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The Natural Law Thesis: Affirmation or Denial?

Published online by Cambridge University Press:  02 September 2013

Felix E. Oppenheim
Felix E. Oppenheim
Affiliation:
University of Delaware
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Extract

The age old contest between the proponents of natural law and their opponents continues unabated, and a solution does not seem in sight. The reason, it seems to me, is simply that representatives of either side often quite literally do not know what they themselves, as well as their opponents, are talking about. Instead of arguing for their respective theories and against those of their antagonists, they knock down straw men. And since there are periodic “revivals” of natural law, and of its denial as well, the game continues endlessly. Yet, I believe it is sufficient to state the issue clearly to realize that the advocates of natural law adhere to an incorrect epistemological view, and that political thought must dispense with natural law because it is a mistaken doctrine.

Type
Research Article
Information
American Political Science Review , Volume 51 , Issue 1 , March 1957 , pp. 41 - 53
Copyright
Copyright © American Political Science Association 1957

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References

1 In the absence of a handier term for “denial of the natural law thesis,” I have no choice but to use this clumsy expression throughout the paper.

2 The statement: “all persons in the United States have the legal right of free speech” can be empirically verified by referring to the First Amendment and to the fact that this provision has, on the whole, been enforced.

3 That these moral claims are “inalienable” means, that the corresponding legal rights ought not, not that they cannot, be taken away.

4 Republic, III, 22Google Scholar.

5 Cf. Hare, R. M., The Language of Morals (Oxford, 1952), p. 163 f.Google Scholar, for a demonstration that a moral judgment such as: “to do x is just” logically entails the imperative: “do x !”

6 Brunner, Emil, Justice and the Social Order (New York, 1945), p. 8Google Scholar.

7 Chroust, Anton-Hermann, “On the Nature of Natural Law,” in Sayre, Paul (ed.), Interpretations of Modern Legal Philosophies (New York, 1947), p. 80Google Scholar.

8 Op. cit., p. 39. Brunner becomes quite specific: “Private property is a right established by creation” (p. 148). “In fulfillment of the Creator's gift, man is also, by divine ordinance, granted freedom in the use of his sexual faculties” (p. 60)—with some limitations.

9 Op. cit., p. 46.

10 Griffith, Ernest S., “Cultural Prerequisites to a Successfully Functioning Democracy; A Symposium,” this Review, Vol. 50, p. 103 (March, 1956)Google Scholar.

11 Catholics like Maritain avoid this pitfall; they consider belief in God helpful but not necessary to an awareness of natural law. Cf. Maritain, Jacques, The Rights of Man and Natural Law (London, 1944), p. 35Google Scholar.

12 Chroust, loc. cit., p. 70. Throughout this paper, italics are mine unless otherwise indicated.

13 Carritt, E. F., Ethical and Political Thinking (Oxford, 1947), p. 43Google Scholar.

14 Op. cit., p. 36; italics Maritain's.

15 E.g., given the definition: “son” is a male offspring, the statement “all ions are male” is analytic.

16 Brunner, op. cit., p. 86.

17 Del Vecchio, Giorgio, The Formal Bases of Law (New York, 1921), p. 332Google Scholar.

18 Barker, Ernest, Principles of Social and Political Theory (Oxford, 1951), p. 117Google Scholar.

19 Wild, John, Plato's Modern Enemies and the Theory of Natural Law (Chicago, 1953), p. 66Google Scholar.

20 Deduction consists in making explicit what is logically implied by the premise; hence the conclusion cannot contain value-terms such as “unjust” or command-words such as “ought” unless the premise does.

21 Cf. Kluckhohn, Clyde, “Ethical Relativity: Sic et Non,” The Journal of Philosophy, Vol. 52, p. 666 (1955)CrossRefGoogle Scholar.

22 Hall, Jerome, Living Law of Democratic Society (Indianapolis, 1949), pp. 80–81Google Scholar.

23 Wyzanski, Charles E. Jr., “Process and Pattern: The Search for Standards in the Law,” Indiana Law Journal, Vol. 30, p. 150 (1955)Google Scholar.

24 Northrop, F. S. C., “Ethical Relativism in the Light of Recent Legal Science” The Journal of Philosophy, Vol. 52, p. 652 (1955)CrossRefGoogle Scholar.

25 Cf. Hall's statement, quoted above, n. 22.

26 Cf. Stevenson, Charles L., Ethics and Language (New Haven, 1944)Google Scholar; Ayer, Alfred J., Language, Truth and Logic (2d. ed.; London, 1946)Google Scholar, ch. VI; R. M. Hare, op. cit.

27 “Justice is primarily the quality of a social order …. But what does it really mean to say that a social order is just? It means that this order regulates the behavior of men in a way satisfactory to all men, so that all men find their happiness in it …. Justice is social happiness.” This sounds like pure value-cognitivism, of the naturalistic brand; yet it was written by Kelsen (in Sayre, op. cit., pp. 390–91).

28 “Value-terms have a special function in language, that of commending; and so they plainly cannot be defined in terms of other words which themselves do not perform this function.” Hare, loc. cit., p. 91.

29 Kelsen, Hans, “Foundations of Democracy,” Ethics, Vol. 66, pp. 38, 42 (1955)CrossRefGoogle Scholar.

30 Kelsen, loc. cit., p. 16. Kelsen adopts the latter position, but realizes that it leads to solipsism, a “peril” from which he then tries to extricate himself; ibid., p. 17.

31 I realize that the distinction between intrinsic and extrinsic value-judgments is an over-simplification. Usually, one does not select first some “ultimate” end and then considers the means; rather, one chooses between alternative states of affairs, each of which constitutes a whole network of means and ends, i.e., of causal relations. Cf. below, section (d).

32 Strauss, Leo, Natural Right and History (Chicago, 1953), p. 52Google Scholar.

33 Loc. cit., p. 8.

34 Loc. cit., p. 7.

35 “For the differences between intuitionists, naturalists, and non-cognitivists are differences in metaethics—in particular, they are differences about the nature of normative utterances—and do not necessarily entail any disagreement in normative ethics, that is, on questions about what is good or bad, right or wrong, etc.” Frankena, W. K., “Symposium: The Concept of Universal Human Rights,” in Science, Language, and Human Rights (Philadelphia, 1952), p. 190Google Scholar.

36 E.g. Kelsen, loc. cit. p. 26. Contrary to Kelsen's often repeated claim “that almost all outstanding representatives of a relativistic philosophy were politically in favor of democracy, whereas followers of philosophical absolutism, the great metaphysicians, were in favor of political absolutism and against democracy” (loc. cit., p. 34), almost all political doctrines have been defended by proponents and critics of natural law alike. Cf. Oppenheim, Felix, “Relativism, Absolutism, and Democracy,” this Review, Vol. 44, p. 958 (December, 1950)Google Scholar.

37 Leo Strauss, op. cit., pp. 4, 6.

38 John Wild, op. cit., p. 215.

39 One of the best introductions to this topic is Edwards, Ward, “The Theory of Decision Making,” Psychological Bulletin, Vol. 51, pp. 380–417 (1954)CrossRefGoogle ScholarPubMed, (with extensive bibliography). Cf. also: Marschak, Jacob, “Toward a Preference Scale for Decision-Making,” reprinted in Shubick, Martin (ed.), Readings in Game Theory and Political Behavior (Garden City, N. Y., 1954), pp. 22–32Google Scholar. Oppenheim, Felix, “Rational Choice,” The Journal of Philosophy, Vol. 50, pp. 341–50 (1953)CrossRefGoogle Scholar.

40 Dahl, Robert A. and Lindblom, Charles E., Politics, Economics, and Welfare (New York, 1953), p. 3Google Scholar.