Natural Law Jurisprudence - Term Paper Example

Natural Law Jurisprudence automatically lends itself to the teleological approach” "Natural Law," or “ jus naturale” , was largely used in the philosophical speculations of the Roman jurists , intends to denote a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems peculiar to any one people, might be discovered by the rational intelligence of man, and would be found to grow out of and conform to his nature, meaning by that word his whole mental, moral, and physical constitution. In ethics, it consists in practical universal judgments which man himself elicits. (source: Blacks Law Dictionary, Sixth Edition ). It is based on the principle that ‘ lex jnjusta non est lex’ - ‘law which is not moral is not law at all ’. The term ‘ Jurisprudence’ is derived from the Latin term ‘ juris prudentia’, which means "the study, knowledge, or science of law". Jurisprudence implies creating a body of law and methods for interpreting the law, studying the relationships between law and society, and predicting the effects of legal decisions . It is the science or philosophy of law. It applies to substantive law and to the legal system in general. It is based on the fundamental principle of ‘just society’ which means in a democratic country, all are equal and their rights (personal and property rights) should be protected before law. Judges apply it without favor or fear. Jurisprudence implies creating a body of law and methods for interpreting the law, studying the relationships between law and society, and predicting the effects of legal decisions.(Wikipedia) . The purpose of jurisprudence is to "achieve social order through subjecting peoples conduct to the guidance of general rules by which they may themselves orient their behavior" (Fuller 1965, 657). About Google Book Search - Book Search Blog - Information for Publishers - Provide Feedback - Google Home ©2007 Google The word ‘ Teleology is derived from the Greek word ‘telos, which means "goal", purpose".(– page : socillogy 3rd ref ). The ancient world was permeated by teleological thought, that is, a belief that everything has a pre-ordained purpose – there’s a pattern to the world and to each thing in it . (Socrates, Aristotle, the Stoics – also the Oracle in The Matrix). It is based on the Greek concept of ‘eudemonism’ which means that people live a satisfying life based on Universal laws. The Greeks viewed the universe as self correcting. “ The state, like all things, has a certain end. A just state is one that is organized in such a way as to achieve this teleological purpose.”( Plato : The Republic).“Within the state, every person has a role or function, and ‘just conduct’ lies in fulfilling his or her role. ”( Aldous Huxley’s novel Brave New World). Aristotle and Thomas Aquinas were great supporters of teleology . Whether “ Natural Law Jurisprudence automatically lends itself to the teleological approach” ? In order to analyze this question , first we have to understand the characteristics of Natural law and teleology . Natural Law Jurisprudence has the following distinguishing features which separates it from teleological law . i. Natural law is universal and unchanging – it’s always available to legislators, judges and citizens of any jurisdiction in the field of justice – correcting wrongs and distributing goods (Harris) ii. The sources of natural law are customs, usages, case laws and precedents iii. It is discoverable by human reason iv. Natural law attempts to analyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to constitutional law. v. It commands obedience from people and people obey it in moral sense. vi. In the US and many parts of the world, Natural Law has become very much influential. vii. International law derives its validity from natural law. International Law is based on the principles of Natural law jurisprudence. UN Charter recognizes natural rights, and principles. viii. The formation of the UN, and the principles embodied in its Charter, all emerged from the natural law tradition On the contrary, Teleology has the following characteristics : i. Unlike natural law, it lacks ‘reason ‘ . ii. It is very casual in nature . iii. The teleological standpoint is based on religion. In its origin, this standpoint is a crude and barbarous transfer of the earthly relations of slavery and submission on the one hand, and domination on the other, to the universe as a whole. It fundamentally contradicts a scientific explanation, and is based on faith alone. iv. It lacks rules and regulations which make it weak and submissive. “The external regulation of human conduct in mutual relations is the necessary prerequisite of a social life as a specific goal. It is the ultimate factor, to which all social thought must formally be traced back in its peculiarities as such" (Stammlers - p. 83) Because of the above reasons teleology has attracted criticism from several jurists. MacCormic (MacCormic, op cit.,8) “ justice is not teleological but purely and simply procedural “ – justice has to be separated from procedural aspect. In the words of Plato , “ Imagine not being able to distinguish the real cause from that without which the cause would not be able to act as a cause. It is what the majority appear to do, like people groping in the dark; they call it a cause, thus giving it a name that does not belong to it. That is why one man surrounds the earth with a vortex to make the heavens keep it in place, another makes the air support it like a wide lid. As for their capacity of being in the best place they could possibly be put, this they do not look for, nor do they believe it to have any divine force, but they believe that they will some time discover a stronger and more immortal Atlas to hold everything together more, and they do not believe that the truly good and "binding" binds and holds them together." [Plato, Phaedo 99bc] However, if we analyze in detail, we can observe that, In jurisprudence and political philosophy, a system of right or justice common to all humankind and derived from nature rather than from the rules of society, or positive law. The concept can be traced to Aristotle, who held that what was "just by nature" was not always the same as what was "just by law." The theory of natural law holds that there is a certain order in nature from which humans, by use of their reason, can derive standards for human conduct . Eternal law is the decree of God which governs all creation. Natural law is the human "participation" in the eternal law and is discovered by reason. ( Saint Thomas Aquinas ,13th century European priest). Natural-law proponents, or naturalists, agree that governmental rules and regulations are a legitimate source of law, but assert that they are not the only source. Naturalists believe that the law must be informed by eternal principles that existed before the formation of government and are independent of governmental recognition. Depending on the particular strain of natural law, these principles may be derived from teleology, moral philosophy, human reason, historical practice, and individual conscience. Though positivists argue that - apart from rules and principles , judges will not consider other factors like religion or morality there are situations as in Mohammedan Law, where ‘religion’ is the basis for judicial decisions. Further , legal rules which are framed by human beings will gain respect and acceptance if only they are moral. Conclusion : Though we no longer see the world as it was, though teleology can’t solve all problems of the world which has become too complex, greedy and unruly, we can’t ignore the fact that, natural law jurisprudence though not automatically lends itself to teleology, it accepts and adopts certain fundamental principles of teleology which are valid even now. The task of jurisprudence is to provide a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world. Jurisprudence acquires such conditions from teleology. Teleology can be used as a source of wisdom and light for moral guidance.(Austin 1995, 11) "Every human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law" (Thomas Aquinas , ST I-II, Q.95, A.II). To sum up in the words of William Blackstone , "This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original" (William Blackstone 1979, 41). Bibliography Main Sources : N.I. Bukharin: Historical Materialism - a System of Sociology J. Hall, ed., Readings in Jurisprudence (1938); W. S. Carpenter, Foundations of Modern Jurisprudence (1958); D. Lloyd, Introduction to Jurisprudence (3d ed. 1972). P. C. Gasson, Theory of Design (1973); N. Rescher, ed., Current Issues in Teleology (1986). Secondary sources : Read More