LIBERTARIAN ANARCHY by GERARD CASEY

Author:GERARD CASEY
Language: eng
Format: epub
Publisher: Continum International Publishing Group
Published: 2012-08-21T16:00:00+00:00

Natural law

Customary law is a particular and local concretization of natural law, having regard to local conditions and circumstances. Of all essentially contested philosophical terms, ‘natural law’ surely has to be one of the most contested. The use of this term in some philosophical circles is an incitement to philosophical violence!32 The idea of natural law found its classical expression in the philosophy of the Stoics and was strikingly expressed by Cicero:

Indeed true law is right reason congruent with nature, spread among all people, constant, everlasting; it calls to duty by ordering and deters from deceit [crime or wrongdoing] by forbidding. Nevertheless neither does it order or forbid upright men in vain, nor does it move the wicked by ordering or forbidding. It is not holy to alter this law, nor is it permitted to modify any part of it, nor can it be entirely repealed. In fact we cannot be released from this law by either the Senate or the people. No Sextus Aelius33 should be sought as expositor or interpreter. There will not be one law at Rome, another at Athens, one now, another later, but one law both everlasting and unchangeable will encompass all nations and for all time. And one God will be in common as though he were a teacher and general of all people. He will be the author, umpire, and provider of this law. He who will not obey it will flee from himself and, defying human nature, by reason of this very fact will suffer the greatest penalties, even if he escapes other things that are thought to be punishments.34

Part of the antipathy experienced by some to natural law arises from the mistaken notion that it necessarily has theological implications and is essentially a form of a ‘Divine Command’ ethical theory. This is not so and that it is not so has been obvious since the time of Hugo Grotius. Frank van Dun expressed the view that the term ‘natural’ in ‘natural law’ is to be taken literally, holding that natural law ‘refers to the natural, physical world of living human beings’.35 Likewise, the ‘law’ in ‘natural law’ is not to be understood as a kind of super-statute, a kind of command or directive of some celestial or transcendental lawgiver. It is, instead, to be taken as referring to ‘the order or bond of conviviality that has its natural foundation in the plurality and diversity of distinct and separate persons’.36 Similarly, the renowned legal theorist Lon Fuller who deals in his work with what he takes to be the natural laws of human undertakings clearly states that:

These natural laws have nothing to do with any ‘brooding omnipresence in the skies. . . . They remain entirely terrestrial in origin and application.’ These natural laws are not residents of some Empyrean region that descend on us from on high. ‘They are not “higher” laws; if any metaphor of elevation is appropriate they should be called “lower” laws. They are like the . . .

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.