Those who follow this blog regularly will know that I’ve recently been doing some posts on natural law. By and large, the posts have been focusing on natural law arguments against same sex marriage. Today, I offer yet another post on natural law, but with a different focus. This time I’ll be looking at the proposed connection between natural law and legal theory.
Some people might wonder why I call this a “proposed” connection. Surely, I hear them say, natural law and legal theory are deeply connected? After all, natural law is about the law, isn’t it? Yes and no. Natural law theory is concerned with laws, but these are not necessarily the kind of laws you might have in mind. Natural law is, primarily, concerned with ethical laws, i.e. rules that govern how we ought to behave. It is only secondarily concerned with human laws, i.e. rules set down in acts of parliament or in written constitutions. It is this secondary concern I want to look at today.
In so doing, I will use Mark Murphy’s excellent little book Natural Law in Jurisprudence and Politics as my guide. In the book, Murphy clearly distinguishes between the ethical and legal sides of natural law theory. He also presents a rather interesting argument — the illocutionary act argument — for a weak natural law theory of human law. This post and the next are dedicated to setting out this argument and evaluating some of its components.
Warning: when I say this is an interesting argument, I am being sincere, but I’m well aware that the interest is possibly only apparent to those who care about legal philosophy. If this is not something that interests you, then I you may be disappointed.
1. Strong and Weak Natural Law Theses
To understand Murphy’s argument, we need first to understand the differences between the two kinds of natural law theory. In general, natural law theory is associated with the idea that there is a higher law, one that sits above and set constraints on anything that might be created by human beings. This general idea is cashed out in more specific ways by two different branches of natural law theory. They are as follows:
Natural Law as a Moral Theory: As a moral theory, natural law is associated with two ideas: (i) there is something called human nature; and (ii) this nature means that there are certain basic goods that we all have reason to pursue. In other words, it is associated with the idea that our nature determines what it is morally acceptable/desirable for us to do. This is the version of natural law that I’ve been discussing up til now.
Natural Law as a Legal Theory: As a legal theory, natural law is associated with the idea that a human law must be backed by decisive reasons for action. In other words, it is associated with the idea that there must be compelling reason to follow the law. What this actually means for human law can be spelled out in strong or weak theses, as follows:
The Strong Thesis: If a human law fails to be backed-up by decisive reasons, then it is not properly called a “law” at all. This is captured, imperfectly, in the famous maxim: lex injusta non est lex (an unjust law is no law at all).
The Weak Thesis: If a human law fails to be backed-up by decisive reasons, then it can still be called a “law”, but it must be recognised as a defective law.
This theoretical breakdown is illustrated in the diagram below. As can be seen, there are obvious connections between the legal and moral branches of natural law theory. After all, if the moral theory is correct, then the decisive reasons for action that are needed by the legal system will be found through an investigation of human nature and the basic goods.
Although these connections are obvious, they are not necessary. That is to say: one could endorse the legal theory without having to endorse the moral theory, and vice versa. This is an important consideration to bear in mind when assessing the merits of Murphy’s argument. It is to that argument — which is called the illocutionary act argument — that we now turn our attention.
2. Illocutionary Acts
The illocutionary act argument (ILA) is offered in support of the weak natural law legal thesis (WNLLT). While the term “illocutionary act” is common in the philosophy of language, I suspect it will be alien to many. Thus, a definition would be in order. Alas, there doesn’t seem to be a clear, agreed-upon definition. So perhaps the best way to understand the concept is by considering examples. To this end, it is worth looking at the following taxonomy of illocutionary speech acts (originally developed by John Searle):
Assertives: These are speech acts that commit the speaker to the truth of the proposition being asserted.
Directives: These are speech acts that are intended to cause the hearer to perform some sort of action, e.g. requests, demands, advices.
Commissives: These are speech acts that commit the speaker to some future course of action, e.g. promises.
Expressives: These are speech acts that express the speaker’s attitudes toward certain objects, events or states of affairs, e.g. congratulations.
Declaratives: These are speech acts that create something or bring about a change in something, e.g. baptisms, marriages.
There are two important things to note here. First, there is the general idea that speech can be an act, i.e. that it can cause changes in the world. This is a remarkable idea since speech doesn’t seem to have any intrinsic causal powers. For example, my telling you to close the door does not, automatically, result in the door being closed. It is only if you understand my request and are willing to comply with it that such changes can be brought about. Thus, speech has active powers only to the extent that people can hear, understand and comply with it. And people can only do this if they have minds.
Second, there is the idea that different kinds of speech act have different conditions of success attached to them. If you wish to successfully perform an assertive speech act, you must make sure that the proposition you assert is actually true. If it is not actually true, then your assertion is defective.
This notion of conditions of success forms the backbone of Murphy’s ILA. In essence, his claim is that human laws are particular kinds of speech act, and as particular kinds of speech act, they have conditions of success attached to them. If they fail to meet these conditions of success, they are defective.
3. The Illocutionary Act Argument
All of which raises the question: what kind of speech act are human laws? In answering this question, Murphy initially limits his argument to mandatory legal norms. These are the kinds of legal norms that usually spring to mind when we are asked to consider the law. Criminal laws, for example, are mandatory in nature: you are not allowed to murder someone. Compliance with this norm is not supposed to be optional. If for some reason you do not comply with it, you will be punished.
Mandatory norms are to be contrasted with power-conferring laws such as the law relating to contract or marriage-formation. These laws allow you do things, such as create legally-enforceable promises, but they are optional in nature. Nobody is forcing you to get married or sign contracts, but if you do so, you will fall under the ambit of the law. While Murphy thinks the ILA can be extended to cover such laws, he thinks it best to make this case after developing the ILA for mandatory legal norms.
So now we are faced with a new question: what kind of speech act is a mandatory legal norm? The answer, according to Murphy, is that a mandatory legal norm is a demand. It is something that asks us to do one thing to the exclusion of other things, it is not a mere request. As such, a demand must provide decisive reasons for action. This realisation leads to the following basic version of the ILA:
- (1) If a demand does not provide decisive reasons for action, then that demand is defective.
- (2) Mandatory legal norms are demands.
- (3) Therefore, if legal norms do not provide decisive reasons for action, they are defective.
Of course, (3) is equivalent to the WNLLT, so if the the argument is sound, Murphy has made his case. To determine whether the argument is, in fact, sound we need to examine premises (1) and (2) in more detail. This is something we will do in part two.