NATURAL LAW IN JURISPRUDENCE AND POLITICS

Vol. 16 No.8 (August, 2006) pp.592-596

NATURAL LAW IN JURISPRUDENCE AND POLITICS, by Mark C. Murphy. Cambridge: Cambridge University Press, 2006. 204pp. Hardback $75.00/£45.00. ISBN: 0521859301.

Reviewed by Walter J. Kendall lll, Professor of Law, John Marshall Law School, Chicago, Illinois. 7kendall@jmls.edu

Nature law theory is like Twain, not yet dead; rather the growth in the number of books on the subject published over the last 50 years indicates it is quite alive and well: 282 in the 1950s, 486 in the 1960s, 493 in the 1970s, 557 in the 1980s and 694 in the 1990s. (Kainz 2004).

NATURAL LAW IN JURISPRUDENCE AND POLITICS, by Mark Murphy, is the third title on the growing Cambridge Studies in Philosophy and Law list. Additionally, he has contributed at least a dozen articles.

Do we really need another such book? Yes, and I both fear and hope many more. Yes, because there is a continuing need to understand the values, sources, and limits of political authority in the form of law. The fear is that too many of the books and articles are distractions, adding nothing of value to this quest. The hope is that there is another Occam to help us cut through the mounds of material to uncover just what these values, sources and limits are. Murphy’s book, while not for neophyte, does help cut through the fog on several important questions.

While there are many, too many understandings of natural law, in the words of Francis Oakley the “central intuition of the natural law tradition [is] that human beings through the diligent use of their reason do have access to norms of justice that are in some profound sense natural and universal” (Oakley 2005).

Murphy, in this book of analytic philosophy, defends two claims – one of natural law jurisprudence that “it is of the essence of law to bind in reason,” and another of natural law political philosophy, that “what makes law bind is its role with respect to the common good of the political community” (0.1).

In his earlier book, NATURAL LAW AND PRACTICAL RATIONALITY (2001), Murphy made a case for a “naturalist, objectivist, cognitivist, welfarist, anti-particularist, anti-consequentialist” view of natural reason. Naturalist in that the fundamental reasons for action (the basic human goods) are grounded in (human) nature; objectivist in that well-being is not fundamentally a matter of the person’s attitude; cognitive in that the basic goods are knowable; welfarist in that reasons for action are about the “well-being” of the actor; anti-particularistic in that the reason for action can be generalized; and anti-consequentialist in that the basic goods are incommensurable. To complete this briefest description of his earlier project, Murphy considers the basic human goods to be ten: life, knowledge, aesthetic experience, [*593] excellence in play and work, excellence in agency, inner peace, friendship and community, religion, and happiness. “Each of these is a fundamental reason for action, and together they exhaust all of the fundamental reasons for action” (p.96).

In NATURAL LAW IN JURISPRUDENCE AND POLITICS, however, he makes no claims about the specific character or content of the principles of practical reason or of the common good. He goes so far as to say “one could affirm a natural law jurisprudence or a natural law political philosophy while rejecting a natural law account of practical rationality.”

Unfortunately, in assuming familiarity with the case made in the earlier book, this book becomes quite abstract in many places, even to the extent that several arguments are presented in part in symbolic form (see eg. 5.3 – “let A and B be minimally acceptable, incompatible determinations of P, and let Φ-ing be the act dictated in A and Ψ-ing the act dictated in B. Suppose that one renders A as the determination of P, yet Ψ-s instead of Φ-ing. How could the agent have violated P by Ψ-ing, since Ψ-ing is the act dictated by B, which is ex hypothesis a minimally acceptable determination of P?”). Nonetheless the book is worth reading.

NATURAL LAW JURISPRUDENCE - The first two chapters are concerned with the validity or “lawness” of a law, which lacks a decisive reason for action of an “internal” or “of the essence” nature. A reason for action is decisive if and only if that reason renders doing a particular act reasonable and not doing that act unreasonable (0.1)

Murphy rejects what he calls the “moral reading” of the natural law thesis – that a law is not a law and there is no moral obligation to obey it if it is totally lacking in (moral) reason. He rejects this view for two reasons. One, it is a claim of moral philosophy, not analytic jurisprudence, and two because it is “excruciatingly uninteresting” in that everyone accepts it!

Rather he discusses “the strong” reading of the natural law thesis and rejects it for “the weak” reading. The strong reading finds a norm not backed by a decisive reason as lacking legal validity. The weak reading accepts such a norm as valid, but defective. As he puts it, “the strong reading says of the law what one would say of a two sided triangle; it’s not a triangle. The weak reading says of the laws what one would say of a duck that was not a skillful swimmer; the duck is a “defective duck” (1.1).

Murphy discusses three “routes” to the weak natural law thesis: a “legal point of view” offered by John Finnis; a “law as functional kind” argument described by Michael Moore; and a “law as illocutionary act” argument. Murphy finds Finnis’ view “too much like the uninteresting moral reading” (2.2). He however, finds both the functional approach and the speech act approach “successful” (2.3, 2.4).

Murphy concludes his discussion of natural law jurisprudence by “conced[ing] to the positivist the separation thesis and reject[ing] the [*594] stronger of the two jurisprudential natural law thesis” (2.6). In this rejection of the strong reading and defense of the weak reading Murphy briefly discusses the views of Brian Bix, Michael Thompson, Norman Kretzmann, Philip Soper, David Lyons, Peter van Inwagen, Brian Leiter, and of course Austin, Hart, and Fuller. This direct engagement with other jurisprudes and philosophers continues throughout the book and is perhaps its most valuable feature.

Murphy, at this point in his argument, has concluded that laws lacking in an internal decisive reason for acting (the natural law approach to practical rationality of his earlier book provides those reasons) are nonetheless law; defective, but still law.

NATURAL LAW POLITICAL PHILOSOPHY - Since “most of what we encounter in developed legal systems seems to be a contingent setting of norms. . . . Something made by folks (of limited intelligence and less than complete virtue the question becomes) how is it possible for (such) law . . . to be binding, to be the sort of norm backed by decisive reasons for compliance?” (2.7). This is a complex question that has generated an enormous literature. (Edmundson 2004).

To answer that question is “the agenda for natural law political philosophy.” In the next chapters Murphy defends an aggregative conception of the common good, shows how this concept of the common good provides the reason-giving force needed to make law binding, and sets forth a “consent theory” that provides needed help to contemporary natural law theories.

Murphy considers three conceptions of the common good: the instrumentalist, the distinctive good, and the aggregative. “On the instrumentalist view the common good consists of the presence of those conditions that are necessary or helpful means for members of that community to realize their own worthwhile ends. On the distinctive good view the common good consists in the obtaining of some intrinsically good state of affairs that is literally the good of the community as a whole (as opposed to simply the goods of the members of that community). On the aggregative view, the common good consists in the realization of some set of individual intrinsic good, characteristically the goods of all (and only) those persons that are members of the political community in question” (3.1).

Finnis has argued against an aggregative conception of the common good because it seems to support paternalism (using political authority to prevent a competent person from acting unreasonably) and to reject the principle of subsidiary (political authority is not to take over the provision of goods that lower-level associates are able to provide for themselves) (3.3). Murphy rejects this, basically because it appears to him “the wrong way around.” In his view, the basic or intrinsic goods determine the goodness, so to speak, of the instruments.

Murphy challenges Finnis and others holding his limited view of the common [*595] good with two questions. One, “aren’t some self-regarding actions so evil or debasing that they are the appropriate object of state action, even apart from their effects on specific other regarding obligations or on the moral environment more generally”? Two, “are there not other goods – perhaps goods of community – that are instantiated or at least fostered by placing citizens in the same boat as it were”?

Murphy rejects the distinctive good view of the common good as adding “nothing.” He argues that if it is something that makes a person well-off it is part of the individual’s good and thus part of the common good of the community considered in the aggregate. Further to the extent the distinctive good view “distances itself from the good of persons its normative hold…is loosened” (3.4)

Regardless of the understanding of the common good, the natural law account of the law’s authority holds that a failure to do as the law directs is a failure to do one’s fair share with respect to the common good. What is not settled is why the law gets to determine both the common good and my fair share. Why can’t I do so myself for instance? (3.6). The answer that has become “standard” among natural law theorist is the “salient coordinator account;” that is, practical reasoning persons recognize the need for an authority to coordinate action for the common good and that the law is the most salient candidate to do so (4.6).

Murphy defends Finnis’ presentation of this argument against Yves Simon and Joseph Raz (4.6) yet ultimately rejects it for the reason that desirability, even need, does not create authority. Thus, there is still a “gap” in the argument for the bindingnes of law. (4.7) Murphy offers a “non-standard consent” account to close the gap (5.5) but confesses that, while it explains to a significant extent the authority of law over citizens, it ultimately fails to establish that we are required to obey the laws of our political communities (5.7).

Murphy has a chapter on punishment and briefly comments on the question of the reach of the law if its bindingness is the common good: should family and friends receive priority; and how should people beyond the usual jurisdiction of a political entity be treated (the cosmopolitanism problem)?

So where are we at the end? The jurisprudential claim, that law not backed by decisive reasons is defective, is sound. Yet, there is something in the common sense of law that is over and above, or beyond, positive law. Certainly the international debate about torture, rendition, pre-emptive strikes, and other matters starkly present the question of whether there is anything “good governments” ought not to do. The argument that any norm relied on to justify such actions has to be backed by a decisive reason grounded in natural practical reason strongly suggests that the answer is yes, there are some things good governments ought not to do. Similarly, despite describing his effort as a failure, Murphy’s quest for an understanding of the common good, that in turn has sufficient normative status to be the decisive reason for compliance with law, succeeds in presenting a [*596] compelling if not conclusive case that, for most people most of the time, the laws will be viewed as such. In extraordinary situations the law with the common good principle, while defective, is strong enough “that the failure to honor it requires justification.” And justification and the resulting transparency are not insignificant forces pressing decision makers towards practical rationality.

All in all NATURAL LAW IN JURISPRUDENCE AND POLITICS is a worthwhile exploration of key issues in jurisprudence and political theory. One can look forward to Murphy’s future offerings.

REFERENCES:

Edmundson, William A. 2004. “State of the Art: The Duty to Obey the Law.” 10 LEGAL THEORY 215-249.

Kainz, Howard P. 2004. NATURAL LAW: AN INTRODUCTION AND RE-EXAMINATION. La Salle, IL: Open Court Publising.

Murphy, Mark C. 2001. NATURAL LAW AND PRACTICAL RATIONALITY. Cambridge: Cambridge University Press.

Oakley, Francis. 2005. NATURAL LAW, LAWS OF NATURE, NATURAL RIGHTS: CONTINUITY AND DISCONTINUITY IN THE HISTORY OF IDEAS. London: Continuum International.

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