if, for example, one were to seek friendship with God for the sake of mere bodily survival rather than vice versa — that would count as an unreasonable act. An act might be flawed through the circumstances: while one is bound to profess one’s belief in God, there are certain circumstances in which it is inappropriate to do so (ST IIaIIae 3, 2). An act might be flawed merely through its intention: to direct oneself against a good — as in murder (ST IIaIIae 64, 6), and lying (ST IIaIIae 110, 3), and blasphemy (ST IIaIIae 13, 2) — is always to act in an unfitting way. Aquinas has no illusions that we will be able to state principles of conduct that exhaustively determine right conduct, as if for every situation in which there is a correct choice to be made there will be a rule that covers the situation. He allows for the Aristotelian insight that the particulars of the situation always outstrip one’s rules, so that one will always need the moral and intellectual virtues in order to act well (Commentary on NE, II, 2, 259). But he denies that this means that there are no principles of right conduct that hold everywhere and always, and some even absolutely. On Aquinas’s view, killing of the innocent is always wrong, as is lying, adultery, sodomy, and blasphemy; and that they are always wrong is a matter of natural law. (These are only examples, not an exhaustive list of absolutely forbidden actions.)

Part of the interest of Aquinas’s substantive natural law ethic lies in its not falling into the neat contemporary categories for moral theories. His natural law view understands principles of right to be grounded in principles of good; on this Aquinas sides with utilitarians, and consequentialists generally, against Kantians. But Aquinas would deny that the principles of the right enjoin us to maximize the good — while he allows that considerations of the greater good have a role in practical reasoning, action can be irremediably flawed merely through (e.g.) badness of intention, flawed such that no good consequences that flow from the action would be sufficient to justify it — and in this Aquinas sides with the Kantians against the utilitarians and consequentialists of other stripes. And while Aquinas is in some ways Aristotelian, and recognizes that virtue will always be required in order to hit the mark in a situation of choice, he rejects the view commonly ascribed to Aristotle (for doubts that it is Aristotle’s view; see Irwin 2000) that there are no universally true general principles of right. The natural law view rejects wholesale particularism.

To summarize: the paradigmatic natural law view holds that (1) the natural law is given by God; (2) it is naturally authoritative over all human beings; and (3) it is naturally knowable by all human beings. Further, it holds that (4) the good is prior to the right, that (5) right action is action that responds nondefectively to the good, that (6) there are a variety of ways in which action can be defective with respect to the good, and that (7) some of these ways can be captured and formulated as general rules.

Aquinas was not the only historically important paradigmatic natural law theorist. Thomas Hobbes, for example, was also a paradigmatic natural law theorist. He held that the laws of nature are divine law ( Leviathan , xv, ¶41), that all humans are bound by them ( Leviathan , xv, ¶¶36), and that it is easy to know at least the basics of the natural law ( Leviathan , xv, ¶35). He held that the fundamental good is self-preservation ( Leviathan , xiii, ¶14), and that the laws of nature direct the way to this good (Leviathan, xiv, ¶3). He offered a catalog of laws of nature that constitute the “true moral philosophy” ( Leviathan , xv, ¶40). There are also a number of contemporary writers that affirm the paradigmatic view. These writers, not surprisingly, trace their views to Aquinas as the major influence, though they do not claim to reproduce his views in detail. (See, for example, Grisez 1983, Finnis 1980, MacIntyre 1999, and Murphy 2001.)

It is also easy to identify a number of writers, both historical and contemporary, whose views are easily called natural law views, through sharing all but one or two of the features of Aquinas’s paradigmatic position. Recently there have been nontheistic writers in the natural law tradition, who deny (1): see, for example, the work of Michael Moore (1982, 1996) and Philippa Foot (2001). There were a number of post-Thomistic writers in the medieval and modern periods who in some way denied (2), the natural authority of the natural law, holding that while the content of the natural law is fixed either wholly or in part by human nature, its preceptive power could only come from an additional divine command: the views of John Duns Scotus, Francisco Suarez, and John Locke fit this mold. Arguably the Stoics were natural law thinkers, but they seem to deny (4), holding the right to be prior to the good (see Striker 1986). Some contemporary theological ethicists called ‘proportionalists’ (e.g. Hallett 1995) have taken up the natural law view with a consequentialist twist, denying (6). (For a discussion of the relationship between proportionalism and natural law theory see Kaczor 2002.) And while some see Aristotle as being the source of the natural law tradition, some have argued that his central appeal to the insight of the person of practical wisdom as setting the final standard for right action precludes the possibility of the sort of general rules that would (at least in a theistic context) make Aristotle’s ethics a natural law position. There is of course no clear answer to the question of when a view ceases to be a natural law theory, though a nonparadigmatic one, and becomes no natural law theory at all.

2. Theoretical Options for Natural Law Theorists

Even within the constraints set by the theses that constitute the paradigmatic natural law position, there are a number of variations possible in the view. Here we will consider several issues that must be addressed by every particular natural law view, and some difficulties that arise for possible responses to these issues.

It is essential to the natural law position that there be some things that are universally and naturally good. But how is universal, natural goodness possible? Given the variability of human tastes and desires, how could there be such universal goods?

Natural law theorists have at least three answers available to them. The first answer is Hobbesian, and proceeds on the basis of a subjectivist theory of the good. On subjectivist theories of the good, what makes it true that something is good is that it is desired, or liked, or in some way is the object of one’s pro-attitudes, or would be the object of one’s pro-attitudes in some suitable conditions. One might think that to affirm a subjectivist theory of the good is to reject natural law theory, given the immense variation in human desire. But this is not so. For one might hold that human beings’ common nature, their similarity in physiological constitution, makes them such as to have some desires in common, and these desires may be so central to human aims and purposes that we can build important and correct precepts of rationality around them. This is in fact what Hobbes claims. For while on the Hobbesian view what is good is what is desired, Hobbes thinks that humans are similarly constructed so that for each human (when he or she is properly biologically functioning) his or her central aim is the avoidance of violent death. Thus Hobbes is able to build his entire natural law theory around a single good, the good of self-preservation, which is so important to human life that exceptionlessly binding precepts can be formulated with reference to its achievement.

The second answer is Aristotelian. The idea here is to reject a subjectivism about the good, holding that what makes it true that something is good is not that it stands in some relation to desire but rather that it is somehow perfective or completing of a being, where what is perfective or completing of a being depends on that being’s nature. So what is good for an oak is what is completing or perfective of the oak, and this depends on the kind of thing that an oak is by nature; and what is good for a dog is what is completing or perfective of the dog, and this depends on the kind of thing that a dog is by nature; and what is good for a human depends on what is completing or perfective of a human, and this depends on the kind of thing a human is by nature. So the fact of variability of desire is not on its own enough to cast doubt on the natural law universal goods thesis: as the good is not defined fundamentally by reference to desire, the fact of variation in desire is not enough to raise questions about universal goods. This is the view affirmed by Aquinas, and the majority of adherents to the natural law tradition.

The third answer is Platonic. Like the Aristotelian view, it rejects a subjectivism about the good. But it does not hold that the good is to be understood in terms of human nature. The role of human nature is not to define or set the good, but merely to define what the possibilities of human achievement are. So one might think that some things — knowledge, beauty, etc. — are just good in themselves, apart from any reference to human desire or perfection, but hold that the pursuit of these are only part of the natural law insofar as they fall within the ambit of human practical possibility. This view of the good is not much defended — in part because of the scathing criticism offered of Plato’s view by Aristotle in the Nicomachean Ethics (NE I, 6) — but it was affirmed by Iris Murdoch (1970), and forms part of the natural law view defended by Michael Moore (1982).

None of these answers is without difficulties. While there are contemporary defenders of Hobbesian moral theories (see Gauthier 1986), there is no one who is on record defending Hobbes’s interesting combination of a thoroughgoing subjectivism about the good along with an account of a dominant substantive good around which the moral rules are formulated. The basic reason for this just seems to be that Hobbes’s arguments that the human desire for self-preservation is such an entirely dominant desire are implausible, and there do not seem to be any better arguments available. The Platonic version of the view has struck many as both too metaphysically ornate to be defensible, on one hand, and as not fitting very well with a conception of ethics grounded in nature, on the other. While the Aristotelian version of the view has also been charged with some of the metaphysical excesses that the Platonist view allegedly countenances, most contemporary natural law theory is Aristotelian in its orientation, holding that there is still good reason to hold to an understanding of flourishing in nature and that none of the advances of modern science has called this part of the Aristotelian view into question. (For defenses of such Aristotelian accounts of the good, see Foot 2001, Thompson 1995, and Thompson 2004.)

Another central question that the natural law tradition has wrestled with concerns our knowledge of the basic goods. How can we come to know these fundamental goods?

Return to Aquinas’s paradigmatic natural law position. His account of our knowledge of the fundamental goods has been understood in different ways (Murphy 2001, ch. 1). Some have understood Aquinas as affirming a theory of our knowledge of the fundamental precepts of the natural law that we can label ‘derivationism.’ The idea here is that we can derive from a metaphysical study of human nature and its potentialities and actualizations the conclusion that certain things are good for human beings, and thus that the primary precepts of the natural law bid us to pursue these things (cf. Lisska 1996). One can imagine a Hobbesian version of this view as well. One might say that by a careful study of the human being’s desire-forming mechanisms, one can see that there are certain things that would be necessarily desired by biologically sound human beings, and thus that the human good includes these items. (Hobbes in fact produces such arguments at [EL], I, 7.) While a natural law theorist might downplay the importance of derivationist knowledge of the natural law, it is hard to see how a consistent natural law theorist could entirely reject the possibility of such knowledge, given the view that we can provide a substantial account of how the human good is grounded in nature: for to show that the human good is grounded in nature is to show that human nature explains why certain things are goods, and it is hard to see how one could affirm that claim while entirely rejecting the possibility of derivationist knowledge of the human good (see Murphy 2001, pp. 16–17). Some have thought, echoing criticisms of natural law theory by those entirely hostile to it, that derivationist theories of practical knowledge fall prey to ‘Hume’s Law,’ that it is impossible to derive an ‘ought’ from an ‘is,’ that is, any normative truth from any set of nonnormative truths. The most that this can show, though, is that the natural law theorist needs an account of those bridge truths that enable us to move between claims about human nature and claims about human goods.

It must be conceded, however, that a consistent natural law theorist could hardly hold that derivationist knowledge of the human good is the only such knowledge possible. For it is part of the paradigm natural law view that the basic principles of the natural law are known by all, and the sort of arguments that would need to be made in order to produce derivationist knowledge of the human good are certainly not had (or even have-able) by all. (Recently Jensen (2015) has offered a thorough defense of a derivationist account that aims to take such worries into account.) Another way that Aquinas’s account of knowledge of the fundamental goods has been understood — and it is an understanding better able to come to grips with the widespread knowledge of fundamental goods — can be labeled ‘inclinationism.’ On this view, one’s explicit grasp of the fundamental goods follows upon but is not derived from one’s persistent directedness toward the pursuit of certain ends, which directedness involves an implicit grasp of these items as good. So human beings exhibit a tendency to pursue life, and knowledge, and friendship, and so forth; and reflection on this tendency occasions an immediate grasp of the truth that life, and knowledge, and friendship, and so forth are goods. The affirmation of the claims ‘life is good,’ ‘knowledge is good,’ ‘friendship is good,’ etc. makes intelligible the persistent pursuit of these ends by rational beings like us.

While inclinationism and derivationism are distinct methods, they are by no means exclusive: one can hold that knowledge of fundamental goods is possible in both ways. Indeed, it may well be that one way of knowing can supplement and correct the other. There may be some goods that are easier to recognize when taking the speculative point of view, the point of view of the observer of human nature and its potentialities, and some that are easier to recognize when taking the practical point of view, the point of view of the actively engaged in human life. Indeed, by connecting nature and the human good so tightly, the natural law view requires that an account of the good reconcile these points of view.

There are, of course, reasons to be worried about both of these ways of knowing basic goods — worries that go beyond general skeptical doubts about how we could know any normative truths at all. Derivationists have to explain how we come to know what counts as an actualization of a human potency, and have to explain how we connect these via bridge principles with human goods. Inclinationists have their own troubles. In particular, they need to deal with the fact that, even if they are not in the business of deriving goods from inclinations or identifying the goods precisely with what we tend to pursue, they take as their starting point human directedness. And it has been rightly noted that human directedness is not always a lovely thing. Power and prestige seem to be a matter of human directedness — at least as much so as, say, aesthetic enjoyment and speculative knowledge — but they do not make it to the natural law theorist’s catalog of goods (though they do appear to be part of the good in Aristotle’s picture; cf. the discussion in Hare 2001, p. 14). While these difficulties persist for inclinationist and derivationist accounts of knowledge of the basic goods, they may well be eased if one affirms both accounts: one might be able to use inclinationist knowledge to provide some basis for bridge principles between knowledge of human nature and knowledge of human goods, and one might be able to use derivationist knowledge to modify, in a non-ad-hoc way, the objectionable elements of the account that one might be bound to give if proceeding on an inclinationist basis alone. (Reconciling the inclinationist and derivationist approaches is a theme in Murphy 2001 and Wall 2010.)

The dialectic between inclinationist and derivationist accounts of knowledge of the first principles of the natural law is central to natural law epistemology, but there are other accounts of knowledge of the natural law that focus on its social dimension. Alasdair MacIntyre has argued, for example, that the first precepts of the natural law are to be understood as those that make possible communal inquiry into the nature of the good: both the positive and the negative precepts are enabling rules, norms that enable humans to engage in common pursuit of knowledge of what is valuable. The norms of the natural law preclude our acting toward other potential partners in inquiry in way that would undermine the possibility of common pursuit of the good (MacIntyre 1994, 183–184). To come to know the primary precepts of the natural law, then, is a matter of coming to know what sorts of social relationships make possible common pursuit of common goods.

A distinct sort of social emphasis on knowledge of the natural law asks why we should think of knowledge of the natural law as arising exclusively or even predominantly either from one’s own immediate rational insight into what is implicit grasped or from some sort of derivation from the fact that one’s own inclinations of the will have certain determinate objects. One might hold that we have excellent reason to believe that knowledge of the natural law unfolds historically. Jean Porter, for example, argues that by close attention to the various sorts of social structure exhibited cross-culturally, we can extract the necessary “starting points” (Porter 2005, p. 132) to begin assessing various proposed norms of action. And Jonathan Crowe emphasizes knowledge of the natural law as the outcome of the attempt to interpret human practices, and will be an historically-extended process that will be necessarily an unfinished task (Crowe 2019, pp. 6-7; there is also discussion of interpretation of social practices as a means to knowing the natural law in Murphy 2007).

A developed natural law theory includes within it a catalog of the fundamental goods, the basic values upon which the principles of right are founded. Suppose that we follow at least the inclinationist line, taking it to be faithful to the natural law idea that knowledge of the basic goods is widely distributed. Our task then is to provide an explicit account of those goods implicit knowledge of which is manifested in human inclination toward certain ends. What are the goods affirmation of which makes intelligible these inclinations?

It is clear from this way of putting the question that even if natural law theorists are right that this implicit knowledge is widely distributed, it would be easy for natural law theorists to disagree in their catalogs of basic goods. For the task here is that of formulating propositionally, and in as illuminating a way as possible, what items need be affirmed as intrinsically good in order to make sense out of our inclinations. And there are, unsurprisingly, disagreements in catalogs of basic goods. The goods that Aquinas mentions in his account include life, procreation, social life, knowledge, and rational conduct. Grisez 1983 includes self-integration, practical reasonableness, authenticity, justice and friendship, religion, life and health, knowledge of truth, appreciation of beauty, and playful activities (pp. 121–122). Finnis 1980 includes life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion (pp. 86–90). Chappell 1995 includes friendship, aesthetic value, pleasure and the avoidance of pain, physical and mental health and harmony, reason, rationality, and reasonableness, truth and the knowledge of it, the natural world, people, fairness, and achievements (p. 43). Finnis 1996 affirms a list much like Grisez 1983, but includes in it “the marital good” (p. 5). Murphy 2001 includes life, knowledge, aesthetic experience, excellence in work and play, excellence in agency, inner peace, friendship and community, religion, and happiness (p. 96). Gomez-Lobo 2002 includes life, the family, friendship, work and play, experience of beauty, theoretical knowledge, and integrity (pp. 10–23). Crowe (2019) includes life, health, pleasure, friendship, play, appreciation, understanding, meaning, and reasonableness (p. 35).

Aside from the inevitable differences in lists of goods produced by natural law theorists, there are also more focused debates about the inclusion of particular alleged goods within the natural law theorists’ lists. Note, for example, that of the lists above, only Chappell’s includes pleasure and the absence of pain. Whatever else we say here, it seems that common sense is initially on Chappell’s side: what seems more obvious than that pleasure and the avoidance of pain are basic reasons for action? The reasons for rejecting pleasure and the absence of pain from the list of goods are various: some writers argue, following Aristotle, that pleasure is not a good in abstraction from the activity in which pleasure is taken; some that the absence of pain is not a completion or a fulfillment of human nature, and thus cannot be among the basic goods; some that the avoidance of pain is simply an instance of some other basic good, such as inner peace. What this debate illustrates is the extent to which the formulation of a catalog of goods is not a straightforward matter. Everyone agrees that one who avoids touching a hot stove in part to avoid the awful pain has some reason to avoid touching the stove. The difficulty is to bring together our various sources of knowledge about the good to formulate an account that explains well precisely why it is that such an act is reasonable. These sorts of debates reappear with respect to goods like life (is life intrinsically or instrumentally good? is merely being alive intrinsically good, or is life only intrinsically good when one is enjoying a certain level of vitality?), religion (is harmony with God really a human good? is it merely a kind of friendship? does its status as a good depend on whether there is a being such as God?), and what Finnis and Grisez now call the ‘marital good’ (is the good of marriage simply an amalgam of various other goods, as friendship, procreation, rational agency, or is it really a distinct, analytically separable value?). Thus Echeñique denies that life can be a basic good in the way that natural law theorists typically take it to be (Echeñique 2016); Cuneo has rejected religion as a basic good (Cuneo 2005, pp. 116–118); and Macedo has argued against the marital good (Macedo 1995).

Suppose that we were to have in hand satisfactory accounts of natural goodness and our knowledge of it, along with a rationally defensible account of the basic goods that are the fundamental reasons for action. All that we would have so far is the natural law theorist’s account of what we might call minimally rational action — action that seeks to realize some good. What we would not have yet is a full account of right action. For we are frequently in situations in which there are various different courses of action that we might pursue, each of which promises to realize some good; are there no guidelines to which we might appeal in order to show some of these choices superior to others? After all, some of even the most obviously morally wrong actions can be seen to promise some good — a robber might kill in order to get the money he needs to pursue genuine goods — and the natural law theorist wants to be able to say why these obviously morally wrong actions are morally wrong. As we have seen, the paradigmatic natural law view holds that there are some general rules of right that govern our pursuit of the various goods, and that these rules of right exclude those actions that are in some way defective responses to the various basic goods. How, though, are we to determine what counts as a defective response to the goods?

There are at least three possibilities. One might appeal to a master rule of right that can be used to generate further rules; call this the master rule approach. One might appeal to a methodological principle by which particular rules can be generated; call this the method approach. Or one might appeal to some standard for distinguishing correct and incorrect moral rules that is not understandable as a method; call this (for reasons we shall see shortly) the virtue approach.

On the master rule approach, the task of the natural law theorist is to identify some master rule which bears on the basic goods and, perhaps in conjunction with further factual premises, is able to produce a stock of general rules about what sorts of responses to the basic goods are or are not reasonable. While it is far from clear whether there was a single way that Aquinas proceeded in establishing moral norms from the primary precepts of the natural law in the Summa Theologiae , John Finnis has argued (Finnis 1998, p. 126) that Aquinas employed this master rule approach: on his view, Aquinas held that this master rule is the rule of universal love, that one should love one’s neighbor as oneself. This rule bids us to respond to the good lovingly wherever it can be realized, and from it we can see that certain ways of responding to the good are ruled out as essentially unloving. Grisez clearly employs this approach: he writes that the first principle of morality is that “In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment” (Grisez 1983, p. 184). This first principle, Grisez says, contains implicitly within it various “modes of responsibility” from which particular moral rules can be derived.

The central difficulty with this employment of the master rule approach is that of explaining how we are to grasp this first principle of morality as correct. What is the relationship between our knowledge of the basic goods and our knowledge of the master rule? When Grisez defends his master rule, he writes that its status is due to a certain function that a first principle of morality must perform: “It must provide the basis for guiding choices toward overall human fulfillment. As a single principle, it will give unity and direction to a morally good life. At the same time, it must not exclude ways of living which might contribute to a complete human community” (Grisez 1983, p. 184). But this presupposes an awful lot: why should we assume in advance that a proper response to the basic goods must be one that is oriented toward a “complete human community”?

On the method approach, by contrast, there is no need for a master principle that will serve as the basis for deriving some particular moral rules. The idea here is the natural law theorist needs not a master rule but a test for distinguishing correct moral rules from incorrect ones. We know from our earlier consideration of the paradigmatic natural law view that the test for distinguishing correct moral rules from incorrect ones must be something like the following: if a moral rule rules out certain choices as defective that are in fact defective, and rules out no choices as defective that are not in fact defective, then it is a correct moral rule. What would distinguish different employments of the method approach is their accounts of what features of a choice we appeal to in order to determine whether it is defective. The knowledge that we have to go on here is our knowledge of the basic goods. If a certain choice presupposes something false about the basic goods, then it responds defectively to them. So a moral rule can be justified by showing that it rules out only choices that presuppose something false about the basic goods.

This is very abstract. Here is an example of an employment of this approach. While Finnis now affirms Grisez’s master rule approach, in his 1980 work he defends various principles of practical reasonableness without adverting to a master rule. He argues, for example, that it is always wrong to intend the destruction of an instance of a basic good (Finnis 1980, pp. 118–123). (So, no lying, for lying is an intentional attack on knowledge; no murder, for murder is an intentional attack on life, and so forth.) Why is it always wrong to do so? It would be unreasonable simply to try to destroy an instance of a basic good, for no further purpose: for that would treat an instance of a basic good as something that it is not — that is, as valueless. And it would be wrong to destroy an instance of a basic good for the sake of bringing about some other instance of a basic good: for that would make sense only if the good brought about were more valuable than the good destroyed, but on Finnis’s view all distinct instances of basic goods are incommensurable — none is of more, less, or equal value with any other. So the rule forbidding intentional destruction of an instance of a basic good is justified because it rules out only choices that presuppose something false about the nature of the basic goods. (For a working out of the method approach, see Murphy 2001, ch. 5.)

The method approach presupposes less of substance about morality than the master rule approach presupposes. But it requires us to draw upon an interesting and rich knowledge of the features of the basic goods. Whether this information is available is a matter for debate. But the method approach has the advantage of firmly rooting natural law arguments for moral principles in the goods the pursuit of which those moral principles are supposed to regulate.

Neither the master rule nor the method approach implies that the natural law theorist must hold that all right action can be captured in general rules. The natural law view is only that there are some such rules. It is consistent with the natural law position that there are a number of choice situations in which there is a right answer, yet in which that right answer is not dictated by any natural law rule or set of rules, but rather is grasped only by a virtuous, practically wise person. It is, however, open to the natural law theorist to use this appeal to the judgment of the practically wise person more widely, holding that the general rules concerning the appropriate response to the goods cannot be properly determined by any master rule or philosophical method, but can be determined only by appeal to the insight of the person of practical wisdom. If it really is wrong in all cases to tell lies, as Aquinas and Grisez and Finnis have argued, our grasp of this moral truth is dependent on our possessing, or our being able to recognize the possessor of, practical wisdom. If such a person never tells lies, because she or he just sees that to tell lies would be to respond defectively to the good, then that lying is always wrong is a rule of the natural law.

It may be true that by the virtue approach we can learn of some general rules of the natural law. What is more interesting is whether a defender of the virtue approach would be right to dismiss the claims of the master rule or method approaches. (For, after all, one might be able to learn that lying is wrong either through moral argument or through the perceptive insight of practical wisdom.) And it does not seem that the defender of the master rule or method approach should be particularly concerned to discredit the virtue approach. For if defenders of the master rule or method approach recognize the existence of a capacity of judgment like practical wisdom, then it would be strange to allow that it can be correctly exercised on a number of particular occasions while denying that we might learn of general rules from observing patterns of its exercise on various occasions.

One challenge to these various natural law attempts to explain the right in terms of the good denies that the natural law theorist can provide adequate explanations of the range of norms of right conduct for which moral theories ought to be able to provide explanations. That is, one might allow for the sake of argument the natural law theorist’s identification of some range of human goods, while denying that he or she can identify, and justify in natural law terms, adequately concrete modes of appropriate response to those goods. This challenge cannot be profitably addressed here; what would be required would be a close examination of the merits of particular natural law explanations of particular moral norms (a task taken up in, for example, Grisez 1993). One might also look to recent attempts to apply the natural law view to pressing contemporary moral problems — those of research ethics (Tollefsen 2008), economic justice (Chartier 2009), environmental ethics (Davison 2009), business ethics (Gonzalez 2015), the ethics of suicide and euthanasia (Paterson 2015), and population ethics (Delaney 2016), for example — as tests of the fruitfulness of that position.

A more radical critique of the paradigmatic natural law account of the connection between the good and the right calls into question the very idea that one can get principles of moral rightness merely from what constitutes a defective response to the good. According to this critique, while it is true that one might be able to come up with some notion of unreasonableness by appeal to the notion of what is defective response to the human goods, the notion of moral rightness belongs to a family of concepts distinct from that to which the notion of reasonableness belongs. On this view, moral rightness belongs to the obligation family, and the concept of obligation is irreducibly social : one is under an obligation only if one is subject to some sort of demand in the context of a social relationship (see, for an example of this view from a theological voluntarist perspective, Adams 1999, pp. 238–241; see, for an example of this view with a Kantian twist, Darwall 2006). It is part of the logic of obligation that when one is under an obligation, that condition has resulted from a demand imposed on him or her by some other party. So, according to this line of criticism, the paradigmatic natural law view is unable to show that the natural law is intrinsically morally authoritative: the precepts of the natural law can be rules that all of us human beings are obligated to obey, that it would be wrong for us to disobey, and that we would be guilty for flouting only if these precepts are imposed upon us by an authoritative being — perhaps a being like God.

The intrinsic moral authority of the natural law has been a matter of debate since Aquinas: it was a central issue dividing Aquinas’s view from those of Scotus, Ockham, and Suarez. It continues to be an issue between natural law theorists like Grisez (1983) and Finnis (1980) on one hand and theological voluntarists like Adams (1999) and Hare (2001) on the other. Natural law theorists have several options: they can argue against any meaningful distinction between morality and the reasonable more generally (Foot 2000, pp. 66–80); or they can embrace the distinction, but hold that on the clearest conception of the moral that we possess, the natural law account of reasonableness in action adequately satisfies that conception (Murphy 2001, pp. 222–227); or they can hold that the notion of ‘morally right’ is so muddled that it should be jettisoned, leaving in its stead the notion of the reasonable (cf. Anscombe 1958). It is at present far from clear which of these avenues of response the natural law theorist has most reason to embrace.

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5 Natural Law and the Separation of Law and Morals

Published: October 1994
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Some books make a radical impression upon the reader by the boldness and novelty of the theses they state; to write such a book is a rare and difficult achievement. It is scarcely easier, though, and no less rare, to make a radical impression by a careful restatement of an old idea, bringing old themes back to new life by the vigour and vividness with which they are translated into a contemporary idiom. That has been the achievement of John Finnis’s Natural Law and Natural Rights , a book which for British scholars has brought back to life the classical Thomistic/Aristotelian theory of natural law. A theory which more than one generation of thinkers had dismissed as an ancient and exploded fallacy kept alive only as the theological dogmatics of an authoritarian church was rescued from a whole complex of misunderstandings and misrepresentations. At the same time, it was exhibited as a thoroughly challenging account of law, fully capable of standing up to the theories which were regarded as having refuted and superseded it, while taking into account and accepting into its own setting some of the main insights or discoveries of these theories.

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Analyse and evaluate the strengths and weaknesses of natural moral law as a definitive ethical theory

Analyse and evaluate the strengths and weaknesses of natural moral law as a definitive ethical theory (12)

The strengths that can be ascribed to natural law are a product of its absolutist deontological view of morality. This is to say that it enables people to establish common rules in order to structure communities. This can be an attractive option in a society such as our, enduring a relativist era that is suffering from a break down in traditional social structures and moral uncertainty.

Aquinas’s view of reason as a tool for moral understanding and his idea of a common nature and morality for all people gives natural law a universality that goes beyond any one religion or culture. This can be seen as a very positive aspect considering the intercultural strife and disharmony that exists between cultures and societies which all uphold similar basic principles such as conserving life.

Natural moral law gives a concrete reason to be moral and provides a firm basis for individuals to refuse to cross moral boundaries. It also provides justification and support for those ideas popular in today’s world such as human rights, whilst condemning actions such as torture, irrespective of consequences. Natural law also provides a way of living, giving guidance on day-today questions of how to live life and then links them to the fundamental principles of life. It provides a complete system of moral living in step with what it is to be human. This may be a most attractive proposition for some, which suggests that it is most certainly strength of natural moral law.

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Some have challenged Aquinas. They have questioned the existence of a common natural law that is apparent and self-evident. One who made such a challenge was Neilson In his article ‘An examination of the Thomistic theory of natural moral law’. Neilson argued that human nature isn’t as self-evident as Aquinas claims and cites anthropological studies such as Scandinavians who killed their elderly relatives in order to let them into Valhalla, claiming that these differing moral standards cast serious doubt over the idea of a common natural law within all human societies. Nielson goes on to say that Natural law obscures these basic moral differences that exist between human societies.

There is also the possibility that a natural law does exist, but it is more complex than Aquinas believed. For example, Aquinas ruled homosexual activity as un-natural as it does not lead to pro-creation, but perhaps for those involved they find love and purpose in life through expression of their sexuality. This example serves to highlight the suggestion that perhaps what is ‘natural’ differs depending upon circumstances.

In their book The Puzzle of Ethics Peter Vardy and Paul Grosch challenge the way in which Aquinas works from general principles to lesser purposes. Aquinas maintains that as human beings must preserve the species, every discharge of semen should be associated with life generation. To use the genitals in other ways is immoral. However, one could perhaps justify sexual acts on the premise that they further the couple’s relationship. If this is the case then it is not necessary for every discharge of semen to be associated with life generation. It could be then that Aquinas was wrong in his deductions, as they may have been based upon an incorrect view of human life. This was perhaps as a result of thirteenth century naivety on Aquinas’ part.

Vardy and Grosch also consider Aquinas’ view of human nature unholistic. Perhaps the genitals are for pleasure rather than reproduction, or some other purpose, maybe even a multitude of purposes. It could also be that sexual activity does not only found in the genitalia. Psychologists have drawn much more complex pictures of human nature than that presented in Aquinas’ simplistic account. In contrast to Aquinas’ apparent belief in a fragmented collection of parts, today the human body is seen as one psychophysical whole.

Aquinas’ natural moral law is a Christian ethic and yet Jesus quite clearly opposes legalistic morality in the New Testament. Jesus debated frequently with moral legalists of his time, the Pharisees. Similarity can be found between Pharisaic law and natural moral law. As a result, some, such as Joseph Fletcher argue that Jesus himself has rejected natural moral law.

Some Christian ethicists argue in favour of a morality that is based more on the person involved rather than the acts committed. One such writer is Kevin T. Kelly, who in his book ‘New directions in Moral Theology’ identified two traditions found in Christian morality. One of these is centred upon acts, and the other is centred on the dignity of a human person. Kelly sees both of these strands of morality at work in recent Christian thinking. The Constitution of the Roman Catholic Church, Gaudium et Spes, maintains that ‘the moral aspect of any procedure is influenced by intentions and motives but also objective standards, based on the nature of the human person and his acts’. Kelly argues for a morality based on the human person as author and director of any actions, and moves away from the idea that actions have moral value in themselves. A more extreme form of personalism as demonstrated by Kelly, can be found in situation ethics, which abandons an uniform legalists approach to morality in favour of consideration of the situation and the results of actions that in turn determine the goodness or badness of an action and not the action in itself.

Given the criticisms raised against natural law, it is worth pointing out that natural law may not be as rigid as it my first appear. Aquinas observed that although primary precepts were unchangeable, the secondary precepts might change in some particular aspects, or in a case in which special reasons make it impossible to observe them.

In trying to decide then, if natural moral law can be held as a definitive ethical theory one has to realise that although the theory isn’t as rigid as it first appears it is still faced with problems, which may well, be insurmountable. The conclusions of the Roman Catholic Church regarding the prohibition of activities such as artificial contraception and homosexual acts, as already shown, can be subject to convincing challenge. It is also important to note that in the absence of clear guidelines it is impossible to know definitively what is and what is not natural and so therefore rendering the issue wholly subjective. Once an issue becomes subjective, and it is difficult to produce an instance when subjectivity would be absent, natural moral law has to fail as a definitive ethical theory.

Analyse and evaluate the strengths and weaknesses of natural moral law as a definitive ethical theory

Document Details

Word Count 1105
Page Count 2
Level AS and A Level
Subject Religious Studies & Philosophy

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Natural Law summary notes

This page contains summary revision notes for the Natural law topic. There are two versions of these notes. Click on the A*-A grade tab, or the B-C grade tab, depending on the grade you are trying to get.

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Aquinas’ Natural law ethics AO1

Aquinas claimed there are four tiers of law:
Eternal law – God’s mind and omnibenevolent plan for the universe – this is beyond our understanding.
Divine law – the bible
Natural law – the orientation towards the good built into our nature by God
Human law – the laws we make (which should follow the natural & divine law).
Telos – our purpose is to glorify God by following the primary precepts of natural law.
This telos is built by God into our nature because Aquinas thinks we are all born with an ability called synderesis – the ability to know first the synderesis rule – to do good and avoid evil – and then the primary precepts of natural law:
Preserve human life, reproduce, educate, orderly society, worship God.
We then apply the primary precepts to moral actions/situations and get a secondary precept – a judgement on that particular action/situation. This process is called conscientia.
E.g. euthanasia goes against the primary precept to preserve human life – therefore ‘euthanasia is wrong’ would be a secondary precept.
Double effect. Some actions have two effects – one that goes against the primary precepts, and one that fits with them.
E.g. killing someone in self-defence – one effect is killing someone, but the other effect is saving your life.
Aquinas says in situations like this, it is morally acceptable so long as you intended to bring about the good effect and the bad effect was beside your intention.
There must also be proportionality – e.g. if you use more force than is necessary then that’s no longer acceptable.
The traditional Catholic approach adds some further conditions:
There is also a condition that the bad effect not be an intrinsic evil – like killing an innocent person or adultery.

Whether Natural law is outdated

J S Mill says the divine law of the bible – especially old testament – was clearly only relevant in an ancient more barbaric time.
Mill’s argument can also be applied to Natural law ethics.
It was created in a mediaeval socio-economic time and its rules reflect that.
In Aquinas’ time, having sex outside marriage was often a death sentence because sex led to children, and single mothers struggled to survive. There was a great need for reproduction, because so many children died – which was part of why it was against homosexuality, because of the intense need for reproduction. Homosexuality was also seen as against the nuclear family dynamic, which was also needed for reproduction and education.
There was around 60-70 times the murder rate in Aquinas time, showing the clear need for really strict rules against killing – which is why being against euthanasia made sense then.
Today, these socio-economic conditions are no longer present. We now have effective contraception and support for single parents. We have overpopulation, and it’s no longer the case that children outside marriage are doomed to lack education.
The reasoning behind Aquinas’ views on the primary precepts, including their application to euthanasia and sexual ethics, no longer apply.
It is outdated. In Aquinas’ time, his reasoning made sense – but that was because of the dire situation society was in.
outdated doesn’t mean wrong – it just means popular opinion has shifted.
If Hitler had won WW2, democracy would have come to be seen as ‘outdated’.

evaluation:

However – the Critique is not just that Aquinas is outdated in that popular opinion has changed – the best version of the ‘outdated’ critique is to argue that Aquinas’ theory was actually a reaction to his socio-economic context and since that has changed, Natural law is no longer relevant.
Aquinas thought that he discovered the primary precepts through human reason, as God designed. However, arguably it’s a simpler explanation that Aquinas was simply figuring out what would have been good for people in his socio-economic condition. That the resulting principles actually came from God was only in his imagination.

Modern science’s rejection of final causation (telos)

There’s no scientific evidence for purpose/telos – science can explain everything in the universe, or is at least progressing towards explaining everything, without needing the concept of ‘purpose/telos’.
At the beginning of the enlightenment period, scientist Francis Bacon claimed that the concept of ‘telos’ was unscientific.
The modern scientific view is that the universe is just composed of atoms and energy in fields of force. There is no space in our scientific understanding of the universe for anything like purpose or telos to exist.
Physicist Sean Carroll concludes purpose is not built into the ‘architecture’ of the universe.
Telos looks like an outdated unscientific term that people just project onto reality.
Aristotle said an acorn must have the telos of growing into an oak tree. But we now understand thanks to modern science that this can be explained purely through material and efficient causation – the DNA of acorn.
Similarly, human nature might behaviourally orient us, but this too can be explained by evolution.
Evolution in a herd species will generate instincts like empathy. These are not intrinsically ‘moral’ behaviours from a God, they are just what were evolutionarily advantageous to our species.
So again, science can explain everything about us without the need for the concept of telos – making it an unscientific concept.
Human nature is not the result of anything God-given like telos.
Purpose is nonetheless an important part of human life.
Polkinghorne argues that science can explain the ‘what’ but not the ‘why’. Science investigates what is true of the universe. Polkinghorne claims we do need the concept of purpose, to explain why the universe exists in the way it does. Science can’t explain that.
Max Tegmark argues one day scientists might actually explain why the universe exists. This would reduce the ‘why’ to non-teleological scientific concepts.
Or, Russell could be right that there is no ‘why’, the universe could be a brute fact. Dawkins develops this point. Just because it’s possible to ask the question ‘why’, that doesn’t mean there actually is a why.
Either way, we have no basis for thinking telos exists nor any need for it as an explanation.
So, purpose only exists in people’s minds.
This critique of Aquinas is successful because of the clear power of science.
Science has transformed our world through its immense explanatory power. Although it cannot absolutely disprove telos, it does show that we have no reason to believe that telos exists. Ockham’s razor further justifies this approach. We are justified in believing the simpler explanation that works. If we have a scientific explanation it is simpler than those which require supernatural beings.
Aquinas’ theory fails – scientific approaches are better explanations.

Natural law ethics & Cross-cultural moral variation

Fletcher argues a weakness of Aquinas’ approach is cross-cultural moral differences.
Aquinas claimed that conscience involves the ability of reason to know the primary precepts, to guide us towards our good end (telos). But if that was true, it should be universally true of all humans regardless of their culture. We would expect to find more moral agreement.
Different cultures have different moral views – e.g. some countries are more religious and thus ban euthanasia, but other countries allow euthanasia.
Not only is there disagreement, it tends to fall along cultural boundaries. Culture and social conditioning is therefore the better explanation of what determines our moral compass, not telos. This was the view of psychologists like Freud and Skinner. Their scientific approach looks stronger than Aquinas’.
Aquinas would disagree – he would say that even though there’s disagreement there is still a core set of moral views all cultures share which is very similar to the primary precepts..
Everyone agrees that killing for no reason is wrong, everyone agrees an orderly society is good, reproduction is good, education is good.
Moral disagreement could just be the result of sinful and corrupt cultures and original sin.

Evaluation

However, we have other, better, more scientific explanations of the core moral views found in all cultures.
Richard Dawkins argued our moral sense partly came from evolution – which programmed us with empathy to care about other people, reproduce, educate, etc, all of which is evolutionarily advantageous for a herd species like us.
Furthermore, there is just a practical requirement for a society to exist. Imagine a culture started allowing killing and stealing – it would fall apart and end. So no special explanation of cross-cultural moral codes is needed.
Conscience isn’t God’s design directing us towards our telos then. It’s from evolution, social conditioning and social practicality.
Aquinas’ supernatural explanation of explain cross-cultural moral agreement is an unnecessary hypothesis.
Aquinas’ whole theory of natural law is better explained by scientific analysis of the nature and nurture that goes into human moral decision making.
Freud’s scientific approach is a simpler and better explanation of our moral compass than Aquinas’ theological approach.
So, we do not need the idea of natural law built into us by a God as our telos. That is an unnecessary hypothesis.

Aquinas’ Natural theology vs Karl Barth’s protestant critique

A strength of Aquinas’ moral theory is its foundation in natural theology.
In Romans, St Paul comments that the law of God is written on the heart of every human, even those who have never heard of God.
This supports Aquinas’ proposal of a natural law in addition to the divine law.
It is also logical for Aquinas to explain this through Aristotle’s concept of telos – that every being’s nature is orientated towards its good end.
Karl Barth – rejected natural theology as placing a dangerous overreliance on human reason.
Reason is corrupted by original sin. Original sin might not have totally destroyed reason, but it does make it unreliable.
“The finite has no capacity for the infinite”.
Our finite minds have no – zero – capacity to understand God’s infinite nature.
So, we should not use reason to know God.
If we make a mistake when trying to use reason to know God, then we will gain a false view of God and could end up worshipping the wrong thing – perhaps even worshipping something earthly – which is idolatry. This is dangerous as it can lead to the worship of human things like nations, fatherlands, and that he argued contributed to Nazism.
Barth concluded we should solely rely on faith in the Bible.

Evaluation:

Barth’s argument is unsuccessful because Aquinas isn’t saying reason can grasp God’s infinite being.
With natural law, reason isn’t grasping God’s infinite eternal law – just the lesser natural law within our nature.
Through reason we can also know that God has a quality of love/power/knowledge which is analogous to ours yet proportionally greater than our own.
Aquinas’ approach is successful because he takes care not to claim too much about God based on reason.
Reason may sometimes indeed be corrupted, but that doesn’t mean it will always be corrupted. Sometimes, with God’s grace, human reason is capable of knowing something about God.

Proportionalism & the double effect

Proportionalists like B. Hoose argued that the double effect didn’t make natural law flexible enough.
Their argument is that God designed the natural law and our telos within the garden of Eden. This means it only functions in our pre-lapsarian state. Back then, following the natural law perfectly enabled flourishing.
In this fallen world, acting on the primary precepts can actually be disabling of flourishing because of the presence of ontic evil (whatever inhibits flourishing, like suffering).
Proportionalists conclude that following natural law is valid, but if an action causes a greater balance of ontic good (enables flourishing) compared to ontic evil then it is morally justified – even if it goes against the primary precepts.
This gives the double effect much more flexibility and would even allow acts previously condemned as intrinsically immoral like killing innocents.
Pope John Paul II rejected proportionalism, arguing it is an invalid development of true natural law ethics.
He argues that the point of natural law is our intentional alignment with God’s moral law. That is our telos.
Proportionalism forgets that our true telos is to follow God, not to secure our happiness, nor even our lives.
Following God’s moral law is more important than enabling our flourishing. In fact, doing intrinsically evil acts corrupts our alignment with God. JP2 points to the example of Christian martyrs who died for their faith. It is better to die than do something evil.
Proportionalism misunderstands the point of Christian ethics, which is to follow God’s moral law.
JP2 has a point. The very concept of accusing Christian ethics as ‘inflexibile’ misunderstands it. If God has decreed certain laws, then it is right for us to follow them, no matter what happens to us.
However, the proportionalists also have a point that flourishing was meant to be a component of following the natural law – as Aquinas said.
Furthermore – consider Fletcher’s case of the family faced with the choice of killing their crying baby or all being discovered by bandits who would kill them all, including the baby, if discovered.
JP2 has selected a self-serving example of the christian martyrs. Sacrificing oneself for the sake of others is valid in Christianity, as shown by the example of Jesus.
However, in Fletcher’s example, if we do not kill the baby – we would be sacrificing other people (the other family members), including other children, not just yourself, simply to do the ‘right’ thing by all dying. Is it really ok to get your other kids killed, just because you wouldn’t kill one of them?
This is a terrible moral choice, but it does show the limits of traditional natural law ethics.
The presence of ontic evil in our fallen world is relevant to the moral situation in a way that John Paul II did not adequately address.

Natural Moral Law Theory in a Nutshell

Natural Law is an example of a deontological, absolutist ethical theory. Its origins can be traced back to Greek philosophy, specifically that of Aristotle and the Stoics. Aristotle was concerned with the telos or purpose of human existence and thought that it was to achieve eudaimonia – a state of maximal human flourishing which is the end product of an attempt to develop the various personal qualities that would nowadays cause us to describe someone as virtuously ‘well-rounded’ and fulfilled in what they do. For the Stoics, the optimum life was one lived in accordance with our natural inclinations.

In its theistic form, Thomas Aquinas is most famously associated with this theory. According to Aquinas the fact that we are made in the image of God means that we are all invested with what he called the synderesis principle, an essentially rational and God-given ability to seek good and avoid evil. In addition to the Bible, Aquinas thought that God’s telos for us is revealed through using synderesis to identify and act on our natural inclinations.

These inclinations have been famously stated in the form of what are known as the Primary Precepts: heterosexual reproduction, the preservation of life, the desire to educate our young and to live in a community, and to worship God. In moral decision-making, we combine our rationality with these precepts, to produce secondary precepts: maxims that are specific to the situation at hand that we should then act upon.

For example, from the fact that we are inclined to reproduce heterosexually, secondary precepts can be generated that oppose the use of artificial forms of contraception and homosexual activity. The inclination to educate our young and live in a community might lead to the formulation of secondary precepts that oppose the use of child labour in sweatshops, or that might prompt an employee of a company that is illegally polluting the local environment to blow the whistle on this activity. The poor health conditions in sweatshops put people’s lives at risk, which again might lead to an act of whistle-blowing. If an employer forces us to work on the Sabbath this may also make us ponder whether we should change employers in the interest of worshipping God.

Aquinas recognised that we can rationally pursue apparent good rather than real ones (because of our fallen condition). So a pupil who takes a break from stressful revision to party all night might think this is sensibly justified at the time that they make this decision but regret it later when they are too tired to take in vital information the next day.

Ultimately, Aquinas thought that out telos was to achieve union with God. Living in accordance with the precepts while we are here on earth is one way to ensure that.

Essay – Full mark 2018 essay on euthanasia & Natural law

October 8, 2018.

Assess the view that natural law is of no help with regard to the issue of euthanasia. OCR Paper H573/2 June 2018

Here is an answer written in the actual June 2018 exam that secured full marks. I have added comments to demonstrate what is good and not so good about this answer. You don’t have to write a perfect answer to gain full marks. Read my comments in italics and see if you agree. PB

Natural Law is a religious ethical theory that puts reason at the centre of moral thought and decisions. Euthanasia is a modern practice where a person/persons can be killed on their own terms, whether passively (switching of a life machine) or actively (lethal injection). In terms of the practices of euthanasia and whether it should be accepted, natural law is of no help and instead situation ethics should be adopted to the issue of euthanasia.

There are a number of good things about this opening paragraph: it has a clear thesis – situation ethics is to be preferred, although the candidate might have briefly hinted as to why. The opening emphasises reason, a point many candidates miss. And there is a clear definition of two types of euthanasia, with good issue of brackets for economy. Ia m not sure that euthanasia itself is an issue – there are issues involved in the moral debate such as slippery slope arguments or sanctity of life arguments. These might also have been hinted at rather than taking a broad approach.

Euthanasia is being widely adopted in modern western cultures as secularism is becoming more popular. There is more emphasis being placed on the quality of life rather then sanctity of life. Natural Law theory places special emphasis on the sanctity of life arguing that only God should have the power to take away a life.

Natural Law is an ancient theory deriving from the Greeks and particularly Aristotle. Aquinas took Aristotle and attempted to reconcile his theory of ethics with Christianity. So what the candidate is talking about here is Aquinas’ version of natural law which has been a dominant moral theory in the west, as it informs the moral theology of the Catholic Church. Note the synoptic link to the Christian Thought paper and secularism.

Natural Law is focused on the primary precepts and upholding its main components; worship God, live in an ordered society, reproduce, to learn and to defend the innocent. Euthanasia goes against possibly three of these primary precepts, and is therefore forbidden under natural law. The secondary precepts would argue that euthanasia is wrong as it goes against the precepts of defending the innocent. Killing someone voluntarily or non-voluntarily and worshipping God as only God should be able to take life away. In a period where quality of life is emphasised, natural law is incompatible with modern culture. Natural Law upholds the sanctity of life and any practice taking away life is wrong – in a society which allows this natural law is outdated. Aquinas lived when the church dominated society and culture and now the church and state are separate, showing now natural law should be adapted.

Aquinas finally gets a mention. The word ‘adapted’ is interesting as secondary precepts are meant to be adaptable, so Aquinas argues. Secondary precepts are ‘proximate conclusions of reason’. The candidate hasn’t really explored the tantalising hint in the first paragraph that natural law is a theory of human reason. I like the mention of three precepts here: for example, candidates often miss the implications that might exist for an ordered society if euthanasia was adopted (rise in court cases for example as relatives argue about whether passive euthanasia should be applied!).

Natural law also prohibits euthanasia on the grounds of real and apparent goods. Killing someone passively is an apparent good because it does not achieve long-term gratification as the person would be dead. However this view can be criticised as a person’s suffering would be cut shirt so best for the long-term – there is no more suffering. Many agree with natural law also b saying that euthanasia sets a dangerous precedent and makes a possibility of a ‘slippery slope’ when killing becomes natural. This is against human nature.

There seems to be a misunderstanding here about what a real and apparent good is. According to Aquinas, we cannot willingly and rationally do evil because we are by nature orientated towards the good. So if we objectively do evil it is because we subjectively believe through a defect of our reason that we are actually doing good. Because of a lack of clarity this paragraph doesn’t take the argument forward and could easily have been deleted in its entirety.

Another weakness of natural law is that it contradicts itself. Although the primary precepts prohibit euthanasia as it actively kills a person, the doctrine of double effect allows it. If a doctor keeps prescribing a patient more medicine, which eventually leads to an overdose, the is not the doctor’s fault and is permissible through the doctrine of double effect. This is a weakness as it seems to contradict earlier teachings from Aquinas. However it could also be seen as strength of natural law. The doctrine of double effect is a better developed by the catholic church in response to situation ethics ; it allows euthanasia to certain degree as well as upholding religious aspects – many see this as favourable and may provide a way to treat the issue of euthanasia.

It’s only a contradiction if you misunderstand the relationship between the absolute primary precepts and the secondary precepts which are never absolute. Aquinas, not the catholic church, introduces double effect way back in the thirteenth century – so it cannot be in response to the twentieth century theory of situation ethics.

Natural law is of no use to euthanasia and so situation ethics should be adopted. Joseph Fletcher was the founder of situation ethics and was at one point president of the euthanasia society in the USA. Situation ethics allows the practice of euthanasia as it focuses on the quality of life more. Firstly, Fletcher’s view of agape is much stronger as it accounts for the most loving thing to do. In certain situations, the most loving thing is to switch of the life support machine so that a person’s suffering is ended. The most loving thing to do allows the families of patients to say goodbye allows for patient’s to assess future possible situations themselves through living wills. Situation ethics follows the propositions of pragmatism, personalism, positivism and relativism. Each one important to the issue of euthanasia. Pragmatism allows a practical approach to euthanasia and where practicality of a situation is focused on. Personalism puts people above laws so full agape can be achieved. Although a partly legalistic theory situation ethics is also antinomian where people should be making their own decisions above the law. Positivism allows the practice of euthanasia because in most cases a positive effect is being produced. Relativism is most important because it allows the situation to be weighed on a case by case basis (natural law is unable to do this as it is absolute). These propositions provide more clarification on euthanasia and allow the issue of euthanasia to be clarified.

Natural law is not absolute in terms of its secondary precepts. The name Fletcher gives to his four principles is ‘working principles’ not ‘propositions’.

Another supporting factor for euthanasia is the six principles which seek to fulfil agape. For example, the third principle that justice is love seemed upholds the value of love distributed. The other fundamental principles also seem to clarify how love is best served and how agape is applied in different situations. In the real case of Simon’s choice, a man was diagnosed with motor neurone disease and in months ahead lost control of his bodily functions and was dependent on support. Simon made the choice to go to Switzerland to die. Natural law would not have permitted this as it breaks the precept of the sanctity of life however situation ethics would allow Simon’s choice to die based on his quality of life. The shows the more practical and reasonable approach of situation ethics is more useful.

However, situation ethics can be criticised. By describing it as relativism, euthanasia is judged on a case by case basis, which can lead to dangerous precedents. If someone is allowed to be euthanased because they are blind, it could influence other people. With sensory issues to seek euthanasia. Even if they have a decent quality of life. Euthanasia can thereby lead to a slippery slope, where euthanasia becomes too common. This raises the question of where to draw the line with euthanasia, and situation ethics provides no guidance on this. Also doctors swear by the Hippocratic Oath, to uphold the life of the patient. Situation ethics dismisses this – instead going against the doctor’s primary role. A judgement is made about the future: in some cases a patient may get better. Overall however, these weaknesses don’t create a strong enough basis for dismissing situation ethics.

On balance, therefore natural law is of no help in regard to the issue of euthanasia and instead situation ethics should be adopted. Situation ethics is stronger as it takes a teleological approach seeking to uphold the quality of life – this secures someone’s autonomy and secular views which are being adopted by western societies – such as Switzerland. Natural law is also absolute and deontological, upholding the sanctity of life which seems outdated. The precepts are also incomplete with modern society Fletcher’s four working principles are much more practical and relevant. Overall therefore natural law is of no help with regard t the issue of euthanasia and instead situation ethics should be adopted.

40/40 Grade A*

What is excellent about this essay (and often not achieved by candidates) is the precise focus on the question set. The very clear thesis is referred to again and again, elaborated and clarified. The justification for the case is complete. You can reconstruct the question from the answer itself. However, the answer is rather long and a bit repetitive. If you can develop your won slightly tighter style, it allows you to add even more excellent analysis. One glaring omission in this answer is the failure to develop and discuss the idea that natural law is a theory of human reason, which is mentioned in the opening paragraph. There are two concepts Aquinas introduces to confirm this: synderesis (the intuitive knowledge of first principles – the primary precepts) and phronesis (the practical wisdom we develop to judge secondary precepts rightly and make nuanced judgements about the application of double effect). Being critical, I also feel there are a number of misunderstandings here – about real and apparent goods, for example and the persistent claim that natural law is absolute and contains hard rules like Kantian ethics. Aquinas never argues for a hard form of deontology. Human beings are designed by God to use our reason to face hard choices and take responsibility for them.

My conclusion: to gain full marks you don’t have to have knowledge that’s 100% accurate, but you do need a strong argument, a clear thesis and a comprehensive analysis and evaluation that justifies your thesis. Candidates are often preparing for this exam in the wrong way – just by learning material rather than practising their analytical writing skills.

Peter Baron October 2018

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OCR A level Religious Studies - Natural Moral Law Essay Plan

Subject: Philosophy and ethics

Age range: 16+

Resource type: Assessment and revision

Last updated

4 December 2019

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This is a comprehensive, critical essay plan on natural law ethics, covering many aspects of Aquinas’ explanation, along with evaluative pointers and critics to add weight to your argument. The detail in this plan provides a variety of approaches that can be taken when writing an essay regarding natural law ethics. This essay is applicable to a general question on Aquinas’ ethics as a helpful method as well as being able to be tailored to an essay focusing specifically on telos. The content in this document, if correct links are made, can be used to answer many essay Qs in the following topics, accessing level 5/6 bands for AO1 and AO2 when writing essays. These essays contain very nice broad introductions (AO1), that can be applied to any NML essay and conclusion (AO2), needing to be tailored to specific Q.

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Reevaluating Legal Theory

abstract . Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology as well as a response to the long-standing objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the nature of law that identifies law’s essential features, takes the views of its participants seriously, and prescinds from moral judgment. Twenty years on, the debate on this question persists and, despite increasing insight and sophistication, some wonder whether we have reached a dead end.

To understand this dispute, and general jurisprudence’s methodological cul-de-sac, we need to broaden the range of questions and tools we bring to those arguments. To this end, this Review offers a mixture of the old and the new—demonstrating the usefulness of its approach by exploring the promise and limits of Dickson’s work. In terms of the old, it argues that moralized approaches to general jurisprudence, especially the classical natural-law tradition of legal theorizing, can better deliver on positivism’s promise to offer theories of law that are both general and take seriously the point of view of participants. In terms of the new, it seeks to ground this approach in a broader philosophy of social science that avoids both reductive naturalism and relativistic particularity in its explanations. Law is intertwined with morality, but it is also a social fact: a practice and institution. Any general theory of jurisprudence, like any general theory of human practices and institutions, must reckon with the relationship between law’s moral life and its factual existence. This Review begins the work of developing and rendering explicit such a social theory for a jurisprudence that takes both dimensions seriously.

author. Professor of Law, Notre Dame Law School. For comments, criticisms, questions, and guidance, I am grateful to Brian Bix, Bruce Huber, Margaret Martin, Paul Miller, Sarah Pojanowski, Dan Priel, Christian Smith, and Grégoire Webber. The usual caveats apply.

Introduction

Must a successful theory about what law “is” also make value judgments about what it “ought” to be? This question about the relationship between value judgments and the nature of law has long been a central point of contention in legal philosophy. In Anglo-American jurisprudence, Thomas Hobbes 1 and David Hume 2 planted the seeds for the contemporary debate, which began to flower in earnest with Jeremy Bentham’s rejection of the classical natural-law tradition. Bentham distinguished between “ expositorial jurisprudence,” which explains what a legal system is, and “censorial jurisprudence,” which seeks to reform any particular system the theorist has identified. 3 His intellectual disciple John Austin pithily summarized this position when he intoned that the “existence of law is one thing; its merit or demerit is another.” 4

From the mid-twentieth century onward, a coterie of Oxford scholars took up the torch. H.L.A. Hart, while departing from Austin in crucial ways, also insisted that the key to understanding a legal system—the so-called “rule of recognition”—can be identified without undertaking any kind of moral assessment. 5 Hart’s students would carry on this debate as they became his colleagues at Oxford. Joseph Raz, in developing his theory of legal positivism, contended that the governing set of legal norms is “fully determined by social sources,” not by their moral content. 6 If identifying a legal system and its norms is a matter of finding social facts about the world and excludes appeals to moral worth or purposes, the line between describing and evaluating law appears sharp indeed. 7

Oxonian critics of positivism challenged this theoretical separation. John Finnis, another former student of Hart, dedicated the first chapter of his seminal book on natural law to challenging his mentor’s methodological neutrality. 8 A theorist, according to Finnis, must have some “principle of selection” to make sense of the welter of phenomena out in the world that go by the appellation “law.” 9 For theorizing about purposive human institutions like law, the principle must focus on how a practically reasonable person understands law’s point. 10 And because identifying that person’s point of view is a task of moral and political philosophy, the line between jurisprudence and more general normative inquiry cannot run all the way up the theoretical ladder. Ronald Dworkin, one of Finnis’s colleagues at Oxford, also contended that legal positivism was wrong to draw a sharp line between description and evaluation in legal theory. Such a move fails, he argued, because legal actors have deep disagreements about what counts as the “grounds of law” in legal disputes—disputes we cannot resolve just by pointing at brute facts about practice. 11 Identifying “the law,” in Dworkin’s view, requires an interpretive argument that reads the preexisting legal materials in their best moral light. 12

This was roughly the state of play when Julie Dickson’s book Evaluation and Legal Theory came on the scene in 2001. 13 Dickson, herself a former student of Raz, sought to defend legal positivism’s separation of law and morality against Finnis’s slings and Dworkin’s arrows. In objecting to purportedly morally neutral descriptions of legal systems, scholars like Finnis contended that “jurisprudence, like other social sciences, aspires to be more than a conjunction of lexicography with local history, or even . . . a juxtaposition of all lexicographies conjoined with all local histories.” 14 Moral evaluation of the purpose was therefore necessary to transcend descriptive reportage. To avoid the implication that positivism is vulnerable to that objection, Dickson sought to offer an account that incorporates evaluations about significance and importance without placing moral judgment at the cornerstone of the edifice.

Like a good positivist, she rejected directly evaluative legal theories, namely approaches that ( i ) include moral evaluations of legal institutions and norms; (ii) view law as a morally justified enterprise; or (iii) consider the moral consequences of any given legal theory. 15 Developing hints of argument in Hart’s and Raz’s work, however, Dickson introduced an alternative framework she labels “indirectly evaluative legal theory.” 16 Under this approach, a theorist identifies what is “significant” and “important” to the participants in the legal system. Doing so requires evaluation—sorting out the trivial and the marginal from the participants’ point of view—but not moral assessment. What is important and significant about law could in principle be morally bad and still be constitutive of our concept of law, and we can identify such importance and significance before attaching such a label. Or so Dickson argued.

By elaborating her theory of indirect evaluation, she sought to redraw the dividing line between positivism and its critics: it was not the difference between description and evaluation, but rather what kind of evaluation is proper to legal theory. Such arguments about theory construction, moreover, emphasized the connections between jurisprudence and more general social philosophy. With Hart describing The Concept of Law as an “essay in descriptive sociology” 17 and critics of the Oxford positivist consensus drawing on the likes of Eric Voegelin , Max Weber, and Peter Winch 18 in reply, the need for legal philosophers to delve deeper into general social theory became clear. 19 Dickson’s book, and her elaboration of indirectly evaluative legal theory in subsequent work, sought to offer a more sophisticated defense of the kind of morally neutral social explanation that her school of legal positivism requires. 20

Evaluation and Legal Theory attracted significant critical notice at its publication. 21 Further, jurisprudents interested in the philosophy of social science have joined the debate, though often to criticize positions like Dickson’s and Hart’s. 22 Dickson’s work is a worthy starting point because she has articulated and defended the methodological premises of regnant legal positivism with great clarity, energy, and insight. This Review takes stock of the current state of argument and hopes to enrich it by bringing in new perspectives in social theory.

Jurisprudence students and scholars may wonder why it matters where we draw the line between legal philosophy, on the one hand, and moral and political philosophy on the other. At first glance, it seems a trivial labeling dispute: legal positivists like Dickson plainly care about the moral and political dimensions of human affairs and their relationship to law. Why care whether those normative considerations are included in our theorization about the nature of law? 23 One might wonder if this is at all an interesting endeavor. 24 Little surprise, then, that some argue we are not even asking the right questions in general jurisprudence, and that legal systems and norms are, in fact, not interestingly distinctive from other normative systems that have moral and prudential “upshots.” 25 This Review’s conclusion will suggest that many philosophers still care—and get so heated about these questions—because those competing views of the dividing line between jurisprudence and normative philosophy intertwine with competing visions of what is good for persons, which themselves intertwine with competing ways of thinking about society. The lines we draw here suggest a broader picture of our moral and even metaphysical commitments.

To understand this dispute, and the methodological cul-de-sac we have spent the past few decades circling around, we need to broaden the range of questions and tools we bring to those arguments. To this end, this Review offers a mixture of the old and the new—demonstrating the usefulness of its approach by exploring the promise and limits of Dickson’s work. In terms of the old, it argues that moralized approaches to general jurisprudence, especially the classical natural-law tradition of legal theorizing, can better deliver on positivism’s promise to offer theories of law that are both general and take seriously the point of view of participants. In terms of the new, it seeks to ground this approach in a broader philosophy of social science that avoids both reductive naturalism and relativistic particularity in its explanations. Law is intertwined with morality, but it is also a social fact: a practice and institution. Any general theory of jurisprudence, like any general theory of human practices and institutions, must reckon with the relationship between law’s moral life and its factual existence. This Review begins the work of developing and rendering explicit such a social theory for a jurisprudence that takes both dimensions seriously.

Part I of this Review describes Dickson’s indirectly evaluative legal theory and her argument about what general jurisprudential method should look like. Part II criticizes this framework. It amplifies the work of other jurisprudence scholars and draws on more general philosophy of social science to argue that a legal theory about the nature of law cannot at the same time (a) pick out essential features, (b) based on the understanding of the participants, (c) while remaining morally neutral about the practice. Approaches like Dickson’s seek to do all three, combining interpretive and naturalistic understandings of social theory that do not cohere.

Part III argues for a teleological approach to general jurisprudence that picks out essential features, draws on the understandings of the participants, but eschews moral neutrality. Such theories are old hat, of course, but this Review seeks to place a few new feathers in the band. It seeks to ground this approach by looking to social-science theories that reject both reductive forms of naturalism and particularistic and relativistic forms of hermeneutical explanation. Theories like Dickson’s wisely seek to avoid both vices, but this Review argues that reckoning plainly with the evaluation inherent in jurisprudential method offers the most promising way to escape those twin snares.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program.

Thomas Hobbes argued that it “is not Wisdom, but Authority that makes a Law,” and for that reason, law consists of the sovereign’s commands and prohibitions, not reason. Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England 55 (Joseph Cropsey ed., 1971) (1681); id. at 69 (identifying law with commands and prohibitions).

David Hume famously distinguished between “is” and “ought” and argued that one cannot derive the latter from the former. See 1 David Hume, A Treatise of Human Nature bk. 3, at 302 (David Fate Norton & Mary J. Norton eds., 2007) (1740).

On Jeremy Bentham’s distinction, see Julie Dickson, Evaluation and Legal Theory 4-5 (2001).

John Austin, The Province of Jurisprudence Determined 157 (Wilfrid E. Rumble ed., 1995) (1832).

H.L.A. Hart, The Concept of Law 107 (3d ed. 2012); see id. at 107-10.

Joseph Raz, Legal Positivism and the Sources of Law , in The Authority of Law: Essays on Law and Morality 37 , 46 (1979).

In this respect, Joseph Raz draws a sharper conceptual distinction between law and morality than H.L.A. Hart. See Hart, supra note 5, at 250 (noting that the rule of recognition “may incorporate as criteria of validity conformity with moral principles”).

See John Finnis, Natural Law and Natural Rights 3 (2d ed. 2011) (“[N]o theorist can give a theoretical description and analysis of social facts without also participating in the work of evaluation, of understanding what is really good for human persons, and what is really required by practical reasonableness.”).

Ronald Dworkin, Law’s Empire 3-6 (1986).

See id. at 52-53.

See Dickson, supra note 3.

Finnis, supra note 8, at 4.

Dickson, supra note 3, at 9-10.

Hart, supra note 5, at vi.

Finnis, supra note 8, at 19 (citing Weber and Voegelin ); H. Hamner Hill, H.L.A. Hart’s Hermeneutic Positivism: On Some Methodological Difficulties in The Concept of Law, 3 Can. J.L. & Juris. 113, 114 (1990) (invoking Winch).

Cf. Brian Bix, H.L.A. Hart and the Hermeneutic Turn in Legal Theory , 52 SMU L. Rev . 167, 199 (1999) (“Legal theorists would do well to pay attention to what is going on elsewhere in social theorists—and other social theorists, likewise, would do well to see what is being proposed and debated in the jurisprudence literature.”).

Julie Dickson, Methodology in Jurisprudence: A Critical Survey , 10 Legal Theory 117, 125-29 (2004) [hereinafter Dickson, Methodology in Jurisprudence ]; Julie Dickson, Ours Is a Broad Church: Indirectly Evaluative Legal Philosophy as a Facet of Jurisprudential Inquiry , 6 Juris . 207, 220-30 (2015) [hereinafter Dickson, Ours Is a Broad Church ]. Dickson will further elaborate on her theory in a forthcoming monograph, tentatively entitled Elucidating Law , which she hopes to release in 2021. See Julie Dickson: Professor of Legal Philosophy , U. Oxford Fac. L., https://www.law.ox.ac.uk/people/julie-dickson [https://perma.cc/98UA-G4BX].

See, e.g. , Brian H. Bix, Book Review, 28 Austl. J. Legal Phil. 231, 231 (2003); Matthew H. Kramer, Book Review, 62 Cambridge L.J. 210, 210 (2003); Mark McBride, Book Review, 66 Mod. L. Rev. 661, 661 (2003); Dan Priel , Description and Evaluation in Jurisprudence , 29 Law & Phil. 633, 635-36 (2010); Frederick Schauer, The Social Construction of the Concept of Law: A Reply to Julie Dickson , 25 Oxford J. Legal Stud. 493, 493 (2005).

See, e.g. , Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence , 48 Am. J. Juris. 17, 40-43 (2003) (arguing that Dickson’s indirectly evaluative theory is not evaluative at all, but rather reflects more descriptive epistemic values); Stephen R. Perry, Hart’s Methodological Positivism , in Hart’s Postscript: Essays on the Postscript to the Concept of Law 311, 312-13 (Jules Coleman ed., 2001) (arguing that conceptual analysis, which is distinct from science, is inconsistent with methodological positivism). For an excellent exploration of the relationship between jurisprudence and the sciences, see Dan Priel , Jurisprudence Between Science and the Humanities , 4 Wash. U. Juris. Rev. 269 passim (2012).

For present purposes, this Review does not draw a sharp terminological distinction between a theory of the “nature of law” and a “concept of law.” Joseph Raz, by contrast, distinguishes between our concepts about something and that thing’s nature. See Joseph Raz , Can There Be a Theory of Law? , in Between Authority and Interpretation 17, 19 (2009) (“Concepts are how we conceive aspects of the world, and lie between words and their meanings . . . on the one side, and the nature of the things to which they apply, on the other.”). I am using “concept” in the broader sense as referring to our understanding of the thing’s nature.

See David Enoch, Is General Jurisprudence Interesting? , in Dimensions of Normativity: New Essays on Metaethics and Jurisprudence 65, 65 (David Plunkett, Scott J. Shapiro & Kevin Toh eds., 2019) (“[W] hen it comes to general jurisprudence—questions about the nature of law, the necessary and sufficient conditions of legal validity in general . . . obviously the wars over legal positivism, and so on—I always get the feeling that if there is a point, I’m missing it.”).

See, e.g. , Scott Hershovitz , The End of Jurisprudence , 124 Yale L.J. 1160, 1173 (2015) (“There is a way out of the debate, and indeed, the way out is as simple as the way in: to escape the debate, we could simply abandon the thought that starts it up. That is, we could abandon the thought that, in addition to their moral and prudential upshots, legal practices have distinctively legal upshots.”).

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MIA > Archive > Pashukanis

Evgeny Pashukanis

Marksistskaia teoriia gosudarstva i prava , pp.9-44 in E. B. Pashukanis (ed.), Uchenie o gosudarstve i prave (1932), Partiinoe Izd., Moscow. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.273-301. Translated by Peter B. Maggs . Copyright © Peter B. Maggs. Published here by kind permission of the translator. Downloaded from home.law.uiuc.edu/~pmaggs/pashukanis.htm Marked up by Einde O’Callaghan for the Marxists’ Internet Archive .

Introductory Note

In the winter of 1929-1930, during the first Five Year Plan, the national economy of the USSR underwent dramatic and violent ruptures with the inauguration of forced collectivization and rapid heavy industrialization. Concomitantly, it seemed, the Party insisted on the reconstruction and realignment of the appropriate superstructures in conformity with the effectuation of these new social relations of production. In this spirit Pashukanis was no longer criticized but now overtly attacked in the struggle on the “legal front”. In common with important figures in other intellectual disciplines, such as history, in late 1930 Pashukanis undertook a major self-criticism which was qualitatively different from the incremental changes to his work that he had produced earlier. During the following year, 1931, Pashukanis outlined this theoretical reconstruction in his speech to the first conference of Marxist jurists, a speech entitled Towards a Marxist-Leninist Theory of Law . The first results appeared a year later in a collective volume The Doctrine of State and Law .

Chapter I of this collective work is translated below, The Marxist Theory of State and Law , and was written by Pashukanis himself It should be noted that this volume exemplifies the formal transformations which occurred in Soviet legal scholarship during this heated period. Earlier, Pashukanis and other jurists had authored their own monographs; the trend was now towards a collective scholarship which promised to maximize individual safety. The source of authority for much of the work that ensued increasingly became the many expressions of Stalin’s interpretation of Bolshevik history, class struggle and revisionism, most notably his Problems of Leninism . Last, but not least, the language and vocabulary of academic discourse in the 1920s had been rich, open-ended and diverse, and varied tremendously with the personal preferences of the individual author; this gave way to a standardized and simplified style of prose devoid of nuance and ambiguity, and which was very much in keeping with the new theoretical content which comprised official textbooks on the theory of state and law. The reader will perhaps discover that The Marxist Theory of State and Law is a text imbued with these tensions. Pashukanis’ radical reconceptualization of the unity of form and content, and of the ultimate primacy of the relations of production, is without doubt to be preferred to his previous notions. But this is a preference guided by the advantages of editorial hindsight, and we feel that we cannot now distinguish between those reconceptualizations which Pashukanis may actually have intended and those which were produced by the external pressures of political opportunism.

CHAPTER I Socio-economic Formations, State, and Law

1. the doctrine of socio-economic formations as a basis for the marxist theory of state and law.

The doctrine of state and law is part of a broader whole, namely, the complex of sciences which study human society. The development of these sciences is in turn determined by the history of society itself, i.e. by the history of class struggle.

It has long since been noted that the most powerful and fruitful catalysts which foster the study of social phenomena are connected with revolutions. The English Revolution of the seventeenth century gave birth to the basic directions of bourgeois social thought, and forcibly advanced the scientific, i.e. materialist, understanding of social phenomena.

It suffices to mention such a work as Oceana – by the English writer Harrington, and which appeared soon after the English Revolution of the seventeenth century – in which changes in political structure are related to the changing distribution of landed property. It suffices to mention the work of Barnave – one of the architects of the great French Revolution – who in the same way sought explanations of political struggle and the political order in property relations. In studying bourgeois revolutions, French restorationist historians – Guizot, Mineaux and Thierry – concluded that the leitmotif of these revolutions was the class struggle between the third estate (i.e. the bourgeoisie) and the privileged estates of feudalism and their monarch. This is why Marx, in his well-known letter to Weydemeyer, indicates that the theory of the class struggle was known before him. “As far as I am concerned”, he wrote,

no credit is due to me for discovering the existence of classes in modern society, or the struggle between them. Long before me bourgeois historians had described the historical development of this class struggle, and bourgeois economists the economic anatomy of the classes.

What I did that was new was to prove: (1) that the existence of classes is only bound up with particular historical forms of struggle in the development of production ...; (2) that the class struggle inevitably leads to the dictatorship of the proletariat; (3) that this dictatorship itself only constitutes the transition to the abolition of all classes and the establishment of a classless society. [1]

[ Section 2 omitted – eds. ]

Top of the page

3. The class type of state and the form of government

The doctrine of socio-economic formations is particularly important to Marx’s theory of state and law, because it provides the basis for the precise and scientific delineation of the different types of state and the different systems of law.

Bourgeois political and juridical theorists attempt to establish a classification of political and legal forms without scientific criteria; not from the class essence of the forms, but from more or less external characteristics. Bourgeois theorists of the state, assiduously avoiding the question of the class nature of the state, propose every type of artificial and scholastic definition and conceptual distinction. For instance, in the past, textbooks on the state divided the state into three “elements”: territory, population and power.

Some scholars go further. Kellen – one of the most recent Swedish theorists of the state – distinguishes five elements or phenomena of the state: territory, people, economy, society and, finally, the state as the formal legal subject of power. All these definitions and distinctions of elements, or aspects of the state, are no more than a scholastic game of empty concepts since the main point is absent: the division of society into classes, and class domination. Of course, the state cannot exist without population, or territory, or economy, or society. This is an incontrovertible truth. But, at the same time, it is true that all these “elements” existed at that stage of development when there was no state. Equally, classless communist society – having territory, population and an economy – will do without the state since the necessity of class suppression will disappear.

The feature of power, or coercive power, also tells one exactly nothing. Lenin, in his polemic of the 1890s with Struve asserted that: “he most incorrectly sees the distinguishing feature of the state as coercive power. Coercive power exists in every human society – both in the tribal structure and in the family, but there was no state.” And further, Lenin concludes: “The distinguishing feature of the state is the existence of a separate class of people in whose hands power is concentrated. Obviously, no one could use the term ‘State’ in reference to a community in which the ‘organization of order’ is administered in turn by all of its members.” [2]

Struve’s position, according to which the distinguishing feature of a state is coercive power, was not without reason termed “professorial” by Lenin. Every bourgeois science of the state is full of conclusions on the essence of this coercive power. Disguising the class character of the state, bourgeois scholars interpret this coercion in a purely psychological sense. “For power and subordination”, wrote one of the Russian bourgeois jurists (Lazarevsky), “two elements are necessary: the consciousness of those exercising power that they have the right to obedience, and the consciousness of the subordinates that they must obey.”

From this, Lazarevsky and other bourgeois jurists reached the following conclusion: state power is based upon the general conviction of citizens that a specific state has the right to issue its decrees and laws. Thus, the real fact-concentration of the means of force and coercion in the hands of a particular class-is concealed and masked by the ideology of the bourgeoisie. While the feudal landowning state sanctified its power by the authority of religion, the bourgeoisie uses the fetishes of statute and law. In connection with this, we also find the theory of bourgeois jurists-which now has been adopted in its entirety by the Social Democrats whereby the state is viewed as an agency acting in the interests of the whole society. “If the source of state power derives from class”, wrote another of the bourgeois jurists (Magaziner), “then to fulfil its tasks it must stand above the class struggle. Formally, it is the arbiter of the class struggle, and even more than that: it develops the rules of this struggle.”

It is precisely this false theory of the supra-class nature of the state that is used for the justification of the treacherous policy of the Social Democrats. In the name “of the general interest”, Social Democrats deprive the unemployed of their welfare payments, help in reducing wages, and encourage shooting at workers’ demonstrations.

Not wishing to recognize the basic fact, i.e. that states differ according to their class basis, bourgeois theorists of the state concentrate all their attention on various forms of government. But this difference by itself is worthless. Thus, for instance, in ancient Greece and ancient Rome we have the most varied forms of government. But all the transitions from monarchy to republic, from aristocracy to democracy, which we observe there, do not destroy the basic fact that these states, regardless of their different forms, were slave-owning states. The apparatus of coercion, however it was organized, belong to the slave-owners and assured their mastery over the slaves with the help of armed force, assured the right of the slave-owners to dispose of the labour and personality of the slaves, to exploit them, to commit any desired act of violence against them.

Distinguishing between the form of rule and the class essence of the state is particularly important for the correct strategy of the working class in its struggle with capitalism. Proceeding from this distinction, we establish that to the extent that private property and the power of capital remain untouchable, to this extent the democratic form of government does not change the essence of the matter. Democracy with the preservation of capitalist exploitation will always be democracy for the minority, democracy for the propertied; it will always mean the exploitation and subjugation of the great mass of the working people. Therefore theorists of the Second International such as Kautsky, who contrast “democracy” in general with “dictatorship”, entirely refuse to consider their class nature. They replace Marxism with vulgar legal dogmatism, and act as the scholarly champions and lackeys of capitalism.

The different forms of rule had already arisen in slave-owning society. Basically, they consist of the following types: the monarchic state with an hereditary head, and the republic where power is elective and where there are no offices which pass by inheritance. In addition, aristocracy, or the power of a minority (i.e. a state where participation in the administration of the state is limited by law to a definite and rather narrow circle of privileged persons) is distinguished from democracy (or, literally, the rule of the people), i.e. a state where by law all take part in deciding public affairs either directly or through elected representatives. The distinction between monarchy, aristocracy and democracy had already been established by the Greek philosopher Aristotle in the fourth century. All the modern bourgeois theories of the state could add little to this classification.

Actually the significance of one form or another can be gleaned only by taking into account the concrete historical conditions under which it arose and existed, and only in the context of the class nature of a specific state. Attempts to establish any general abstract laws of the movement of state forms – with which bourgeois theorists of the state have often been occupied – have nothing in common with science.

In particular, the change of the form of government depends on concrete historical conditions, on the condition of the class struggle, and on how relationships are formed between the ruling class and the subordinate class, and also within the ruling class itself

The forms of government may change although the class nature of the state remains the same. France, in the course of the nineteenth century, and after the revolution of 1830 until the present time, was a constitutional monarchy, an empire and a republic, and the rule of the bourgeois capitalist state was maintained in all three of these forms. Conversely, the same form of government (for instance a democratic republic) which was encountered in antiquity as one of the variations of the slave-owning state, is in our time one of the forms of capitalist domination.

Therefore, in studying any state, it is very important primarily to examine not its external form but its internal class content, placing the concrete historical conditions of the class struggle at the very basis of scrutiny.

The question of the relationship between the class type of the state and the form of government is still very little developed. In the bourgeois theory of the state this question not only could not be developed, but could not even be correctly posed, because bourgeois science always tries to disguise the class nature of all states, and in particular the class nature of the capitalist state. Often therefore, bourgeois theorists of the state, without analysis, conflate characteristics relating to the form of government and characteristics relating to the class nature of the state.

As an example one may adduce the classification which is proposed in one of the newest German encyclopaedias of legal science.

The author [Kellreiter] distinguishes: (a) absolutism and dictatorship, and considers that the basic characteristic of these forms is that state powers are concentrated in the hands of one person. As an example, he mentions the absolute monarchy of Louis XIV in France, tsarist autocracy in Russia and the dictatorial power which was invested by the procedure of extraordinary powers in the one person, for instance the president of the German Republic on the basis of Art.48 of the Weimar Constitution; (b) constitutionalism, characterized by the separation of powers, their independence and their checks and balances, thereby weakening the pressure exerted by state power on the individual (examples: the German Constitution before the 1918 revolution, and the USA, where the President and Congress have independent powers); (c) democracy, whose basic premise is monism of power and a denial in principle of the difference between power and the subject of power (popular sovereignty, exemplified by the German Republic); and (d) the class-corporative state and the Soviet system where as opposed to formal democracy, the people appear not as an atomized mass of isolated citizens but as a totality of organized and discrete collectives. [3]

This classification is very typical of the confusion which bourgeois scholars consciously introduce into the question of the state. Starting with the fact that the concept of dictatorship is interpreted in the formal legal sense, deprived of all class content, the bourgeois jurist deliberately avoids the question: the dictatorship of which class and directed against whom ? He blurs the distinction between the dictatorship of a small group of exploiters and the dictatorship of the overwhelming majority of the working people; he distorts the concept of dictatorship, for he cannot avoid defining it without a relevant law or paragraph, while “the scientific concept of dictatorship means nothing less than power resting directly upon force, unlimited by laws, and unconstricted by absolute rules”. [4] Further it is sufficient to indicate, for instance, that under the latter heading the author includes: (a) a new type of state, never encountered before in history, where power belongs to the proletariat; (b) the reactionary dreams of certain professors and so-called guild socialists, about the return to the corporations and shops of the Middle Ages; and, finally (c) the fascist dictatorship of capital which Mussolini exercises in Italy.

This respected scholar consciously introduces confusion, consciously ignores the concrete historical conditions under which the working people actually can exercise administration of the state, acting as organized collectives. But such conditions are only the proletarian revolution and the establishment of the dictatorship of the proletariat.

4. The class nature of law

Bourgeois science confuses the question of the essence of law no less than the question of the state. Here, Marxism-Leninism opposes the diverse majority of bourgeois, petit bourgeois and revisionist theories which, proceeding from the explanation of the historical and class nature of law, consider the state as a phenomenon essential to every human society. They thus transform law into a supra-historical category.

It is not surprising, therefore, that bourgeois philosophy of law serves as the main source for introducing confusion both into the concept of law and into the concept of state and society.

The bourgeois theory of the state is 90% the legal theory of the state. The unattractive class essence of the state, most often and most eagerly, is hidden by clever combinations of legal formalism, or else it is covered by a cloud of lofty philosophical legal abstractions.

The exposure of the class historical essence of law is not, therefore, an unimportant part of the Marxist-Leninist theory of society, of the state and of law.

The most widespread approach of bourgeois science to the solution of the question of the essence of law consists in the fact that it strives to embrace, through the concept of law, the existence of any consciously ordered human relationships, of any social rules, of any phenomenon of social authority or social power. Thus, bourgeois scholars easily transfer law to pre-class society, find it in the pre-state life of primitive tribes, and conclude that communism is unthinkable without law. They turn law as an empty abstraction into a universal concept devoid of historical content. Law, for bourgeois sociologists, becomes an empty form which is unconnected with concrete reality, with the relationships of production, with the antagonistic character of these relationships in class society, [and] with the presence of the state as a particular apparatus of power in the hands of the ruling class.

Representatives of idealist philosophy of law go still further. They begin with “the idea of law”, which stands above social history as something eternal, immutable and independent of space and time.

Here, for example, is the conclusion of one of the most important representatives of the ideological neo-Kantian philosophy of law – Stammler:

Through all the fates and deeds of man there extends a single unitary idea, the idea of law. All languages have a designation for this concept, and the direction of definitions and judgements expressed by it amount, upon careful study, to one and the same meaning.

Having made this discovery, it cost Stammler nothing “to prove” that regardless of the difference between the “life and activity of nations” and “the objects of legal consideration”, we observe the unity of the legal idea and its equal appearance and intervention.

This professorial rubbish is presented without the least attempt at factual proof In actuality it would be rather difficult to explain how this “unity of the legal idea and its equal appearance” gave birth to the laws of the Twelve Tablets of slave-owning Rome, the serf customs of the Middle Ages, the declarations of rights of capitalist democracies, and our Soviet Constitution.

But Stammler is not embarrassed by the scantiness of factual argument. He deals just as simply with the proof of the eternity of law. He begins from those legendary Cyclops described in the Odyssey; even these mythical wonders were the fathers of families and, according to Stammler, could not do without law. On the other hand, however, while Stammler is ready to admit that the pigmy tribes of Africa and the Eskimos did not know the state, he simply denies as deceptive all reports about peoples not knowing law. Moreover, Stammler immediately replaces the concrete historical consideration of the question with scholastic formal-logical tightrope walking, which among bourgeois professors is presented as a methodological precision. We present these conclusions, for they typify the whole trend and, moreover, are most fashionable in the West.

Stammler proposes that the concrete study of legal phenomena is entirely unable to provide anything in the understanding of the essence of law. For if we assign any phenomenon to the list of legal ones, this means that we already know that this is law and what its characteristics are. The definition of law which precedes the facts presupposes knowledge of what is law and what is not law. Accordingly, in the opinion of Stammler, in considering the concept of law, it is necessary to exclude all that is concrete and encountered in experience and to understand “that the legal idea is a purely methodological means for the ordering of spiritual life”.

This conclusion, which confronts one with its scholasticism, is nothing other than a Kantian ideological thesis embodied in the context of Stammler’s legal stupidity. It shows that the so-called forms of knowledge do not express the objective characteristics of matter, are determined a priori, and precede all human experience and its necessary conditions.

Having turned law into a methodological idea, Stammler tries to locate it not in the material world where everything is subordinate to the law of cause and effect, but in the area of goals. Law, according to Stammler, is a definition which proceeds not from the past (from cause to effect), but from the future (from goal to means). Finally, adding that law deals not with the internal procedure of thoughts as such, but with human interaction, Stammler gives this agonizing and thoroughly scholastic definition:

The concept of law is a pure form of thought. It methodically divides the endlessly differentiated material of human desires apprehended by the senses, and defines it as an inviolable and independent connecting will.

This professorial scholasticism has the attractive feature for the bourgeoisie that verbal and formalistic contrivances can hide the ugly reality of [their] exploiting society and exploiting law.

If law is “a pure form of thought”, then it is possible to avoid the ugly fact that the capitalist law of private property means the misery of unemployment, poverty and hunger for the proletarian and his family; and that in defence of this law stand police armed to the teeth, fascist bands, hangmen and prison guards; and that this law signifies a whole system of coercion, humiliation and oppression in colonies.

Such theories allow the disguising of the fact that the class interest of the bourgeoisie lies at the basis of bourgeois law. Instead of class law, philosophers such as Stammler dream up abstractions, “pure forms”, general human “ideas”, “whole and durable bonds of will” – and other entirely shameless things.

This philosophy of law is calculated to blunt the revolutionary class consciousness of the proletariat, and to reconcile it with bourgeois society and capitalist exploitation.

It is not without reason that the social fascists speak out as such zealous exponents of neo-Kantianism; it is not without reason that Social Democratic theorists on questions of law largely subscribe to neo-Kantian philosophy and re-hash the same Stammler in different ways.

In our Soviet legal literature, a rather wide dissemination has been achieved by bourgeois legal theories. In particular, there have been attempts to spread the idealist teaching of Stammler in the works of Pontovich and Popov-Ladyzhensky. The criticism and unmasking of this eructation is necessary for the purpose of eradicating this bourgeois ideological infection.

Thus, we know that the state is an historical phenomenon limited by the boundaries of class society. A state is a machine for the maintenance of the domination of one class over another. It is an organization of the ruling class, having at its disposal the most powerful means of suppression and coercion. Until the appearance of classes the state did not exist. In developed communism there will be no state.

In the same way as the state, law is inseparably tied to the division of society into classes. Every law is the law of the ruling class. The basis of law is the formulation and consolidation of the relationship to the means of production, owing to which in exploitative society, one part of the people can appropriate to itself the unpaid labour of another.

The form of exploitation determines the typical features of a legal system. In accordance with the three basic socio-economic formations of class society, we have three basic types of legal superstructure: slave-owning law, feudal law and bourgeois law. This of course does not exclude concrete historical national differences between each of the systems. For instance, English law is distinguished by many peculiarities in comparison with French bourgeois law as contained in the Napoleonic Code . Likewise, we do not exclude the presence of survivals of the past – transitional or mixed forms – which complicate the concrete picture.

However, the essential and basic – that which provides the guiding theme for the study of different legal institutions – is the difference between the position of the slave, the position of the serf and the position of the wage labourer. The relationship of exploitation is the basic lynchpin, around which all other legal relationships and legal institutions are arranged. From this it follows that the nature of property has decisive significance for each system of law. According to Lenge, the brilliant and cynical reactionary of the eighteenth century, the spirit of the laws is property.

5. Law as an historical phenomenon: definition of law

The appearance and withering away of law, similar to the appearance and withering of the state, is connected with two extremely important historical limitations. Law (and the state) appears with the division of society into classes. Passing through a long path of development, full of revolutionary leaps and qualitative changes, law and the state will wither away under communism as a result of the disappearance of classes and of all survivals of class society.

Nevertheless, certain authors, who consider themselves Marxists, adopt the viewpoint that law exists in pre-class society, that in primitive communism we meet with legal forms and legal relationships. Such a point of view is adopted for instance by Reisner. Reisner gives the term “law” to a whole series of institutions and customs of tribal society: marriage taboos and blood feud, customs regulating relationships between tribes, and customs relating to the use of the means of production belonging to a tribe. Law in this manner is transformed into an eternal institution, inherent to all forms of human society. From here it is just one step to the understanding of law as an eternal idea; and Reisner in essence leans towards such an understanding.

This viewpoint of course fundamentally contradicts Marxism. The customs of a society not knowing class divisions, property inequality and exploitation, differ qualitatively from the law and the statutes of class society. To categorize them together means to introduce an unlikely confusion. Every attempt to avoid this qualitative difference inevitably leads to scholasticism, to the purely external combination of phenomena of different types, or to abstract idealist constructs in the Stammlerian spirit.

We should not be confused by the fact that Engels, in The Origin of the Family, Private Property and the State , uses the expression “the eternal law”; or, that he cites, without particular qualification, Morgan’s description of the member of a tribal community as having “equality of rights”, and of a person violating tribal customs as having placed himself “outside the law”.

It is clear that the terms “right” and “law” are used here not in their direct sense, but by analogy. This does not mean, however, that in classless society we will be dealing only with purely technical rules. Such an argument was put forward by Stuchka in his dispute with Reisner. To assign the customs and the norms of pre-class society to the area of technology would mean to give the concept of technology a very extended and undefined sense. Marriage prohibitions, customs relating to the organization of the tribe, the power of the elders, blood feud etc. – all this of course is not technology and not technical methods, but the customs and norms of social order. The content and character of these customs corresponded of course to the level of productive forces and the production relationships erected on it. These social forms should be considered as a superstructure upon the economic base. But the basic qualitative difference between this superstructure and the political and legal superstructures of class society, consists in the absence of property inequality, exploitation, and organized class coercion.

While Marxism strives to give a concrete historical meaning to law, the characteristic feature of bourgeois philosophers of law is, on the contrary, the conclusion that law in general is outside classes, outside any particular socio-economic formation. Instead of deriving a concept of law from the study of historical facts, bourgeois scholars are occupied with the concoction of theories and definitions from the empty concept or even the word “law”.

We already saw how Stammler, with the help of scholastic contrivances, tries to show that concrete facts have no significance for the definition of law. We, however, say the opposite. It is impossible to give a general definition of law without knowing the law of slave-owning, feudal and capitalist societies. Only by studying the law of each of these socio-economic formations can we identify those characteristics which are in fact most general and most typical. In doing so we must not forget Engels’ warning to those who tend to exaggerate the significance of these general definitions.

For example, in Chapter VI of the first part of Anti-Dühring , having given a definition of life, Engels speaks of the inadequacy of all definitions because they are necessarily limited to the most general and simplistic areas. In the preface to Anti-Dühring , Engels formulated this thought still more clearly, indicating that “the only real definition is the development of the essence of the matter, and that is not a definition”. However, Engels at once states that for ordinary practical use, definitions which indicate the most general and characteristic features of a category are very convenient. We cannot do without them. It is also wrong to demand more from a definition than it can give; it is wrong to forget the inevitability of its insufficiency.

These statements by Engels should be kept in mind in approaching any general definition, including a definition of law. It is necessary to remember that it does not replace, and cannot replace, the study of all forms and aspects of law as a concrete historical phenomenon. In identifying the most general and characteristic features we can define law as the form of regulation and consolidation of production relationships and also of other social relationships of class society; law depends on the apparatus of state power of the ruling class, and reflects the interests of the latter.

This definition characterizes the role and significance of law in class society. But it is nevertheless incomplete. In contradistinction to all normative theories – which are limited to the external and formal side of law (norms, statutes, judicial positions etc.) – Marxist-Leninist theory considers a law as a unity of form and content. The legal superstructure comprises not only the totality of norms and actions of agencies, but the unity of this formal side and its content, i.e. of the social relationships which law reflects and at the same time sanctions, formalizes and modifies. The character of formalization does not depend on the “free will of the legislator”; it is defined by economics, but on the other hand the legal superstructure, once having arisen, exerts a reflexive effect upon the economy.

This definition stresses three aspects of the matter. First is the class nature of law: every law is the law of the ruling class. Attempts to consider law as a social relationship which transcends class society, lead either to superficial categorization of diverse phenomena, or to speculative idealistic constructs in the spirit of the bourgeois philosophy of law. Second is the basic and determinant significance of production relationships in the content that is implemented by law. Class interests directly reflect their relationship to the means of production. Property relationships occupy the prominent place in the characterization of a specific legal order. Communist society, where classes disappear, where labour becomes the primary want, where the effective principle will be from each according to his abilities, to each according to his needs: this does not require law. The third aspect consists of the fact that the functioning of a legal superstructure demands a coercive apparatus. When we say that social relationships have assumed a legal expression, this means inter alia that they have been given a coercive nature by the state power of the ruling class. Withering away of the law can only occur simultaneously with the withering away of the state.

Relationships which have received legal expression are qualitatively different from those relationships which have not received this expression. The form of this expression may be different, as was indicated by Engels [5] ; it may sometimes be good and sometimes be bad. It may support the progressive development of these relationships or, on the contrary, retard them. Everything depends on whether power is in the hands of a revolutionary or a reactionary class. Here the real significance of the legal superstructure appears. However, the degree of this reality is a question of fact; it can be determined only by concrete study and not by any a priori calculations. Bourgeois jurists characteristically concentrate their attention on form, and utterly ignore content. They turn their backs on life and actual history. As Engels showed, “they consider public and private law as independent areas, which have their own independent development and which must and may be subjected to independent systematic elaboration by the consistent elimination of all internal contradictions.” [6]

Bourgeois jurists usually define law as the totality of norms to which a state has given coercive power. This view of law typifies so-called legal positivism. The most consistent representatives of this trend are the English jurists: of the earliest Blackstone (eighteenth century), and thereafter Austin. In other European countries legal positivism also won itself a dominant position in the nineteenth century, because the bourgeoisie either gained state power or everywhere achieved sufficient influence in the state so as not to fear the identification of law with statute. At the same time nothing was better for legal professionals, for judges, [and] for defence counsel since this definition fully satisfied their practical needs. If law in its entirety was the complex of orders proceeding from the state, and consolidated by sanction in the case of disobedience, then the task of jurisprudence was defined with maximum clarity. The work of the jurist, according to the positivists, did not consist in justifying law from some external point of view – philosophers were occupied with this; the task of the jurists did not include explaining from where a norm emerged, and what determined its content – this was the task of political scientists and sociologists. The role of the jurist remained the logical interpretation of particular legal provisions, the establishment of an internal logical connection between them, combining them into larger systematic units in legal institutions, and finally in this way the creation of a system of law.

The definition of law as the totality of norms is the starting point for supporting the so-called dogmatic method. This consists of using formal logical conclusions in order to move from particular norms to more general concepts and back, proceeding from general positions to propose the solution of concrete legal cases or disputes. It is obvious that the practical part of this role developing especially luxuriantly in the litigious circumstances of bourgeois society – has nothing in common with a scientific theory of law. Applications of so-called legal logic are not only theoretically fruitless, they are not only incapable of revealing the essence of law and thus of showing its connection with other phenomena-with economics, with politics, with class struggle – but they are also harmful and impermissible in the practice of our Soviet courts and other state institutions. We need decisions of cases, not formally, but in their essence; the state of the working people, as distinct from the bourgeois state, does not hide either its class character or its goal – the construction of socialism. Therefore, the application of norms of Soviet law must not be based on certain formal logical considerations, but upon the consideration of all the concrete features of the given case, of the class essence of those relationships to which it becomes necessary to apply a general norm, and of the general direction on of the policy of Soviet power at the given moment. In the opposite case a result would be obtained which Lenin defined as: “Correct in form, a mockery in substance.”

The denial of formal legal logic cultivated by the bourgeoisie does not mean a denial of revolutionary legality, does not mean that judicial cases and questions of administration must be decided chaotically in the Soviet state, systematically on the basis of the random whims of individuals, or on the basis of local influences. The struggle for revolutionary legality is a struggle on two fronts: against legal formalism and the transfer to Soviet soil of bourgeois chicanery, and against those who do not understand the organizational significance of Soviet decrees as one of the methods of the uniform conduct of the policy of the dictatorship of the proletariat.

Thus, the law is the means of formulating and consolidating the production relationships of class society and the social relationships which are connected with them. In the legal superstructure, these relationships appear as property relations and as relations of domination and subordination. They appear, in particular, as relations of an ideological nature, i.e. as relations which are formed in connection with certain views and are supported by the conscious will of the people.

We shall not touch upon the question of the degree to which the legal ideology of the exploiting classes is capable of correctly reflecting reality, and in what measure it inevitably distorts it (representing the interest of the exploiting class as the social interest in order, legality, freedom etc.). Here, we merely emphasize the fact that without the work of legislators, judges, police and prison guards (in a word, of the whole apparatus of the class state), law would become a fiction. “Law is nothing without an apparatus capable of enforcing observation of the norms of law” (Lenin).

The conscious will – towards the formulation and consolidation of production and other relationships – is the will of the ruling class which finds its expression in custom, in law, in the activity of the court and in administration. The legal superstructure exists and functions because behind it stands an organization of the ruling class, namely the apparatus of coercion and power in the form of the army, the police, court bailiffs, prison guards and hangmen. This does not mean that the ruling class has to use physical force in every case. Much is achieved by simple threat, by the knowledge of helplessness and of the futility of struggle, by economic pressure, and finally by the fact that the working classes are in the ideological captivity of the exploiters. It is sufficient to mention the narcotic of the religious ideology of humility and meekness, or the genuflection before the idol of bourgeois legality preached by the reformist.

But the ultimate argument for, and the basis of, the legal order is always the means of physical force. Only by depending on them could the slaveowner of antiquity or the modern capitalist enjoy his right.

The attempts by certain bourgeois jurists to separate law from the state, or to contrast “law” and “force”, are dictated by the attempt to hide and conceal the class essence of law.

Often these proofs that law is independent of the state bear a truly laughable character. Thus, for instance, Stammler claims that he has proved this thesis relying on the fact that on a dirigible which flies over the North Pole, i.e. outside the sphere of action of any state power, the emergence of legal relationships is possible.

By such empty dogmatic chicanery the scientific question of the relationship of state and law is decided. Can one be surprised at Lenin’s sharp reaction to Stammler when he says that: “From stupid arguments, Stammler draws equally stupid conclusions.”

The dependence of law on the state, however, does not signify that the state creates the legal superstructure by its arbitrary will. For the state itself, as Engels says, is only a more or less complex reflection of the economic needs of the dominant class in production.

The proletariat, having overthrown the bourgeoisie and consolidated its dictatorship, had to create Soviet law in conformity with the economy, in particular the existence of many millions of small and very small peasant farms. After the victory of the proletarian revolution the realization of socialism is not an instantaneous act but a long process of construction under the conditions of acute class struggle.

From the policy of limiting its exploitative tendencies and the elimination of its front ranks, we moved to the policy of liquidating the kulaks as a class by widespread collectivization. A successful fulfilment of the first Five Year Plan; the creation of our own base for the technical reconstruction of the whole national economy; the transfer of the basic mass of the peasantry to collectivization; these events enabled the basic task of the second Five Year Plan to be:

the final liquidation of capitalist elements and classes in general, the full elimination of the causes of class differences and exploitation, the overcoming of the survivals of capitalism in the economy and the consciousness of the people, the transformation of the whole working population of the country into conscious and active builders of a classless society. [7]

At each of these stages Soviet law regulated and formulated production relationships differently.

Soviet law in each of the stages was naturally different from the law of capitalist states. For law under the proletarian dictatorship has always had the goal of protecting the interest of “the working majority, the suppression of class elements hostile to the proletariat, and the defence of socialist construction. Those individual Soviet jurists who considered law as the totality of norms (i.e. externally and formally) are not in a position to understand this. Finding identically formulated norms in the system of bourgeois and Soviet law, these jurists began to speak of the similarity between bourgeois and Soviet law, to search out “general” institutions, and to trace the development of certain “general” bases for bourgeois and Soviet law. This tendency was very strong in the first years of NEP. The identification of Soviet with bourgeois law derived from an understanding of NEP as a return to capitalism, which found expression in the Marxist ranks.

If NEP, as the Zinoviev opposition asserted at the XIVth Party Congress, is “capitalism which holds the proletarian state on a chain”, then Soviet law must be presented as bourgeois law, in which certain limitations are introduced, to the extent in the period of imperialism that the capitalist state also regulates and limits the freedom of disposition of property, contractual freedom etc.

Such a distortion in the description of NEP led directly to an alliance with bourgeois reformists in the understanding of Soviet law.

In fact, NEP “is a special policy of the proletarian state intended to permit capitalism while the commanding heights are held by the proletarian state, intended for the struggle between the capitalist and socialist elements, intended for the growth of the role of the socialist elements at the expense of the capitalist elements, intended for the victory of the socialist elements over the capitalist elements, intended for the elimination of classes and for the construction of the foundation of a socialist economy.” [8]

Soviet law as a special form of policy followed by the proletariat and the proletarian state, was intended precisely for the victory of socialism. As such, it is radically different from bourgeois law despite the formal resemblance of individual statutes.

Juridicial formalism, which conceives of nothing other than the norm and reduces law to the purely logical operation of these norms, appears as a variety of reformism, as a Soviet “juridical socialism”. By confining themselves only to the norm and the purely juridical (i.e. formal ideas and concepts), they ignored the socio-economic and political essence of the matter. As a result, these jurists arrive at the conclusion that the transformation of property from an arbitrary and unrestricted right into a “social function” (i.e. a tendency which is “peculiar to the law of the advanced”, that is, capitalist, countries), finds its “fullest” expression in Soviet legislation. Making this contention, the Jurists “forgot” such a trifle as the October Revolution and the dictatorship of the proletariat.

It is not only important to “read” the norm, but also to know what class, what state, and what state apparatus is applying this norm.

6. Law and production relationships

Production relationships form the basis of society. It is necessary to begin with these relationships in order to comprehend the complex picture presented by the history of mankind.

To search for the basic characteristic of society and social relations in an area other than production relationships means to deprive oneself of the possibility of a scientific understanding of the laws of development of social formations. However, it by no means follows from this that, according to Marx, only relations of production and exchange are social relations. Such a concept is a caricature of Marxism. The equation of social relations with production relations in this case is understood purely mechanically. However, a number of times Lenin noted that Marx’s great service was that he did not limit himself to the description of the economic “skeleton” of capitalist society, but that:

in explaining the construction and development of a definite social formation “exclusively” by production relations, he nonetheless thoroughly and constantly studied the superstructure corresponding to these production relations, which clothed the skeleton with flesh and blood. The reason that Das Kapital had such enormous success was that this book (“by a German economist”) showed the capitalist social formation as a living thing-with its everyday aspects, with the actual social phenomena essential to the production relations between antagonistic classes, with the bourgeois political superstructure protecting the domination of the capitalist class, with the bourgeois ideas of freedom, equality etc., with bourgeois family relations. [9]

Stuchka looks differently at the matter. In his opinion, Marx considered only relations of production and exchange to be social relations. But this would mean affirming that Marx limited himself to the “skeleton” alone, as if having indicated the basic and eventually determinant in social life and social relations he then passed by that which is derivative and requires explanation. However, more than once Marx directly points out the existence of social relationships which are not production relations but which merely derive from them and correspond to them. Characterizing revolutionary proletarian socialism in France in 1848, Marx wrote:

This socialism is the proclamation of the permanence of the revolution , a proclamation of the class dictatorship of the proletariat as a necessary transition toward the elimination of class differences altogether, toward the elimination of all production relations upon which these differences are based, toward the elimination of all social relationships corresponding to these production relations, toward a revolution in the entire world of ideas arising from these relationships. [10]

Nevertheless, Comrade Stuchka firmly defends his understanding of the term “social relationships”:

We proceed from social relationships; I emphasize the word “social”, for here my critics are desperately confused. I thus selected the word “social” and a whole chapter in my first book was dedicated to it only in the sense of relations of production and exchange (as Marx and every Marxist understands this). [11]

Proceeding from the equation of production and social relationships, Stuchka defined law as a “system (or order) of social relations corresponding to the interests of the ruling class and protected by its organized force”. In this definition, as he himself indicated, there was room only for the law of property and the law of obligations.

As earlier, so even now [he wrote] I consider basic law , law in general, to be civil law , understanding thereby the form of organization of social relationships in the narrow and specific sense of the word (i.e. relations of production and exchange). I consider that all the remaining areas of law are either of a subordinate or derivative character, and that only bourgeois law (subjecting to its influence all the remaining areas of law) created a legal state, or state law and criminal law, as an equivalent norm for crime and punishment, not even mentioning administrative, financial etc., and finally international law or even the law of war. [12]

The positions outlined in this excerpt contain a series of mistakes. There is no doubt that the formulation and conformation of social relationships to the means of production is basic to law. Proceeding from the economic basis, from different forms of exploitation, we differentiate slaveowning, feudal and capitalist systems of law. But, in the first place, it is incorrect to subsume the property relations of slaveowning or feudal society under the concept of civil, i.e. bourgeois, law as “law in general”. In the second place, state law may not be equated with the so-called Rechtsstaat of the bourgeoisie. If one takes this point of view then one must either deny the existence of a distinctive feudal state law, or show that despite the existence of a Soviet state we do have Soviet state law. At the same time, in other places in his textbook, Stuchka proceeds from the existence of different class systems of law: feudal, bourgeois, Soviet. Here he argues for a “general law” which is equated with the civil law of bourgeois society. At the same time state law is equated with the theory of bourgeois jurists of the so-called Rechtsstaat , and criminal law (i.e. formalized class repression) with the ideology of equivalent retribution.

The basic question – do relationships exist that enter into the content of law, which are not, however, relations of production and exchange? – is avoided by Stuchka; he cites the subsidiary, derivative etc. character of state, criminal etc. law. However, it is clear that the structure of family relationships, the formalization of class domination in the state organization, the formalization of class repression, all this is embraced by the different branches of law (family, state and criminal).

The content of this legal intermediary is the social and political relationships which, in the final analysis, are reducible to the same production relationships, but by no means correspond to them.

Stuchka’s subsequent definition of law suffers from the shortcoming that he limits the area of law merely to production relations. This definition also introduces confusion because it confuses law with economics. Proceeding from the indisputable position that not all which is stated in a norm (in a statute) is realized in fact, Stuchka has made the incorrect conclusion that law is indeed the very relation of production and exchange. Stuchka has therefore declared Marx’s teaching – that law is an ideological superstructure to be a tribute to the “volitional theory” of the old jurists.

Whoever has mastered the form of theorizing of Marx and Engels that capital, money etc., are social relationships, will at once understand my views on the system of social relationships. This will be hardest of all for a jurist for whom law is a purely technical and artificial superstructure, strangely enough, holding sway over its base. Even Karl Marx gave a small tribute to this concept when he spoke of law as an ideological superstructure. But Marx was raised on Roman law and in general on the juridic concepts of the 1830s, considering it an expression “of the general will” ( Volkswillen ), and he was [therefore] accustomed to its terminology. [13]

In conducting the struggle with the narrow, formal legal concept of law as a totality of norms, we cannot deny the real existence of the legal superstructure, i.e. of relationships formulated and consolidated by the conscious will of the ruling class. Only to the extent that this process of formulation and consolidation proceeds may one speak of law. To study law only as totality of norms means to follow the path of formalism and dogmatism. But to study law only as relationships of production and exchange means to confuse law with economics, to retard the understanding of the reciprocal action of the legal superstructure and its active role. At the same time as production relations are imposed on people regardless of their will, legal relationships are impossible without the participation of the conscious will of the ruling class. The teaching of Marx, Engels and Lenin on law as an ideological superstructure needs no correction. Law cannot be understood unless we consider it as the basic form of the policy of the ruling class. In the later editions of The Revolutionary Role of State and Law , Stuchka supplemented his definition of law, developing the theory of the so-called three forms of law. The first, or in Stuchka’s words, the concrete form of law, is a legal relationship which corresponds to a production relationship and, with it, constitutes the base [or] reality. On the contrary, the two “abstract” forms – statute and legal ideology as Stuchka expresses it – are the essence of “the manifest superstructure”. [14]

This approach is also incorrect and non-dialectical. A legal relationship is a form of production relations because the active influence of the class organization of the ruling class transforms the factual relationship into a legal one, gives it a new quality, and thus includes it in the construction of the legal superstructure. This result is not achieved automatically by laissez faire , in the same way that prices are established under free competition. Even in the case of so-called customary law, the ruling class – through its special agencies, through the courts – ensures that the relations correspond to obligatory rules. This is all the more true with respect to the legislative creation of norms.

In particular, the revolutionary role of the legal superstructure is enormous in the transitional period when its active and conscious influence upon production and other social relationships assumes exceptional significance. Soviet law, like any law, will cease to exist if it is not applied. But the application of law is an active and conscious process by which the state apparatus plays the decisive role as a powerful weapon of class struggle. Would it be possible, for instance, to speak of Soviet law which did not somehow recognize the Soviet state, the Soviet agencies of power, Soviet courts etc.? It is clear that while an individual statute may be removed from the real legal order and remain a pious wish, concrete legal relationships may never be removed from the consciousness and will of the ruling class, may never be transferred from the superstructure to the base without parting from the heart of historical materialism.

From all that has been said above it is clear that the definition of law as a formal intermediary of the economy must be recognized as insufficient and incorrect. The different branches of law are connected differently with the economy; this must never be forgotten, and this is not expressed in the above-mentioned definition. On the contrary it can lead to the notion that the area of law is limited to property relationships alone. Then all the other types of law must be declared non-existent. Stuchka would, in fact, have had to reach this conclusion. But he speaks of criminal and state law, not entirely consistently with his other position, i.e. by referring to them he recognizes their existence.

There is no doubt that economics is at the base of political, familial and all other social relations. [15] But the election law of any capitalist country facilitates the economy differently from civil law or the Criminal Code. To try to force all the varied branches of law into one formula is to give preference to empty abstractions.

Law as a formal facilitation of social and (primarily) production relationships must be studied concretely. This study may not be replaced with ready citations from Hegel with respect to the “transformation of form into substance and substance into form”. The dialectical method, which teaches that every truth is concrete, becomes in this instance its own opposite-dead scholasticism, barren arguments and disputes on the theme that “form is not without content and content not without form”. However, the matter really consists of showing the role and character of law as form in specific and concrete branches of law and concrete historial conditions with a relation to concrete content. Only in this manner can the real relation of form and content be established and can one be convinced that it is far from identical in different instances. Often legal form hides economic content directly contrary to it (thus in the period when we conducted the policy of restricting the kulak, the leasing of a horse or tools by a poor peasant to a rich one often hid the sale of the first’s labour power to the second). A transaction of purchase and sale can hide the most diverse economic content. The same could be said about any other relationships within the so-called law of obligations. Here we meet with a phenomenon whose form is relatively indifferent to its content, but it is improper to conclude from this that in civil law we have a “faceless instrumentality” which must be used independently of the economic class content of the relationships which it implements. On the contrary, the significance of form is recognized only through content, through economics, through politics and through relations between classes.

Therefore, it is a flagrant error to equate law as an historical phenomenon – including various class systems – with the totality of those features of bourgeois law that derive from the exchange of commodities of equal value. [16] Such a concept of law minimizes the class coercion essential to bourgeois law, essential to feudal law and to all law. Law in bourgeois society serves not only the facilitation of exchange, but simultaneously and mainly supports and consolidates the unequal distribution of property and the monopoly of the capitalist in production. Bourgeois property is not exhausted by the relationships between commodity owners. These [owners – eds. ] are tied by exchange and the contractual relationship is the form of this exchange. Bourgeois property includes in a masked form the same relationship of domination and subordination which, in feudal property, appears chiefly as personal subordination.

This methodological mistake was related to the relegation of the class repressive role of law, and to an incorrect presentation of the relation between state and law (the state as the guarantor of exchange), and to mistakes in questions of morality (the denial of proletarian morality) and in questions of criminal law.

The attempts to distinguish between formal characteristics and abstract legal concepts expressing the relationship between commodity owners, and to proclaim this “form of law” as the subject of the Marxist theory of law, should be recognized as grossly mistaken. This paves the way to the separation of form and content, and diverts theory from the task of socialist construction to scholasticism.

The immediate relation, in practice, between the proletariat (as the ruling class) and law (as a weapon with whose help the tasks of class struggle at any given stage are decided) is in this case replaced by the abstract theoretical denial of the “narrow horizons of bourgeois law” in the name of developed communism.

From this perspective Soviet law is seen exclusively as a legacy of class society imposed on the proletariat and which haunts it until the second phase of communism. The abstract theoretical exposure of “bourgeois” law hides the task of the concrete analysis of Soviet law at different stages of the revolution. Accordingly, it gives insufficient concrete indication of the practical struggle against bourgeois influences, and against opportunist distortions of the Party’s general line on Soviet law.

The theoretical mistake of exaggerating the importance of market relations can be the basis for right opportunist conclusions about always preserving the bourgeois forms of law corresponding to private exchange. Conversely, to ignore exchange in considering the problems of Soviet law leads to “leftist” positions about the withering away of law which is now in the process of socializing the means of production, and about the withering away of economic accountability and the principle of payment according to labour, i.e. to the defence of the elimination of individual responsibility and wage egalitarianism.

Top of the page

1. K. Marx, Letter to Weydemeyer (March 5, 1852), MESW , vol.1, p.528.

2. V. I. Lenin, The Economic Content of Narodnism (1895), LCW , vol.1, p.419.

3. See Kellreiter’s article The State ;, in D. Elster et al. (eds), Handwörterbuch der Rechtswissenschaft (1923), Fischer, Jena, p.599.

4. V.I. Lenin, A Contribution to the History of the Question of Dictatorship (1920), LCW , vol.31, p.353.

5. F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), MESW , vol.3, p.371.

6. ibid. , p.371.

7. From a resolution of the XVIIth Party Conference (1932).

8. J. Stalin, The Fourteenth Congress of the CPSU (1925), Stalin: Works, Foreign Languages Publishing House, Moscow (1954), vol.7, p.374.

9. V.I. Lenin, What the “Friends of the People” Are (1894), LCW , vol.1, pp.141-42.

10. K. Marx, The Class Struggles in France (1850), MESW , vol.1, p.282.

11. P.I. Stuchka, A Course on Soviet Civil Law (1927), Communist Academy, vol.1, p.13.

12. ibid. , pp.78-79.

13. P.I. Stuchka, The Revolutionary Role of Law and State (1921), Moscow, p.15.

14. ibid. (3rd edition); and P.I. Stuchka’s article Law in Encyclopaedia of State and Law, (1925-1927), vol.3, pp.415-430.

15. “The state and law are determined by economic relations. Of course, the same must be said of civil law whose role in essence consists of the legislative clarification of the existing economic relations between individuals which are normal in the given circumstances” F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), op. cit. p.370.

16. This erroneous conception was developed in E.B. Pashukanis, The General Theory of Law and Marxism (1927), 3rd edition. See also E.B. Pashukanis, The Situation on the Legal Theory Front , Soviet State and the Revolution of Law (1930), no.11-12; and For a Marxist-Leninist Theory of State and Law (1931) Moscow, where a critique of this mistaken conception is given.

Last updated on 13.5.2004

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Natural Law ethics
The point of natural law ethics is to figure out what fulfils the telos of our nature and act on that. By doing so, we glorify God. This cannot be done without intending to do it. A good exterior act without a good interior act does not glorify God because it is not done with the intention of fulfilling the God-given goal/telos of our nature.
Critically evaluate Natural Law as an approach to making 21st ...
Natural Law, originating from Aristotle, forms the basis of Roman Catholic moral philosophy. In comparison to Utilitarianism, Proportionalism offers a clearer and more universal set of norms for 21st-century moral decision-making. It aligns with the tradition of Natural Law and provides flexibility in complex situations, making it the best approach for modern ethical dilemmas.
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The Natural Law Tradition in Ethics. First published Mon Sep 23, 2002; substantive revision Sun May 26, 2019. 'Natural law theory' is a label that has been applied to theories of ethics, theories of politics, theories of civil law, and theories of religious morality. We will be concerned only with natural law theories of ethics: while such ...
Natural Law
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 moral theory, the moral standards that govern ...
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Natural law seeks to give a rational basis for laws, based on our understanding of purpose. It is deeply rooted in the classical civilisations; we can see this in works such as Sophocies's play Antigone, where the rules of God overrule the laws of the state. The stoics were also a proponent of natural law, they taught of the importance of ...
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Maccormick, Neil, 'Natural Law and the Separation of Law and Morals', in Robert P George (ed.), Natural Law Theory: Contemporary Essays (Oxford, 1994; online edn, ... That has been the achievement of John Finnis's Natural Law and Natural Rights, a book which for British scholars has brought back to life the classical Thomistic/Aristotelian ...
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See our A-Level Essay Example on Analyse and evaluate the strengths and weaknesses of natural moral law as a definitive ethical theory, Practical Questions now at Marked By Teachers. ... Natural moral law gives a concrete reason to be moral and provides a firm basis for individuals to refuse to cross moral boundaries. It also provides ...
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Predictors of Social Evaluation, 17 Law & Social Inquiry 191 (1992); Richard D. Rieke and ... The volume offers an impressive array of essays by contempo rary natural law theorists and their critics. For those who may ... is a moral reality, or a natural law, is "uselessly vague" indeed if we ...
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Natural Law as Fact, Theory, and Sign of Contradiction Download; XML; The Virtues of the Natural Moral Law Download; XML; Teleology and Evidence:: Reasoning about Human Nature Download; XML; Politics Pointing beyond the Polis and the Politeia:: Aquinas on Natural Law and the Common Good Download; XML; Natural Right and the Problem of Public ...
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the 'lesser of two evils'. Some criticise Natural Law, claiming that it is the outcome that is wrong (e.g. a 9 year old going through the agony of childbirth). Rather than 'Do good [acti ons] and avoid evil [actions]' it should be 'Bring about good things and avoid bringing about bad things'. Tele ology - everything has a telos, end
Natural Law summary notes
Aquinas' Natural law ethics AO1. Aquinas claimed there are four tiers of law: Eternal law - God's mind and omnibenevolent plan for the universe - this is beyond our understanding. Divine law - the bible. Natural law - the orientation towards the good built into our nature by God. Human law - the laws we make (which should follow ...
Natural moral law 30
In addition, Aquinas natural moral law assumes that God exists, Aquinas believes humans are created by God and given a purpose by their creator, meaning that there is an eternal law, which is god's purpose for the entire universe and everyone in it, and since he is a loving creator, he reveals portions of his eternal law to humans in a direct way.
Natural Moral Law Theory in a Nutshell
/ Natural Moral Law, Paper 2 Religion and Ethics / By Paul Whicker Natural Law is an example of a deontological, absolutist ethical theory. Its origins can be traced back to Greek philosophy, specifically that of Aristotle and the Stoics. Aristotle was concerned with the telos or purpose of human existence and thought that it was to achieve ...
Essay
Essay - Full mark 2018 essay on euthanasia & Natural law. October 8, 2018. Assess the view that natural law is of no help with regard to the issue of euthanasia. OCR Paper H573/2 June 2018. Here is an answer written in the actual June 2018 exam that secured full marks. I have added comments to demonstrate what is good and not so good about ...
OCR A level Religious Studies
OCR A level Religious Studies - Natural Moral Law Essay Plan. Subject: Philosophy and ethics. Age range: 16+. Resource type: Assessment and revision. File previews. docx, 17.85 KB. This is a comprehensive, critical essay plan on natural law ethics, covering many aspects of Aquinas' explanation, along with evaluative pointers and critics to ...
Yale Law Journal
32. Law is a social practice that pursues a moral purpose. Analyzing Professor Julie Dickson's Evaluation and Legal Theory, this Review brings the natural-law tradition into conversation with contemporary philosophy of social science to seek an approach to general jurisprudence that respects both the factual and ideal dimensions of law's life.
Natural Law Essay Plan
Introduction: One of the most off putting things about the label 'natural law' is that it has no natural meaning_. As Phillip Soper has observed, 'natural law refers to both a moral theory and a legal_ theory'. Natural law theory is concerned with establishing that there is a necessary link between law and morality. It shall be assumed that for a natural law theory to have an ...
Natural Moral Law
Natural Moral Law. Advantages. Rational - Natural Law uses practical reason, it is a common-sense approach. Objective - Natural Law gives us rules that are true independently of our individual thoughts and desires. A certain amount of proportionalism may be allowed as secondary precepts are derived from primary precepts and so may vary.
Moral Skepticism Vs Natural Law
Moral skepticism is inherently fallacious, premised by the ad ignorantiam that lack of evidence proves natural law does not exist or is unknowable. Further, absent a normative framework outside culture, the legitimacy of law and legal systems is based ad verecundiam upon the dictates, predilections, and whim of the sovereign.
natural moral law essays Flashcards
natural moral law essays. Get a hint. natural moral law provides clear guidance on how to act in moral situations - p1 (agree) Click the card to flip 👆. natural moral law provides clear guidance on how to act as it offers universal rules that are easily applicable. the primary precepts may not seem that way but the secondary precepts ...
PDF Morality, Ethics, and Law: Introductory Concepts
The purpose of this article is to differentiate morality, ethics, and law.Morality refers to a set of deeply held,widely shared,and relatively sta- ble values within a community. Ethics as a philosophical enterprise in- volves the study of values, and the justification for right and good actions, as represented by the classic works of Aristotle ...
Evgeny Pashukanis: Marxist Theory of State and Law (1932)
1. The doctrine of socio-economic formations as a basis for the Marxist theory of state and law. The doctrine of state and law is part of a broader whole, namely, the complex of sciences which study human society. The development of these sciences is in turn determined by the history of society itself, i.e. by the history of class struggle.
The Authority of Law: Essays on Law and Morality (Paperback)
Within this framework Raz then examines the areas of legal thought that have been viewed as impregnated with moral values - namely the social functions of law, the ideal of the rule of law, and the adjudicative role of the courts. The final part of the book is given to understanding the proper moral attitude of a citizen towards the law.
PDF Cruising by The Bolshoi, Cruising by The Moscow Khoralnaya
runs its natural course, they are the first to topple it. Meanwhile, Russians, they are hap-py to accept any idiotic law and order as long as things go on as normal and nothing trou-bles their laziness. We hate Jews. We are the friends of idleness and the status quo." Jumping to 2013, the prominent gay rights ac-

Critically evaluate Natural Law as an approach to making 21st century moral decisions. [40]

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The Natural Law Tradition in Ethics

1.1 Natural law and divine providence

2. Theoretical Options for Natural Law Theorists

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Analyse and evaluate the strengths and weaknesses of natural moral law as a definitive ethical theory

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Natural Law summary notes

Aquinas’ Natural law ethics AO1

Whether Natural law is outdated

Modern science’s rejection of final causation (telos)

Natural law ethics & Cross-cultural moral variation

Aquinas’ Natural theology vs Karl Barth’s protestant critique

Proportionalism & the double effect

Natural Moral Law Theory in a Nutshell

Essay – Full mark 2018 essay on euthanasia & Natural law

Assess the view that natural law is of no help with regard to the issue of euthanasia. OCR Paper H573/2 June 2018

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OCR A level Religious Studies - Natural Moral Law Essay Plan

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Reevaluating Legal Theory

Introduction

Volume 133’s Emerging Scholar of the Year: Robyn Powell

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Natural Moral Law

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Evgeny Pashukanis

Introductory Note

CHAPTER I Socio-economic Formations, State, and Law

3. The class type of state and the form of government

4. The class nature of law

5. Law as an historical phenomenon: definition of law

6. Law and production relationships

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The Authority of Law: Essays on Law and Morality (Paperback)

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