UI 305 Judicial Reasoning Natural Law Theory

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UI 305  Judicial ReasoningNatural Law Theory

• Links law to morality
• Links law to religion
• Separates law from mere power
• Alternative to positivism and cynicism

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Natural Law Theory

• Positive law can be properly understood only by
  analyzing it as the concrete realization of the
  abstract principles and functions of natural law.
  
• Human beings are by nature political animals.
  Certain forms of social organization are
  essential to human existence. These essential
  forms constitute the natural law.

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Three Versions of NLT

• Natural law is grounded in human nature,
  understood biologically. (Aristotle)
• Natural law is binding as law only because it is
  backed up by God's commands. (St. Thomas)
• The natural law consists of the axioms of
  practical reason, i.e., self-evident,
  quasi-logical truths about what is good and
  right. (Kant, Finnis)

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Weak vs. Strong NLT
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Weak or Minimal NLT

• If a so-called "law" fails utterly to realize the
  principles of natural law (if it fundamentally
  contradicts natural law), then it is null and
  void, no law at all.
• However, natural law has no binding force in and
  of itself until it is enacted into positive law.

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Strong or Maximal NLT

• Positive law has no validity when in conflict
  with natural law,
• but the natural law can in some cases be valid
  and binding in the absence of positive law.
• For example, the prosecution of Nazi war
  criminals for "crimes against humanity".

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Judges and the Enforcement of Unjust Statutes

• A judge following NLT can honestly set aside a
  statute that contradicts natural law, while still
  acting as a judge, applying the law.
• A legal positivist judge cannot. A positivist
  judge has four options
• Enforce the unjust statute.
• Openly disregard and defy the law.
• Resign or recuse himself from the case.
• Dishonestly adopt NLT to rationalize the decision
  to set aside the statute.

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Natural Law and the American Constitution

• Ancient, medieval and common-law tradition
  recognized the propriety of "equitable
  construction" interpreting a statute so as to
  make it conform to natural principles of justice,
  even if this means setting aside its literal
  meaning.
• Did this tradition become incorporated into the
  unwritten constitution of the U.S.?

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Aristotle on Equity and the Law

• When a case arises on it which is not covered by
  a universal statement, then it is right, where
  the legislator fails us and has erred, to correct
  the omission -- to say what the legislator
  himself would have said had he been present, and
  would have put into his law had he known. And
  this is the nature of the equitable, a correction
  of law where it is defective owing to its
  universality. (NE, Bk. V, sec. 10)

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Equitable Construction

• In the Middle Ages, this was broadened to include
  cases where the law was deficient by excessive
  particularity extensive equitable construction.
• Hamilton "Many things within the letter of the
  statute are not within its equity, and vice
  versa." (The Law Practice of A. Hamilton, Volume
  I, p. 357)

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Early appeals to natural law by Supreme Court

• Chief Justice Chase, in Calder v. Bull (1798)
• Chief Justice Marshall in Fletcher v. Peck, 6
  Cranch 87 (1810)

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Chief Justice Chase, in Calder v. Bull

• The purposes for which men enter into society
  will determine the nature and terms of the social
  compact. An Act of the Legislature (for I cannot
  call it a law) contrary to the great first
  principles of the social compact cannot be
  considered a rightful exercise of legislative
  authority....

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• It is against all reason and justice for a people
  to entrust a Legislature with such powers as ex
  post facto laws, impairing contracts, making
  someone a judge in his own case and, therefore,
  it cannot be presumed that they have done it. The
  genius, the nature, and the Spirit of our State
  Governments, amount to a prohibition of such acts
  of legislation....Legislatures cannot change
  innocence into guilt, or punish innocence as a
  crime." (at 388)

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Marshall in Fletcher v. Peck

• "It may well be doubted whether the nature of
  society and of government does not prescribe some
  limits to the legislative power ... the question,
  whether the act of transferring the property of
  an individual to the public, to be in the nature
  of the legislative power, is well worthy of
  serious reflection....

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• It is the peculiar province of the legislature to
  prescribe general rules for the government of
  society the application of those rules to
  individuals in society would seem to be the duty
  of other departments."

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Riggs v. Palmer, 115 NY 506 (1889)

• Elmer Palmer murdered his grandfather, who left
  Elmer the bulk of his estate in his will.
• The NY statutes provided no exception in the case
  of murderous heirs.
• NY Supreme Court ruled against Palmer, employing
  equitable construction of the statute.

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Test Cases

• The Grudge Informers
• The Nuremberg Trials
• The Fugitive Slave Cases