Jeremy Waldron: What is Natural Law Like?
Waldron, Jeremy, What is Natural Law Like? (May 17, 2012). Available at SSRN: http://ssrn.com/abstract=2061672
“The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.