DREADTHESIS: THE NEW NATURAL LAW AND THE TRANQUILLITAS ORDINIS

THE NEW NATURAL LAW AND THE TRANQUILLITAS ORDINIS

John Heard*

‘…lex esse non videtur, quae iusta non fuerit…’[1]

‘Human law has the quality of law only in so far as it proceeds according to right reason: and in this respect it is clear that it derives from the eternal law. In so far as it deviates from reason it is called an unjust law, and has the quality not of law but of violence’.[2]

I Introduction

This paper shall be concerned first to provide a brief overview of the most recent developments in natural law thinking represented by the work of John Finnis (“the new natural law”)[YUN1] before enunciating the answers the school holds out for the most fundamental questions in jurisprudence. To this end the paper shall engage with Finnis’ discourse on legal authority and notions of obedience with regard to judicial judgements, legislative regimes and other sources of law from a natural law perspective. The manner in which a law can be said to be a law will be enunciated via recourse to the ancient notion of the common good. This section shall introduce the idea of the multiplicity of legal regimes imagined as paths to the establishment of the common good. This last notion will be shown to be nothing more than the right ordering of human activity fully cognisant of the eternal law and thereby allowing access to justice and human flourishing.

Discussion will then shift to the reasons why anyone would be obligated in any way by virtue of this fact and indeed if and why they ought to render obedience to any legal system whatsoever. This part of the paper will engage directly with the notion of justice, the concept will be defined and the manner in which any legal instrument or judicial act can be said to be just will be articulated. To close this section an examination of the manner in which a law can be said to be not-law, or more like a violence than anything recognisably deserving of obedience shall be set forth. As an addendum the serious concerns of the Critical theorists regarding some legal formulations will be shown to be answered by natural law formulations.

Next, it will be shown that the potential, the promise of the natural law is for a regime that tends towards the best outcome in light of the common good. It will become clear, however, that this is a theory cognisant of the Fall - or whatever you want to call it - recognising the flaws and perversions of the physical world and in the hearts of men, and which must also, because of this fact, protect the multiplicity of human experience precisely because chaos has entered the system and the one path is obscured. To this end the peculiar natural law conception of revolution will be introduced and analysed. It will be demonstrated to be the safeguard, the mechanism by which the potential of the new natural law for achieving justice and avoiding violence is guaranteed. Further, this section will articulate and critique the shifting notions of the legitimacy or otherwise of international institutions and survey the natural law conception of a Just War particularly when applied to situations of humanitarian intervention. It will demonstrate the potential the new natural law holds out for the establishment of global human institutions and legislative programmes that countenance and are productive of justice.

II The Question of Authority

A On the Relation of the Self to the Eternal

Any understanding of human collectivism, mobilisation and organisation of resources for a common goal and the requisite setting down of rules to achieve these ends (namely, the project of law and regulation) should be rooted in an understanding of human anthropology and eschatology. Those theories which do not allow for such a treatment risk imposing arbitrary requirements which do not merit obedience or else obscure the ultimate source of authority.[3] In full recognition and agreement with the notion that ‘legal judgements [constitute] statements and deeds…they both interpret the law and act on the world’[4] this paper engages with the peculiarly Christo-centric origins of natural law thinking.

1 The Eternal Law

Thus, the design that underlies the new natural law recognises that creation is ordered and that law is immanent in nature.[5] Law then, derives its authority from the extent to which it conforms to the eternal order. This is what Aquinas spoke of when he stated that ‘…human law has the quality of law only in so far as it proceeds according to right reason: and in this respect it is clear that it derives from the eternal law’.[6] This then is the ultimate source of law in any sense:, namely the ‘eternal law’ or the means by which the ‘whole community of the universe is governed by the divine reason’.[7] In this manner a hierarchy of meaning is established and the founding moment, the ‘mystical foundation’ of the authority of the new natural law rests, not in violence,[8] but in a metaphysical genesis born of a Christo-centric worldview.

2 The Natural Law

a Not the Law of Nature

The natural law is not the law of nature. Thus, although the new natural law is underpinned by an understanding that the nature and shape of the law may be learned from the nature and shape of the accidents of created order, the argument is far subtler. Here the natural law is not the activity of natural lawyers attempting to ‘derive ethical norms from facts’[9] but rather, in Aquinas’ elegant description the activity of ‘participation in the eternal law by rational creatures’.[10] This then is the second sense of law countenanced by the new natural law. Put simply, it is the activity of divining from the accidents of life the pattern of the eternal, without straying into the ‘naturalistic fallacy’ identified by Hume. A useful way of understanding this concept is to analogise it. Thus, the act of monitoring monkey behaviour with regard to alliances, etc to gain insights into human alliance networks, cooperation regimes and predictors/determinants of human group behaviour, or the study of the intricacies of the mathematical expression of the Fibonacci sequence would represent illicit inferences if applied to moral/legal reasoning. With regard to natural law however, it is not so much the empirical truths to be divined from observation of the natural order, but rather the bigger pattern of which the physical instantiations of the created order are pointers, that are of prime importance.

b Universality

It is in this manner that the new natural law makes its first claim to universality. For if the natural law is ‘nothing else than the participation in the eternal law by rational creatures’[11] and the ‘light of natural reason, by which we discern good from evil’[12] then all humankind operates within the same paradigm. There are no exclusions and the naturalistic fallacy remains troublingly close. It is important at this point to make it clear, at least before discussing the problems of multiplicity and free will, that at this level of abstraction the new natural law neither admits divergence of purpose nor countenances choice in human action. Thus, humankind, by virtue of being a race of ‘rational creatures’ is simultaneously possessed of the natural law and possessed by the natural law.

3 The Human Law

It is only at the third level of abstraction that the new natural law countenances human laws and legislative regimes and finally shrugs off the Humean criticism. For although the law ‘consists in part of rules which are “derived from natural law like conclusions are deduced from general principles”’[13] (the kind of observations discussed supra) for the most part they are not typically mere laws of nature but rather “‘derived from natural law like implementations [determinationes] of general directives”’.[14] It is here that one finds the multiplicity of human laws. Thus Aquinas’ mention of ‘right reason’ is euphemistic for determinatio which Finnis translates as ‘implementation’ and Kelsen as [YUN2] ‘concretizing’.[15] This is analogised by Finnis following Aquinas as like a builder putting into effect the designs of an architectural description/diagram. Finnis explicates Aquinas’ concept by reference to the notion of preconceived forms. In this manner the metaphor operates similar to the classic Platonic Theory of Forms[16] in that this door-knob, this house, this bench is the determinate instantiation of a general idea, the door-knob, etc.[17] [YUN3]

Thus, eternal law (‘NL1’) located in the sphere of the architect of the universe is productive of the natural law (‘NL2’) which is the participation of the rational elements of creation with the order of the universe which in turn gives birth via the agency of free will and choice to human law (‘NL3’) and legal regimes. Thus, in short, the system is premised upon an ‘attempt to cement the moral and legal order together with the nature of the cosmos [and] the nature of human beings’.[18]

B Whom Shall I Obey?

The new natural law immediately translates the question of authority into a discussion of obedience. Thus, there is a division of the notion of obedience into two categories. The first questions why anyone should/would consent to collectivity? The second asks which laws and indeed which legal regimes demand obedience? Both questions rest upon an understanding of the new natural law consideration of authority and touch upon the school’s peculiar notion of justice.

1 Why Should I Obey Any Human Authority?

Generally, notions of collectivism in human behaviour make reference to the scarcity of resources and the subsequent subjugation of the rights of the individual contra liberalism to those of the collective as the fundamental unit of social authority.[19] Or, they refer to the same and, contra totalitarianism; cite the ‘semi-voluntary obligation’ of the individual to respect the laws of the state from which he has agreed to benefit.[20] These are the classical totalitarian versus liberal notions of community and legal authority. The new natural law, however, does not need to make such distinctions for the human being is at once the fundamental unit of social authority and also singularly called to toil in the service of the common good.[21]

a What I Need: The Basic Goods

The new natural law understands the individual as a seeker after flourishing or Aristotelian fulfilment; a notion sometimes termed eudaimonia (‘happiness’) which is achieved by the ‘active exercise of the powers of the (virtuous) soul in conformity to reason’.[22] The individual comes to fulfilment via the seven[23] ‘basic forms of human good’[24] which Finnis describes as the ‘basic values of human existence…and thus, too, the basic principles of all practical reasoning’.[25] These he lists as ‘life…vitality…[that which]…puts a human being in good shape for self-determination’, ‘Knowledge’, ‘Play…[or]…performances which have no point beyond the performance itself’, ‘Aesthetic experience’, ‘Sociability…friendship’, ‘Practical reasonableness…being able to bring one’s own intelligence to bear effectively on the problems of choosing one’s actions and lifestyle and shaping one’s own character’, and ‘that which we…[have]…since Cicero…lamely call[ed] ‘Religion’’.[26] These goods are irreducible, self-evident and equally fundamental and they interact to create the ‘countless aspects of human self-determination and self realization’ that characterise the human condition in all its variety.[27]

b How to Get It: The Common Good

The new natural law recognises the notion of the common good. It is, however, an idea that shifts meaning across conditions. Thus, although the common good in any context is never the utilitarian formulation of the ‘greatest good for the greatest number’,[28] when considered in light of the goals of a pair of students[29] it is shown to be ‘the ensemble of conditions that would enable each to pursue his own objective’.[30] Further, within the confines of a game[31] the ‘common good for the participants [is] that there should be a good play of the game’,[32] in friendship[33] the common good is ‘identified as the self-fulfilment of each of the friends through the sharing of life and affection and activity and material goods’.[34] In this manner Finnis reaches the summit of his contextualising namely, the political community. The common good of this grouping, and the context within which all further references to the common good will be assumed to operate, is ‘the securing of a whole ensemble of material and other conditions that tend to favour the realisation, by each individual in the community, of his or her personal development’.[35]

c Because I am the State

It is in this manner that the human person - within a new natural law formulation - is perpetually addressed by the law and at the same time countenanced as a member of a community. The answer to the question, why should I obey any human authority, is therefore answered thus; because the human person is the subject and the object of the common good and aligning one’s interests with those of the state cognisant of new natural law principles is the only rational activity open. The only rational option precisely because the common wealth or state exists only to maximise the pursuit of the flourishing of each individual constituent. There is no state without the individuals it serves. For a new natural lawyer, there would be no point to a state that fails to countenance the individual, an idea that will be dealt with shortly.

d Neither Novel nor Trivial

The notion that humankind is best served by combining resources and designs on the common purpose of attaining members’ flourishing[36] has seen expression in particular manifestations throughout history. The most obvious and successful of which is the Republic of the United States of America. Thus Thomas Jefferson could write that the Declaration of Independence[37] was not set on ‘new principles, or new arguments…but [intended merely] to place before mankind the common sense of the subject’.[38] Further, in Zuckert’s useful matrix,[39] we see a reflection of the tripartite system of legal derivation enunciated above, hence: ‘that all men are created equal...they are endowed by the Creator with certain inalienable rights’[40] fits the ‘pre-political’[41] status of the natural law category supra at IIA 2a, similarly ‘Governments are instituted among Men, deriving their powers from the consent of the governed’[42] is Zuckert’s ‘political’ or the new natural law’s ‘human laws’ category and finally the cautionary statement that ‘whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it’[43] foreshadows the revolutionary nature of the new natural law to be discussed in the following sections. Indeed the Declaration of Independence deliberately invokes the natural law notion that the state shall be ‘found[ed] on such principles and organiz[e] its powers in such form, as to them…[appear to] most…effect their Safety and Happiness’[44] where ‘them’ are merely the individuals for whom the state is constituted.

Thus, it is in this manner that the new natural law subverts the classical distinctions of liberal versus totalitarian and in the same action subsumes the whole into its wider paradigm of authority. For the human person in the new natural law is simultaneously heir to the fruits of human happiness and bound to operate within the human family for the common good of all. The question regarding why anyone would be convinced to obey any human authority has been answered: it is in his best interest.

* This paper was produced as a Melbourne Law School advanced legal research project. I would like to thank Dr Peter Rush who was an erudite and provocative supervisor. Thanks are also due to Dr Samuel Gregg Director of the Centre for Economic Personalism at the Acton Institute for helpful guidance during the early stages and to Justice Michael Kirby and George Cardinal Pell who read the paper and provided valuable feedback.

YUN Notes added by Professor John Finnis, University College Oxford.

[1] Augustine of Hippo, De libero arbitrio I, v cited in Thomas Aquinas, ‘Summa Theologica’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 136-7.
[2] Thomas Aquinas, ‘Summa Theologica: Utrum omnis lex a lege aeterna derivetur’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 120-1.
[3] See, for instance, the discussions of Critical Legal Theorists, particularly Lucinda M. Finley, ‘Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning’ (1989) 64 Notre Dame Law Review 886, for feminist perspectives.
[4] Costas Douzinas and Ronnie Warrington, ‘A Well-Founded Fear of the Other’ in Justice Miscarried (1999) 211.
[5] The full quotation is deriving from an ‘a normative order immanent in nature’, see generally Lloyd L. Weintreb, Natural Law and Justice (1987) 15.
[6] Thomas Aquinas, ‘Summa Theologica: Utrum omnis lex a lege aeterna derivetur’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 120-1.
[7] Thomas Aquinas, ‘Summa Theologica: Utrum sit aliqua lex aeterna’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 113.
[8] Cf Jacques Derrida, ‘Force of Law: The Mystical Foundation of Authority’ in Acts of Religion Gil Anidjar Ed. (2002), 238.
[9] Julius Stone, Human Law and Human Justice (1968) 212.
[10] Thomas Aquinas, ‘Summa Theologica: Utrum omnis lex a lege aeterna derivetur’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 115.
[11] Thomas Aquinas, ‘Summa Theologica: Utrum omnis lex a lege aeterna derivetur’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 115.
[12] Thomas Aquinas, ‘Summa Theologica: Utrum omnis lex a lege aeterna derivetur’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 115.
[13] Thomas Aquinas, ‘Summa Theologica, I – II, q. 95, a. 2c. cited in John Finnis, Natural Law and Natural Rights (1980) 284.
[14] Thomas Aquinas, ‘Summa Theologica, I – II, q. 95, a. 2c. cited in John Finnis, Natural Law and Natural Rights (1980) 284.
[15] John Finnis, Natural Law and Natural Rights (1980) f284.
[16] Plato, The Republic Trans. Desmond Lee (1987) 362.
[17] John Finnis, Natural Law and Natural Rights (1980) 284.
[18] Simon Blackburn, The Oxford Dictionary of Philosophy (1996) 256.
[19] Simon Blackburn, The Oxford Dictionary of Philosophy (1996) 68.
[20] This is a very loose rendering of the logic of Joseph Raz, ‘The Obligation to Obey: Revision and Tradition’ in John Finnis (Ed.), Natural Law Volume II (1991) 139.
[21] See for instance Neil MacCormick, ‘Natural Law and the Separation of Law and Morals’ in Robert P. George (Ed.), Natural Law Theory: Contemporary Essays (1992) 105-10. Especially on ‘the essential moral aspiration of law-giving’.
[22] Simon Blackburn, ‘Eudaimonia’ in The Oxford Dictionary of Philosophy (1996) 127.
[23] Although Finnis admits this may not be exhaustive.
[24] John Finnis, Natural Law and Natural Rights (1980) 85.
[25] John Finnis, Natural Law and Natural Rights (1980) 60.
[26] John Finnis, Natural Law and Natural Rights (1980) 86-9.
[27] This borrows heavily from an earlier paper see John Heard, The Requirements of ‘Practical Reasonableness’ and the Plurality of Human Experience: The Natural Law in Unlikely Places (2002) 7.
[28] This is because the new natural law school finds utilitarian concepts ‘outside a limited technical context…not merely practically unworkable but intrinsically incoherent and senseless’ see John Finnis, Natural Law and Natural Rights (1980) 111-18 and 154.
[29] John Finnis, Natural Law and Natural Rights (1980) 139.
[30] John Finnis, Natural Law and Natural Rights (1980) 154.
[31] See Finnis’ example in John Finnis, Natural Law and Natural Rights (1980) 139.
[32] John Finnis, Natural Law and Natural Rights (1980) 154.
[33] John Finnis, Natural Law and Natural Rights (1980) 141-2.
[34] John Finnis, Natural Law and Natural Rights (1980) 154.
[35] John Finnis, Natural Law and Natural Rights (1980) 154.
[36] Especially when this notion is termed ‘happiness’.
[37] The Declaration of Independence of the Thirteen Colonies In Congress, (July 4, 1776) http://www.archives.gov/national_archives_experience/declaration.html
[38] Thomas Jefferson, Writings: Letter to Henry Lee, May 8 (1825) 1501, in Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (1996) 1.
[39] Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (1996) 18-9.
[40] The Declaration of Independence of the Thirteen Colonies In Congress, (July 4, 1776) http://www.archives.gov/national_archives_experience/declaration.html
[41] The phrasing is Zuckert’s, see Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (1996) 18.
[42] The Declaration of Independence of the Thirteen Colonies In Congress, (July 4, 1776) http://www.archives.gov/national_archives_experience/declaration.html
[43] The Declaration of Independence of the Thirteen Colonies In Congress, (July 4, 1776) http://www.archives.gov/national_archives_experience/declaration.html
[44] The Declaration of Independence of the Thirteen Colonies In Congress, (July 4, 1776) http://www.archives.gov/national_archives_experience/declaration.html

[YUN1]A very regrettable label, first fixed on us [Grisez and me] by bitter enemies, and never used by me: I say “new classical theory [of natural law]” The word “theory” is particularly important in the label, for the reasons explained in NLNR 24-5.

[YUN2]no, K is not translating! I’m adop-ting his word as one of my translations.

[YUN3]I don’t and wouldn’t say Platonic. Aristotle and Aquinas rightly think that Plato’s theory of forms is a blunder.

DREADTHESIS: THE NEW NATURAL LAW AND THE TRANQUILLITAS ORDINIS

III Justice

A Which Regimes Merit Obedience?

Discussion moves now to the second question, which regimes merit obedience? For the new natural law school only those regimes which, in accordance with Aquinas’ formulation, are productive of law.

1 What is Law?

The new natural law answer to any question regarding the nature of law has both a short and a long formulation. In short, a law is simply that which meets the requirements of practical reason.[1] The longer conception runs thus,[2]

…rules made, in accordance with regulative legal rules, by a determinate and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a ‘complete’ community, and buttressed by sanctions in accordance with rule-guided stipulations of adjudicative institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the community’s co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community, according to a manner and form itself adapted to that common good by features of specificity, minimization of arbitrariness, and maintenance of a quality of reciprocity between the subjects of the law both amongst themselves and in their relations with the lawful authorities.

As is generally the case in jurisprudence, the simpler confection is the most interesting and indeed better able to convey the peculiarly new natural law conception of law.

a The Requirements of Practical Reason

The definition of law is bound up within an understanding of the requirements of practical reason. To some extent this has already been explained without the use of proper names. For the basic goods and the common good discussed above underpin the requirements of practical reason. Practical reason is merely acting out of ‘practical reasonableness’[3] namely, deciding ‘What is to be done? What may be left undone? What is not to be done?’[4] with regard to one’s pursuit of the basic goods within the operative paradigm of the common good. Put simply, practical reason demonstrates the modes in which one might move towards human flourishing. Thus, a law is precisely that which leaves room for the pursuit of happiness.

b What is Just?

But the notion is subtler. For there is the extraordinary claim made by the new natural law whereby that which is termed a law is simultaneously and fundamentally also that which is just. Thus, law and justice are permanently twinned. It only makes sense in the new natural law to speak of an action as legal and just, it only makes sense to say that a person is both ‘within his rights’ and ‘within justice’.[5] Not for the new natural law the separation of law and morality that characterises the liberal legal tradition.[6]

Further, Finnis defines ‘justice’ in a broad tripartite formulation that reveals the extent to which moral realism underpins the new natural law conception of law-as-justice. Finnis deliberately points out that this is an expansion of the notion of justice in comparison with contemporary jurisprudential accounts. He speaks of bringing justice back to an Aristotelian formulation, demonstrating how far the new natural law is from positivism.[7] Thus, ‘justice’ is constituted of three elements: ‘other-directedness’, ‘duty’ and ‘equality’.[8] This first dictates that to do ‘justice’ one must be engaged in ‘relations’ and ‘dealings with other persons’ and must be involved in the ‘inter-subjective’ and the ‘inter-personal’.[9] The second element demands that one must have regard to ‘debitum’ to ‘what is owed…or due to another…and correspondingly, what that other has a right to’.[10] Finnis elaborates by stating that this second element locates ‘justice’ in ‘only those relations and dealings which are necessary or appropriate for the avoiding of a wrong’.[11] The third element is best described, Finnis writes, as ‘proportionality, being the equality of ratios…or even…equilibrium’.[12] Thus, ‘justice’ is the sum of the three parts[YUN1] of ‘other-directedness’, ‘duty’ and ‘equality’.[13]

c Is this Just?

It is in this manner that one comes to an understanding of the justness or otherwise, the lawlike-ness of a particular activity or dictate. For just as ‘the requirements of justice…are the concrete implications of the basic requirement of practical reasonableness’ which demand ‘that one is to favour and foster the common good of one’s community’[14] a judgement shall be deemed to be ‘just’ if it is informed and shaped by action to conform the particular situation to the dictates of the natural law, namely by fostering the common good. This is where Aquinas’ formulation finally comes to bear. For the assertion that a ‘human law has the quality of law only in so far as it proceeds according to right reason’[15] can be seen to operate within the framework articulated above. Therefore, by identifying the requirements of practical reasonableness as building towards the common good, one identifies what is just and by extension, that which is law.

2 How to Recognise Authority

There is another sense in which authority is treated under the new natural law, namely to designate a person, institution or collective in which decision making power is deposited.

a The Problems of Co-Ordination

The new natural law recognises that due to the variety of human desires there arise the problems of co-ordination. Thus, Finnis writes of situations in which there are ‘two or more available, reasonable, and appropriate solutions’ that satisfy the demands of practical reasonableness but ‘none of which…would amount to a solution unless adopted to the exclusion of the other solutions available, reasonable, and appropriate for that problem’.[16] After lengthy reductive reasoning Finnis’ logic divines that ‘there are, in the final analysis, only two ways of making a choice between alternative ways of co-ordinating action to the…common good of any group’.[17] Further, ‘unanimity…cannot in practice be achieved in any community with a complex common good and an intelligent and interested membership’[18] and ‘unanimity is particularly far beyond…possibility in the political community’ because of the conflicting claims made by a mass of intelligent humanity ‘which…excludes no aspect of individual well-being and is potentially affected by every aspect of every life-plan’.[19] Hence, the sheer variety of human needs makes the task of collectivity seemingly impossible.

b Long to Reign Over Us

The problem of co-ordination is neatly surmounted, however, by uniting the various converging and potentially conflicting needs of the membership beneath a co-ordinating authority. To this end, the community constitutes itself in the manner mentioned above,[20] as a political body under a temporal authority[21] charged with the task of overseeing ‘this concern of particular persons and groups for individual goods, for particular common goods and for particular aspects of the over-all common good’ such that it will ‘enhance the over-all common good’ by subjecting the ‘particular options…to some degree of co-ordination’.[22] It is in this manner that the concerns of the individual, ever to the front of the new natural lawyer’s mind, come to be served by the project of collectivity, namely by sacrificing some autonomy now the individual contributes to the building up of the common good going-forward. The function of the state is thus prescribed and the second question answered. Those regimes which demand obedience are merely those which are constituted for and productive of the common good. From what has gone before we also know that this means that such regimes produce law. This last it has been shown is always taken to mean justice. Thus, as long as a regime operates for the sake of the common good, produces laws that carry the essence of practical reasonableness, namely justice, it merits obedience.

[1] John Finnis, Natural Law and Natural Rights (1980) 277.
[2] John Finnis, Natural Law and Natural Rights (1980) 276-7.
[3] John Finnis, Natural Law and Natural Rights (1980) 100.
[4] John Finnis, Natural Law and Natural Rights (1980) 100.
[5] This answers directly the question asked by Jacques Derrida, ‘Force of Law: The Mystical Foundation of Authority’ in Acts of Religion Gil Anidjar Ed. (2002), 245.
[6] Sam Garkawe, ‘Admission Rules’ (1996) 21 Alternative Law Journal 3, 194.
[7] John Finnis, Natural Law and Natural Rights (1980) 161.
[8] John Finnis, Natural Law and Natural Rights (1980) 161.
[9] John Finnis, Natural Law and Natural Rights (1980) 161.
[10] John Finnis, Natural Law and Natural Rights (1980) 162.
[11] John Finnis, Natural Law and Natural Rights (1980) 162.
[12] John Finnis, Natural Law and Natural Rights (1980) 163.
[13] Some of these concepts were discussed in greater depth in an early paper cf John Heard, The Requirements of ‘Practical Reasonableness’ and the Plurality of Human Experience: The Natural Law in Unlikely Places (2002), 7.
[14] John Finnis, Natural Law and Natural Rights (1980) 164.
[15] Thomas Aquinas, ‘Summa Theologica: Utrum omnis lex a lege aeterna derivetur’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 120-1.
[16] John Finnis, Natural Law and Natural Rights (1980) 232.
[17] John Finnis, Natural Law and Natural Rights (1980) 232.
[18] There is no space here to discuss the other possibilities that Finnis excludes, or to analyse his logic, suffice it to say that the author concurs with Finnis on this point, cf John Finnis, Natural Law and Natural Rights (1980) 232-3.
[19] John Finnis, Natural Law and Natural Rights (1980) 233.
[20] The Declaration is particularly clear and eloquent on the subject, supra.
[21] In the second sense of the term.
[22] John Finnis, Natural Law and Natural Rights (1980) 233.

[YUN1]No

DREADTHESIS: THE NEW NATURAL LAW AND THE TRANQUILLITAS ORDINIS

IV Revolutionary

Discussion turns now to treat with those situations where a regime once did, but can no longer be said to, merit obedience. It is at this stage that the new natural law can be seen to admit of revolution. This concept shall be analysed by way of a quick survey of the promise held out by the new natural law for the protection of the multiplicity of human experience.

A Omnia Omnibus

1 Freeing the People for Freedom

The new natural law recognises and protects the multiplicity of human experience. To this end the new natural law is not a rigid regime of confinement rather a programme for intrapersonal and interpersonal liberty. Whatever the later permutations undergone by the American democratic model, its foundation supports this thesis.[1] For if the law is merely the expression of ‘practical reasonableness in relation to the good of human beings who, because they live in community with one another, are confronted with problems of justice and rights’[2] then authority and the legal order - cognisant of because rooted in the nature of the human person and informed by the concept of human flourishing - cannot but guarantee and protect human rights.

2 Universality, Again: Whom the Law Addresses

This idea is borne out by example. Some feminists claim that law is a product of the tendency for men to ‘describe [the world] from their own point of view’ which they then confuse with the ‘absolute truth’.[3] Put simply, the assertion is that men make law for men and then impose it on women. Abstracted, it becomes obvious that the feminists believe the genres[4] ‘male’ and ‘female’ to be radically dissimilar, productive of different kinds of law[5] and representing conflicting views of the nature of human sexuality and its end. Irigaray terms this the ‘confusion of genre with species’[6] and decries that ‘genre becomes the human race [le genre humain], human nature…as defined within patriarchal culture’.[7] Even though at its source, the criticism runs, the law is patriarchal, it attempts to mask its origins in universalising language. Thus, a feminist critique of the law describes a gap between whom the law speaks for and whom it speaks to.

3 The Singular Unifying Truth of the Natural Law: Humanity under Deity

It is clear, however, that such a criticism, while potentially suited[8] to positivist understandings, cannot long trouble the natural lawyer’s consideration. For, the new natural law is concerned with morality and ‘morality has an essential connection with Christian theology’ and further ‘civil legislation is a prerogative of the state’[9] which can only be called as much because it is by definition a human institution.[YUN1] Hence, the Christo-centrism of the theory, stated at the outset, is once more asserted. There is no hidden origin, no founding myth and no ‘abandonment of its religious character’.[10]

4 The Order within Orders

The new natural law countenances the multiplicity of human experience and ensures a variety of legal regimes. Indeed, Finnis demonstrates the expanse of the inclusive parameters of the new natural law with an elaborate case for the new natural law under the Deity (“D”) that may be acceptable even to Pagans or Atheists. He asks scholars not to misunderstand the notion of the eternal law as ‘a theory which could guide investigation and verification of suggested norms’[11] as the entire system ‘must not be imagined as some single model of “law” or “norm”’[12] as one might imagine the ‘classical and statistical laws of physics’.[13] This is because the ‘unchanging principles’ from which human laws are derived ‘have their force from their reasonableness, not from any originating acts[14] or circumstances’.[15] Hence, the new natural law not only promises human flourishing, but it recognises that the ‘speculation that the norms intelligible to us’ (i.e. the order of the universe and the derivation of human laws from eternal truths) ‘are expressions of D’s creative plan in no way warrants the further speculation that D’s creative plan is understood by us’.[16] In this manner the new natural law must allow for as many legislative regimes, systems of government, and ways of uniting in community to achieve the common good as there are human beings with reason to bring to bear on the questions of collectivity.

5 Category Mistake

For practical reasonableness - and as a corollary the new natural law - requires the maintenance of the magnificent variety of human legal systems. The new natural law, rather than acting to restrict diversity, instead affirms our varied yet common experience of the human condition and the divergent paths we choose to pursue the common good. Because natural law rests upon the necessary inseparability of what is ‘just’ from what is ‘right’ or ‘good’, cultural-legal imperialism or the feminists’ patriarchal biases are rendered meaningless[17] by category mistake.[18] One might claim this law or this legal system is patriarchal, but one cannot claim the natural law, as defined supra, as being so tainted. Put simply, such criticisms merely show up the failures of particular legislative projects and are not fatal to the system of natural law per se. Thus, there is room in such a formulation for Irigaray’s ‘sexuate rights’ and the recognition that ‘women and men are not equal…and the equality strategy,[19] when it exists, should always aim at the recognition of difference’[20] but it is at the NL3 level. Similarly, a failure to recognise the ongoing value of indigenous peoples’ legal systems and their processes as a way in which one could achieve the common good is necessarily prohibited. In this manner, therefore, the ‘new’ natural law encourages and affirms difference, engages with and projects a variety of legal systems and ensures diversity in legal practice and definitions of personhood.

One is thus able to reduce the new natural law’s formulation by stating that the only justice is being truly human. Further, the natural law prohibition against singular path-making and totalitarian conceptions can be brought forward as yet further proof of the manner in which justice is at the beginning, middle and end of natural law making, purely because the human person and human experience is present in these places. This further demonstrates that by employing the new natural law formulation one gets a closed system cognisant of and indeed inherently productive of human rights.

B What is Not Law?

Precisely as justice is the answer to the obedience question and the dialect within which the promise of the new natural law is made to the heirs of human freedom,[21] revolution is the tool by which oppressive and unjust formulations that contravene the requirements of the common good are remedied. This notion shall be divided to treat first with the subordinate nature of the claim over/against the wider claims of the new natural law in total and then to present the formula in all the surprising muscle of Augustine’s and Aquinas’ exhortations.

1 Trying Not to Scare the Dead White Men

In a peculiar sense, this revolutionary claim is merely a corollary of the rest of the claims of the new natural law. Thus, characterisations like Finnis’ which insist that the revolutionary nature of natural law is a ‘subordinate concern of natural law theory’[22] need to be contextualised. In the sense that they are a part and not even the ‘principal concern of a theory of natural law’[23] Finnis is correct, otherwise the preceding passages would have been a somewhat eloquent, but totally futile exercise in jurisprudential fraud. Unlike some theories,[24] the new natural law is predominantly about the business of positing how and why laws are made, legal regimes acquire authority, individuals would submit to institutions, etc. Further, ‘the principal jurisprudential concern of a theory of natural law is to identify the principles and limits of the Rule of Law, and to trace the ways in which sound laws, in all their positivity and mutability, are to be derived[25] from unchanging principles’.[26] It is in this sense then that the claim can be seen to be subordinate to the wider claims of the new natural law.

2 Not Law

The new natural law still claims, however, that ‘unjust laws are not law’.[27] This stunning, and potentially superfluous[YUN2] statement requires further development from its treatment in the opening passages of this paper. The fact that it follows so naturally from the claims made in the rest of the paper (for it follows modus tollendo ponens that where justice-is-law and injustice-is-not-law, then if injustice, therefore not-law) potentially masks the explosive role the statement plays as perhaps the most terrifying[28] idea within the natural law pantheon. Even after jurisprudes swallow their dislike for the prima facie vulnerability of natural law conceptions to the ‘naturalistic fallacy’,[29] they are troubled by the claim that a law can be rendered impotent by virtue of an evaluation of its moral content. This is, however, exactly what the new natural law teaches.

C Not-Law in Depth

Fundamentally, injustice in law involves an unjust exercise of authority.[30]

1 The Names of Cruelty

Finnis catalogues a number of ways in which authority may be exceeded and the moral requirement to obey extinguished.

a Intention: Against the Common Good

A law made contra the common good is not law. Thus, ‘since authority is derived solely from the needs of the common good, a ruler’s use of authority is radically defective is he exploits his opportunities by making stipulations’[31] that are intended to contravene or subvert the common good for ‘his own or his friends’ or party’s or faction’s advantage, or out of malice against some person or group’.[32] The force of this prohibition is made more startling when it is recognised that Finnis’ claim is fully cognisant of the fact that ‘most legal systems do not permit the exercise of “constitutional” powers to be challenged on the ground that exercise was improperly motivated’[33] and names such conventions merely ‘pragmatic considerations or…a principle of the separation of powers’ which ‘have no application to the reasonable man assessing the claims of authority upon him’.[34] Therefore, contravening the common good does not result in the promulgation of law.

b Author: Straying into Injustice

Law made in excess of one’s vested authority is not law. In this manner, ‘an ultra vires act is an abuse of power and an injustice to those treated as subject to it’.[35] This is because such ultra vires official acts ‘will usually subject persons to effects which cannot afterwards be undone; and the bringing about of…such effects is an abuse of power and an unjust imposition’[36] precisely because the official improperly reaches for an excess of power and imposes this upon others. Put simply, the injustice resides in the displacement of the human person and regard for the common good from the focal point of law-making whereby the exercise of authority and the subjugation of others becomes the end, not the means of the legal project. Under a new natural law formulation such activities cannot but be termed injustice.

c Form: Jobs for the Boys

Ignoring the manner-and-form provisions and procedures of the law as promulgated is not productive of law. Thus, one cannot apply one set of conditions when dealing with one individual and arbitrarily waive or conversely increase the severity of said conditions when dealing with another individual. Unless ‘those involved consent, or ought to consent, to an accelerated procedure in order to cut out “red tape” which in the circumstances would prejudice substantial justice’[37] the set procedure should always be adhered to. An example of the sense of injustice that is evinced prima facie by such an action would be the fictional operation at a large city law firm of one system of recruitment and hiring for law graduates that is suddenly abandoned based purely on the physical attractiveness of the candidate currently presenting. Thus, jettisoning manner-and-form procedures in the making of the decisions that constitute law is not properly law, but rather injustice-making.

d Substance: Missing the Point

Although correct in intention, legitimately authored and properly promulgated a law may still fail to attract a new natural law characterisation as law. Finnis asserts that this occurs as either a distributive or a commutative injustice.[38] Thus, such a diktat might ‘appropriate some aspect of the common stock, or some benefit of common life or enterprise, to a class not reasonably entitled to it…while denying it to others’,[39] or it might impose ‘on some a burden from which others are, on no just criterion, exempt’.[40] In this first category would fall most of those laws which characterise oligarchy and totalitarianism, particularly totalitarianism informed by racial theory. Thus, for instance, the Nazi Declaration ‘committed its members to an anti-Semitic program [and] declared that no Jew or any person of non-German blood could be a member of the nation’.[41] In this manner certain persons were, based on an unjust citizenship regulation ‘to be disfranchised, disqualified for office, subject to the alien laws, and entitled to nourishment only after the German population had first been provided for’.[42] Further, the diktat might be unjust by ‘denying to one, some, or everyone an absolute human right’[43] and thereby subverting their status as humans. Such actions are illicit in the new natural law and regimes like the Nazi Party, or tyrants such as Saddam Hussein who attempted to eliminate the Kurds and thereby violate their fundamental human right to life, can be said neither to hold legitimate authority nor have their actions or decrees considered binding as lawful.

e Why the United Nations is a Crime against Humanity

Further, these ideas are best enunciated by reference to an example, namely the manner in which the United Nations (“UN”) can be said to operate unjustly. For the UN, as currently constituted,[44] violates each of the categories of intent, author and substance. Thus, being populated as it is with improperly constituted States,[45] whenever such states vote and those votes assist or determine the outcome of any UN instrument or decree, the organisation has exceeded authority in the new natural law sense of intent and the resultant law is an injustice. In this manner, actions like the General Assembly vote[46] that condemned the Israeli protection barrier without condemning international terrorism (i.e. not for any good reason) but merely to ‘contravene the common good to the advantage of the authority’s friends and the detriment of others’[47][YUN3] can be seen to be clearly unjust under the first classification. Further, allowing a body such as the Security Council to decide matters for nations not represented on the Council or which have not submitted to its jurisdiction must also fall under the injustice designated by Finnis as one of ultra vires official acts.[48] Finally, the UN is substantially unjust in that it recognises the ‘right’ of ‘everyone’ to an holiday,[49] but fails to recognise fully the fundamental human right to life.[50] In this way it contravenes the substantial requirements of justice by denying to the unborn an absolute human right,[51] thereby subverting their status as humans.

3 A Charge to Keep: A Troubling Tendency

This assertion that ‘unjust laws are not law’ is the guarantor of the promises of the new natural law and must not be diluted. Its seriousness is here highlighted by reference to notorious criminal regimes that militated against the human family and the controversial because deeply important issues of warfare and abortion. Further, the centrality of this concept to the theory as a whole can be seen in the fact that it has remained unchanged from Augustine, through Aquinas and it remains important in Finnis’ formulation.[52] This places the theory at radical odds with extremist instrumentalist/positivist claims that would recognise the legitimacy of, for example, Nazi laws even though ‘the Party was not organized to take over power in the German State by winning support of a majority of the German people; it was organized to seize power in defiance of the will of the people’.[53] Thus, the ancient claim that ‘lex iniusta non est lex’ positions the natural lawyer in a manner that is perhaps peculiar to the school. The new natural law cannot abide the unjust exercise of authority and claims to the contrary, or attempts to attenuate this fact, no matter what their intention, are problematic for the theory.

Therefore, because of the singular moment whereby law-as-justice survives translation and becomes expressed by temporal institutions and legal instruments,[54] the new natural law does indeed dictate how one is to cope with tyrants and describes the ‘effect of unjust exercises of authority upon our responsibilities as reasonable persons’[55] for the liberation or continued flourishing of the human family.

D What to Do with the Tyrant?

Put simply, once it is determined that a law is not law, but rather an injustice, it is characterised in the new natural law as ‘more like a violence’ and no longer merits obedience. This is the final sense in which revolution enters the system here articulated. This notion shall be treated under two forms, namely what obligations survive the characterisation of law as not-law? And what does such identification mean for the question of authority understood as obedience? The issues are related and the discussion shall merge.

1 The Modalities of Injustice

The new natural law means something very peculiar when it designates something as unjust or not-law. Thus, Finnis divides the notion of obligation into three classes:

‘either (i) empirical liability to be subjected to sanction in event of non-compliance; or (ii)’ what Raz has termed the contention that ‘the state will not be able to function if its citizens are not obligated to obey it laws and respect that obligation for the most part’;[56] or ‘(iii) legal obligation in the moral sense’;[57] or ‘(iv) moral obligation deriving not from the legality of the stipulation-of-obligation but from, some “collateral” source’.[58]

the most interesting of which is the latter, but all of which shall be treated herein.

a Fear of Sanction, Working Rules, The Rule of Working Rules, Collateral Damage

Although perhaps exonerated by other requirements, to be dealt with shortly, conscientious objectors are still subject to sanction, obligation in the form of working rules and a moral obligation that attaches to the nature of legal regimes per se. The natural law, at least as formulated by Finnis, attempts to be a sound jurisprudential method and as such can answer pragmatically that as a Jew one is still likely to be killed according to Nazi laws and that as an Australian citizen one is legally bound to abide by the laws of the state regardless of one’s opinion of them. Indeed, one may perhaps have a moral obligation to abide by such laws to maintain the intra-systemic coherence of the legal regime which must needs demand full obedience because it is ‘by and large just’,[59] or finally that which Finnis indicated when speaking of the ‘moral obligation…derive[ed] from some “collateral” source’.[60] Namely, that being seen to disregard a particular law weakens the adherence of the general population to laws in general, thereby thwarting the common good and shirking a moral requirement to obey a generally desirable ruler or constitution.[61] It is in this manner that the new natural law, responsibly, recognises that one can still be considered to be in some sense obligated even after one decides that a particular law is not-law by new natural law standards.

b The Meat

This is, however, not the end of the story. Whereas positivist[62] or other conceptions might appear to leave the Kurds with no comfortable option, or force some jurisprudes to stare into the mess of Auschwitz and declare the whole putrid stain ‘legal’ without leaving any room for jurisprudential condemnation, not so the new natural law. Thus, while recognising that ‘the good citizen may (not always) be morally required to conform to [an unjust] stipulation to…avoid weakening “the law”, the legal system…as a whole’[63] the new natural law states unambiguously that ‘the ruler still has the responsibility of repealing rather than enforcing his unjust law, and in this sense has no right that it should be conformed to’.[64] Further, the new natural law countenances situations in which ‘it may be for the common good to replace a persistently unjust lawmaker, by means that are prohibited by laws of a type normally justified both in their enactment and in their application’.[65] Put simply, one may remove the tyrant by use of ‘public disobedience’ or some other ‘instrument for effecting reform of unjust laws’.[66] For whenever a properly constituted state works against the common good it loses all claim to obedience and its authority is depleted, or in the words of the Declaration of Independence ‘whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it’.[67] Here, finally, we come to the most explosive segment of the new natural law and also the means by which its extraordinary promise is guaranteed.

Thus, while some obligations remain, the new natural law clearly establishes revolution as a means by which injustice is to be remedied. The trigger is the point at which vested authority militates against the common good.

[1] Once more, Zuckert is enlightening on this topic, see for instance the discussion at Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (1996) 83.
[2] John Finnis, Natural Law and Natural Rights (1980) 83.
[3] Simone de Beauvoir, The Second Sex cited in Margaret Davies, Asking the Law Question (1994) 167.
[4] Luce Irigaray, ‘The Necessity for Sexuate Rights’ in Margaret Whitford (Ed.), The Irigaray Reader (1991) 198.
[5] Irigaray lists ‘natural, civil, penal and religious rights’ as among those things falling under legal regulation, see Luce Irigaray, ‘The Necessity for Sexuate Rights’ in Margaret Whitford (Ed.), The Irigaray Reader (1991) 198.
[6] Luce Irigaray, ‘The Necessity for Sexuate Rights’ in Margaret Whitford (Ed.), The Irigaray Reader (1991) 201.
[7] Luce Irigaray, ‘The Necessity for Sexuate Rights’ in Margaret Whitford (Ed.), The Irigaray Reader (1991) 201.
[8] There is no space here to evaluate feminist claims over/against positivist constructions.
[9] Norman Kretzmann, ‘Lex Iniusta Non Est Lex: Laws on Trial in Aquinas’ Court of Conscience’ in John Finnis (Ed.), Natural Law Volume II (1991) 99.
[10] Religious in the sense of derivation, not in the sense that the new natural law would establish a theocracy, see Luce Irigaray, ‘The Necessity for Sexuate Rights’ in Margaret Whitford (Ed.), The Irigaray Reader (1991) 200 for the exact quotation.
[11] John Finnis, Natural Law and Natural Rights (1980) 390.
[12] John Finnis, Natural Law and Natural Rights (1980) 390.
[13] John Finnis, Natural Law and Natural Rights (1980) 390.
[14] Contra Positivism.
[15] John Finnis, Natural Law and Natural Rights (1980) 351.
[16] John Finnis, Natural Law and Natural Rights (1980) 390.
[17] Because operating upon an assumption, namely the positivist separation of law and morality, that does not apply here, see Neil MacCormick, ‘Natural Law and the Separation of Law and Morals’ in Robert P. George (Ed.), Natural Law Theory: Contemporary Essays (1992) 105-121.
[18] The notion, popularised by Gilbert Ryle, that applying the rules and conventions of one kind of object to another, differently categorised object, results in illicit conclusions. Simon Blackburn, The Oxford Dictionary of Philosophy (1996) 58.
[19] This applies with the same force to the ‘equality’ component of Finnis’ conditions of ‘justice’, see discussion supra.
[20] Luce Irigaray, ‘How to Define Sexuate Rights?’ in M. Whitford (ed) The Irigaray Reader (1991) 206.
[21] By definition the whole human family.
[22] John Finnis, Natural Law and Natural Rights (1980) 351.
[23] John Finnis, Natural Law and Natural Rights (1980) 351, italics are mine.
[24] The example of Stalinism with its concern to tear down rather than build up institutions, labour paradigms and personal reputations immediately spings to mind.
[25] Finnis notes, ‘not usually deduced’ see the discussion on the ‘naturalistic fallacy, supra and John Finnis, Natural Law and Natural Rights (1980) 351.
[26] John Finnis, Natural Law and Natural Rights (1980) 351.
[27] John Finnis, Natural Law and Natural Rights (1980) 351.
[28] At least to opposing jurisprudes and tyrants.
[29] Which have been here, and elsewhere, debunked, see John Finnis, Natural Law and Natural Rights (1980) 284.
[30] John Finnis, Natural Law and Natural Rights (1980) 351.
[31] John Finnis, Natural Law and Natural Rights (1980) 352.
[32] John Finnis, Natural Law and Natural Rights (1980) 352.
[33] John Finnis, Natural Law and Natural Rights (1980) 352.
[34] John Finnis, Natural Law and Natural Rights (1980) 352.
[35] John Finnis, Natural Law and Natural Rights (1980) 352.
[36] John Finnis, Natural Law and Natural Rights (1980) 353.
[37] John Finnis, Natural Law and Natural Rights (1980) 353.
[38] John Finnis, Natural Law and Natural Rights (1980) 353.
[39] John Finnis, Natural Law and Natural Rights (1980) 353.
[40] John Finnis, Natural Law and Natural Rights (1980) 353.
[41] Jackson, J, ‘Opening Address’ in Nuremburg Trial Proceedings: Volume II (Morning Session, Second Day, 21 November, 1945) 105.
[42] Jackson, J, ‘Opening Address’ in Nuremburg Trial Proceedings: Volume II (Morning Session, Second Day, 21 November, 1945) 105.
[43] John Finnis, Natural Law and Natural Rights (1980) 353.
[44] Charter of the United Nations cited in D. J. Harris, Cases and Materials on International Law (2002) 1048.
[45] Recognising that a properly constituted State need not be a democracy, but neither can it, by definition be a dictatorship or other totalitarian regime, consider for instance, Iraq before the fall of Saddam Hussein, Libya under Qaddafi, various nations under Stalinist Communism particularly Cuba and North Korea and the discussion, supra at IIB1.
[46] General Assembly Resolution A/RES/58/3 Enhancing capacity-building in global public health.
[47] Friends being Islamo-fascists and others being the State of Israel, see John Finnis, Natural Law and Natural Rights (1980) 353.
[48] The recently repealed legislation in Belgium with regard to ‘universal competence’ is another example of this troubling trend in international relations.
[49] Article 24, Universal Declaration of Human Rights (1948) cited in D. J. Harris, Cases and Materials on International Law (2002) 634.
[50] Article3, Universal Declaration of Human Rights (1948) cited in D. J. Harris, Cases and Materials on International Law (2002) 634 apparently does not apply to the unborn.
[51] John Finnis, Natural Law and Natural Rights (1980) 353.
[52] John Finnis, Natural Law and Natural Rights (1980) 351-68.
[53] Jackson, J, ‘Opening Address’ in Nuremburg Trial Proceedings: Volume II (Morning Session, Second Day, 21 November, 1945) 106.
[54] Cf Costas Douzinas and Ronnie Warrington, ‘A Well-Founded Fear of the Other’ in Justice Miscarried (1999) 211.
[55] John Finnis, Natural Law and Natural Rights (1980) 351.
[56] Joseph Raz, ‘The Obligation to Obey: Revision and Tradition’ in John Finnis (Ed.), Natural Law Volume II (1991) 139.
[57] By which Finnis means the moral obligation to obey that follows ‘intra-systemically’ from the sub-point enunciated by Raz, supra.
[58] John Finnis, Natural Law and Natural Rights (1980) 354.
[59] John Finnis, Natural Law and Natural Rights (1980) 357.
[60] John Finnis, Natural Law and Natural Rights (1980) 354.
[61] John Finnis, Natural Law and Natural Rights (1980) 361.
[62] Cf the discussion of natural law in H. L. A. Hart, Concept of Law 205 cited in John Finnis, Natural Law and Natural Rights (1980) 354.
[63] John Finnis, Natural Law and Natural Rights (1980) 362.
[64] John Finnis, Natural Law and Natural Rights (1980) 362, italics are mine.
[65] John Finnis, Natural Law and Natural Rights (1980) 362, italics are mine.
[66] John Finnis, Natural Law and Natural Rights (1980) 362.
[67] The Declaration of Independence of the Thirteen Colonies In Congress, (July 4, 1776) http://www.archives.gov/national_archives_experience/declaration.html

[YUN1]glissade

[YUN2]? meaning

[YUN3]This footnote is not well constructed.

DREADTHESIS: THE NEW NATURAL LAW AND THE TRANQUILLITAS ORDINIS

E Just War and Just Peace

Just as one may be freed from certain obligations by the operation of new natural law principles in light of the unjust use of authority one may also acquire obligations with regard to humanitarian intervention. This issue is at once intuitively obvious for the new natural law and simultaneously theoretically and practically vexatious. The issues shall be dealt under two heads namely, just war theory as a part of the new natural law and humanitarian intervention as a licit development of the ancient codes of warfare.

1 The Just War Tradition

a The Tranquillity of Order

The purpose of the setting up of collectives and the proper ordering of human relations is the establishment of the tranquillitatis ordinis or that which Weigel renders the ‘tranquillity of order’ or ‘the peace of “dynamic and rightly ordered political community””.[1] This is the end point of the new natural law and it is the practical summit of politico-legal theorising on the nature of the common good. Within the theoretical framework introduced at the beginning of this paper, the new natural law understands peace as a matter not of individuals’ right relations with the Creator - this is a question of interior conversion – and it does not involve seeking for the establishment of a world without conflict. This last point cannot enter the serious legal scholar’s realm of reason, and for a new natural lawyer it is particularly problematic in a world forever marked by the mysterium iniquitatis.[2] But the idea of ‘peace on Earth - which man throughout the ages has so longed for and sought after’ is countenanced in a limited sense and it is recognised that it ‘can never be established, never guaranteed, except by the diligent observance of the divinely established order’[3] namely, the system of natural law described supra. Thus, the new natural law aims to build-up the common good as the tranquillitatis ordinis or the order created by just political community and mediated through law for the peaceful functioning of individuals within intra-national and inter-national paradigms.

b Beginning with an Obligation to Defend

The new natural law treats conflict within the same moral framework that informs the other aspects of rule-making. Thus, ‘the classic [Just War] position, begins with the presumption – better, the moral judgement – that rightly constituted public authority is under a strict moral obligation to defend the security of those for whom it has assumed responsibility’.[4] It is for this reason Weigel contends, that Aquinas locates his discussion of bellum iustum within his treatise on charity in the Summa Theologiae.[5] The classic reading is the passage quoted by Finnis where Aquinas states ‘so too rulers have the right (ad principes pertinet) to safeguard that public order (rempublicam) against external enemies, by using the sword of war’.[6] In this manner it becomes incumbent upon the properly constituted authority to protect the populace united beneath her for the common good. Further, just as the new natural law does not specify with regard to the types of government appropriate to human flourishing, rather leaving the question open to accommodate the multiplicity of human experience, the question of whom and how to defend the common wealth is left open. Thus, the new natural law concept of warfare is informed by the same moral concerns that frame the rest of the theory.

c The Requirements of Just War theory
There are, however, certain recognised requirements that govern the decision to go to war. Thus, the conclusion that conflict is necessary therefore, can be made only by/with with (I) legitima auctoritas (public authority) as no private person has the right (non pertinet ad personam privatam) to initiate a war (bellum movere)’.[7] The second requirement is (II) iusta causa (just cause) or (cause of action) in legal parlance. There is no iusta causa unless those we are attacking deserve to be attacked by reason of their guilt in respect of some wrong which they refuse or fail to rectify which then becomes the ground for retributive punishment. Third, (III) recta intentio (proper/right intention) takes care of what might be called the ‘moral’ side of things. Therefore, if one has right intent, i.e.., to prevent cruelty or harm to innocents, then one fights in a just cause (or has standing)[8] and are not merely permitted but rather the taking of action is meritorious and should be encouraged or considered worthy of praise.[9] Next, (IV) military intervention must be the (V) last resort with (VI) reasonable chance of success to avoid excessive death and injury and avoid civilian casualties. Finally, the (VII) means must be proportionate and the ultimate goal must be to establish a (VIII) peace preferable to that which would have prevailed if the war had not been fought.[10] Thus, a reasonably complex list of criteria is to be met before the new natural law will sanction the use of force.

2 Developments

a The Need for Courage

Currently, however, new natural law conceptions are mired in an understanding of warfare closer to the experience of Aquinas than reasonably adapted to the current geo-political climate. Indeed, modern commentators recognise that ‘the traditional Clausewitzian conception of war as organised combat between military forces of two or more sovereign states has become increasingly divorced from the characteristics of most armed conflicts since 1945’.[11] The new face of strife has seen the rulers of various nations; ostensibly under the new natural law system the protector and guarantor of the common good, instead turn the resources of the state upon their own people. Thus,

‘their handiwork is visible in the genocides in Rwanda and Cambodia; the widespread use of chemical weapons against the Kurds of Iraq; ethnic cleansing in Kosovo and the slaughter of thousands of Muslims at Srebrenica; the gruesome images of women and children whose limbs have been hacked off by rebel forces in Sierra Leone’.[12]

It is important to note that ‘in all of these modern conflicts, it is civilians, not combatants, who are the principal victims’[13] and as such, the new natural law as it stands cannot provide for the defence of such individuals. Indeed, it is not alone for ‘in the half century since Nuremberg, those who have perpetrated the worst crimes have too often escaped justice…in large part…because there have been no courts willing or able to judge them’.[14] In each case the natural law tradition would prescribe first the correct deployment of legitimate authority for to safeguard the ‘public order (rempublicam) against external enemies’[15] before as a secondary consideration urging the contemplation of revolution to overthrow or ‘replace a persistently unjust lawmaker’[16] when the threat is intra-national. Such prescriptions, however, do not currently countenance the peculiar state of catastrophe visited upon populations victimised by the modern tyrant.

b A Bold Move but an Ideal Player

The new natural law can make an abiding contribution to the future shape of jurisprudence by enunciating the requirements of practical reasonableness as they bear upon the notion of humanitarian intervention. Thus, there is a role for the new natural law in delineating the conflicting demands of ‘a state’s supposedly absolute sovereignty with even more fundamental human rights which may be held to justify intervention on behalf of oppressed nationals of another state’.[17] Further, the area is already developing, with operations from Kosovo to Afghanistan and Iraq being couched in the language of humanitarian intervention and cited as acts of ‘liberation’[18] and ‘a number of international legal scholars – in particular, but far from solely, from the United States – advance a case for the continued legality of humanitarian intervention under the UN Charter even without authorisation from the Security Council’.[19] Thus, the time is ideal for new natural lawyers to formulate a sound doctrine on this issue, in keeping with the dictates of the theory that would guide such developments. Indeed, the new natural law, with its pragmatic theoretical paradigm, informed as it is by the refusal to separate law from justice or right from morality, is singularly suited to deal with such questions.

c Possibilities: The Human Person in the Universal Senate

The new natural law will need to base any extension of the Just War doctrine on broader notions of authority. Thus, extrapolating from the system already articulated for the setting up of political authorities informed by the concept of the state, the new natural law should countenance the notion of the global ruler and the global community of individuals united for the common good. As has already been shown, the UN is deficient by new natural law standards, but natural lawyers could constructively posit the establishment of a properly constituted global authority. Further, as it is widely recognised that ‘national judicial systems are often hopelessly compromised, if not completely destroyed, by the governments responsible for the crimes in question…and…superpower rivalries and Security Council vetoes [assail] any proposal to establish an international court’[20] the time is auspicious for the concentration of natural law minds upon the task of assembling the apparatus of global governance. In the same manner that natural law formulations inspired and literally wrote the success of the great modern liberal democracies, the opportunity exists once more for the notion of humanitarian intervention, presented as an extension of Just War theory and rooted in the ancient and intellectually fecund new natural law treatment of authority and obedience, to operate as the springboard into a new era of human political activity and a more effective marshalling of resources in the pursuit of the common good.

V Conclusions

This paper has engaged maximally with the new natural law. It has been concerned primarily to articulate the school’s particular conception of authority. It has been demonstrated[YUN1] that the new natural law position is set within a peculiar Christo-centric ontology. This situates the genesis of all authority in the divine reason and abstracts legal discourse into a coherent system by segmenting rule-making into the related constructions of the eternal law, the natural law and the human law. It has also been shown that the naturalistic fallacy can no longer be considered a constraint on the ambitions of the natural law school, having been concisely debunked. The manner in which the new natural law can be said to be universal, particularly at the second level of abstraction was enunciated and the point at which it admits of variance was demonstrated to be within the human laws division. Further discussion canvassed the manner in which the notion of authority is translated into an issue of obedience and then set out the agency of the common good and the basic goods in any decision to abide by the dictates of a human authority. It was shown that precisely because the human person is the centre of the new natural law understanding of the state such regimes merit obedience. This is purely because they are conducive with the common good. Next, the historical example of the impact of natural law ideas at the United States of America’s inception reinforced the general belief that a state serves and is constituted solely for the benefit of its constituents.

The second part of the paper moved to a discussion of the new natural law treatment of justice. This section demonstrated justice to be wedded to the legal project and asserted that only those regimes operating for the sake of human flourishing could be said to be productive of law. This was introduced under the wider new natural law idea of the requirements of practical reasonableness and concluded by reference to the manner in which identification of such requirements and their fulfilment in the legal project calibrate the natural lawyers ability to speak of law-as-justice. This led to a brief treatment of the problems of co-operation and the efficacy of uniting under a single sovereign to better manage the finite resources open to human consumption.

The final stages then shifted to an analysis of the manner in which the new natural law countenances the notion of revolution. It was shown that the very nature of the natural law system dictates that it must needs protect and encourage human flourishing in light of the multiplicity of human experience. Criticisms usually levelled at legal theories, namely accusations of bias resulting from blindness to difference were shown to be for the most part answered by the new natural law’s tendency to be inherently cognisant of individual difference. Discussion then shifted to an understanding of revolution as a part of the new natural law, not its sole concern. Next, despite the previous analysis, it was shown that the ancient claim that ‘lex iniusta non est lex’ still retains surprising, indeed pivotal importance in the theory as a whole. It was shown that this concept is the means by which the most humane elements of the new natural law school are guaranteed against the incursions of injustice and tyranny. Finally, notions of supranational governance, the inadequacy of the UN in light of new natural law principles, the opportunity for the extension of the Just War doctrine to facilitate a new growth area within new natural law theorising were all investigated. In this last section the idea of the law operating for the establishment or sustenance of the tranquillity of order was juxtaposed with the pressing issue of humanitarian intervention in light of modern perversions in governance and warfare. In the final analysis the new natural law was put forward as a more than usually suitable candidate to lead the global community into a new age of order and global governance. [YUN2]

[1] George Weigel, The Just War Tradition After September 11 (2002) 25.
[2] “Mystery of Iniquity” cf John Paul II, Letter to Priests for Holy Thursday (2002) 11.
[3] John XXIII, Encyclical Letter: Peace on Earth (Pacem in Terris)…on Establishing Universal Peace in Truth, Justice,Charity and Liberty, (April 11, 1963) 1.
[4] George Weigel, The Just War Tradition After September 11 (2002) 23, italics are Weigel’s.
[5] George Weigel, The Just War Tradition After September 11 (2002) 23, italics are Weigel’s.
[6] John Finnis, Aquinas: Moral, Political and Legal Theory, (1998) 284.
[7] John Finnis, Aquinas: Moral, Political and Legal Theory, (1998) 284.
[8] The use of the legal term is deliberate as the case is put within a legal paradigm.
[9] John Finnis, Aquinas: Moral, Political and Legal Theory, (1998) 284-7.
[10] Loosely taken from Richard Owen, ‘Vatican Peace Mission’ in The Times, (February 10, 2002).
[11] Danish Institute of International Affairs, Humanitarian Intervention: Legal and Political Aspects (1999) 30.
[12] Carr Center for Human Rights Policy, Kennedy School of Government, The United States and the International Criminal Court (2002) 2.
[13] Carr Center for Human Rights Policy, Kennedy School of Government, The United States and the International Criminal Court (2002) 2.
[14] Carr Center for Human Rights Policy, Kennedy School of Government, The United States and the International Criminal Court (2002) 2. The Pinochet business is another example.
[15] John Finnis, Aquinas: Moral, Political and Legal Theory, (1998) 284.
[16] John Finnis, Natural Law and Natural Rights (1980) 362, italics are the author’s.
[17] United Kingdom Foreign Office, Policy Document No. 148 U.K.M.I.L. 1986 57 B.Y.I.L. 614 cited in D. J. Harris, Cases and Materials on International Law (2002) 917
[18] George W. Bush, Remarks by the President from the USS Abraham Lincoln At Sea Off the Coast of San Diego, California (2003) at http://www.whitehouse.gov/news/releases/2003/05/iraq/20030501-15.html.
[19] Danish Institute of International Affairs, Humanitarian Intervention: Legal and Political Aspects (1999) 82.
[20] Carr Center for Human Rights Policy, Kennedy School of Government, The United States and the International Criminal Court (2002) 2, the author does not consider an ICC without the participation of the United States as hyper-power a credible court of universal jurisdiction.

[YUN1]that’s putting it a bit high

[YUN2]men and women lead, and obstruct

DREADTHESIS: THE NEW NATURAL LAW AND THE TRANQUILLITAS ORDINIS

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