CHAPTER 1

Classical Naturalism
 Classical Naturalism

The positivist theories of law were predominant in

conventional Anglo-American jurisprudence for the past 150
year are broadly characterised by the autonomy of law
and legal phenomena.
It held that laws are to be recognised according to
formal criteria and not by reference to moral or
ethical criteria of identification or to the satisfaction
of social expectation.
The separation of 'is' and 'ought' emphasised as held
by many positivists to be a fatal flaw in classical
naturalist arguments.
The 'naturalist' contend that law is to be identified by
reference to moral or ethical, as well as formal,
criteria of identification.
THE CENTRAL CONCERNS OF NATURALIST THEORIES
Naturalist thought covers a vast historical spectrum from the Old
Testament to the present day.
The modern revival of this type of theory can be identified by
reference to the work of a 13th-century theorist, St Thomas
Aquinas where he stated the naturalist thought:
. . . implies not that 'bad' laws cannot be made and
imposed but that such laws are defective in being
wrongly made and are thus limited or even entirely
lacking in their claim to be obeyed as a matter of
conscience. This is in fact a concern with the moral
nature of the power to make laws rather than with the
formal identification of State prescription.
(H. McCoubrey, The Development of Naturalist Legal Theory
(London: Croom Helm, 1987), p. xii.)
In modern terms, the twin pillars of naturalist argument are:
a 'proper purposes' doctrine in lawmaking, and the nature
and limitations of the obligation to obey law.
THE STRANDS OF CLASSICAL NATURALISM
The development of classical naturalist thought showed two
principal categories of approach, i.e, . perceived source of
the moral or ethical evaluation of positive law that are being
addressed.
Some theorists have sought criteria of evaluation in perceived or
revealed higher sources of morality, religious or otherwise.
Others have found the model for 'good law' in rational observation
of human society.
For present purposes it is convenient to concentrate upon which
related in a variety of ways to both (a) and (b) and also look forward
to much more recent developments.
In dealing with all these theories it is important to bear in mind that
although the context in which they were advanced was, to varying
degrees, distanced from our own, the problems they addressed are
still with us. Walled cities and modern suburbs have, from the
viewpoint of legal theory, more in common than might at first be
thought.
CLASSICAL GREEK NATURALISM:
PLATO AND ARISTOTLE
The most important contributions to classical Hellenistic
legal theory were made by Plato (c. 427-347 BC) and
Aristotle (384-322 BC).
The latter was the pupil of the former, who had, in turn, been
taught by Socrates. Their views differed in certain important
respects and this difference was to be reflected also in much
later developments in legal theory.
They were generally rationalist in their approach in that
they considered 'good' and 'bad' laws, and the
appropriate reactions to them, to be discoverable by
rational observation.
The ultimate source of concepts of good and evil,
whether divine or the product of the 'natural' forces acting
upon the human condition, was not a matter of importance
in their legal theory.
 Platonic Idealism and Legalism
Plato was an 'idealist' who taught that the real world
should be moulded to conform to a better 'ideal' reality which
is open to the understanding of human reason. He
considered that it could be understood only by persons of
suitably trained ability.
In the Republic he set out a model for the perfect society
which he founded not upon a rule of laws but upon a form
of 'benevolent dictatorship' through the government of a
'philosopher king'. This Utopian ruler was to be a person
able to perceive and comprehend the ideal reality in
order to relate it to the actual State having:
. . . a list of characteristics full apprehension of reality,
good memory, readiness to learn, breadth of vision and
grace, and be a friend of truth, justice, courage, and self-
control.
Such rulers were to be trained through a rigorous, if less than
wholly practical, education and would then proceed upon the
rationally perceived dictates of ultimate virtue.
Their rule would thus not be encumbered by legal forms but
Plato and the Obligation to Obey
Plato considered this question at length, in the context of the
trial and execution of his own teacher Socrates (469-399 BC),
The Last Days of Socrates.
The teaching of Socrates was offensive to the Athenian
establishment of the day and he was eventually charged with
impiety and corruption of youth, in effect sedition, and
brought to trial.
He was convicted and condemned to death but execution
was delayed upon ritual grounds during the ceremony of
the 'mission to Delos', with the implication that if Socrates, a
well-known philosopher, were to escape and flee into exile he
would at once relieve Athens of the irritation of his teaching and
the odium of bringing about his death.
In The Last Days of Socrates, Plato purports to present
statements and conversations of Socrates relating to law
and the duty of obedience. Two sections are of immediate
interest, the Apology, which is an idealised representation of
Socrates's contentions before the Athenian tribunal, and
the Crito, which is represented as a dialogue between Crito
Both sections deal explicitly with the problem of obligation in
relation to a 'bad' law, or a law 'badly' administered.
In the Apology, Socrates is represented as arguing that the State
has no right to demand that a person commit evil, and where
this is in fact demanded the only honourable course is refusal.
He gives as an example an order given to him and others during the
oligarchic rule of the '30 tyrants' to arrest Leon of Salamis in order
that he might be unjustly executed. Socrates alone refused and
argued that had not the '30 tyrants' then been overthrown he would
himself have been put to death. Leon of Salamis was, after all,
executed.
The point of the argument is made clear by Socrates's statement after
his own condemnation that:
the difficulty is not so much to escape death; the real
difficulty is to escape from doing wrong.... When I leave this
court I shall go away condemned to death, but [my accusers]
will go away convicted by Truth herself of depravity and
wickedness.
(Plato, Apology, 38&-391), transi. H. Tredennick, in The Last Days of
Socrates, p. 73.)
In the Crito three grounds for an obligation to comply
with the law are set out in the course of an argument
presented as a hypothetical discussion between Socrates and
the personified laws of Athens.
These arguments have a considerable social-
contractarian element and as precursors of 17th and 18th-
century thought and certain modem theories.
The first is an overtly paternalist argument, making a clear
comparison between the relationship of parent and child
and that of State and citizen In essence the individual is
argued to have an obligation to obey arising from
gratitude for the law maintaining a system in which he
or she has chosen to reside, thereby acknowledging its
authority.
As the personified laws are made to contend:
whoever. . . stays [in the State] . . ., seeing the way in
which we decide our cases in court and the other ways in
which we manage our city, we say he has thereby, by his
act of staying, agreed with us that he will do what we
demand of him.
 The Teleological Analysis of Aristotle
Aristotle, in contrast with Plato, taught that human beings have an
inherent potential for good and the State should facilitate its
realization.
In this he saw properly conceived laws as a better instrument for
the inculcation of virtue than any form of autocratic or oligarchic
rule.
This idea of the proper purpose of law derives from a teleological
analysis of the human condition.
Aristotelian teleology teaches that all things have a potential for
development specific to their nature, the achievement of a
particular 'good'. Thus, the 'good' of an acorn is to develop into
an oak tree. Anything which assists this process is 'good' for the acorn,
anything which is a hindrance thereto is 'bad' for it.
The case of humankind is, of course, more complex, primarily by
reason of the attribute of rationality which confers powers of
choice which may be exercised for good or ill. In the Politics,
Aristotle argued that one of the products of reason is the nature of the
human being as apolicikon zon or a 'political animal', combining
for mutual life in societies of which the highest and most complex is the
State.
A 'good' law is then one which enables its subjects, as social
creatures, to achieve their maximum potential appropriate
Interestingly, in the Nichomacean Ethics, Aristotle appears to
concede the existence of a morality higher than that
embodied in 'good' laws.
Aristotle indicates that this is not a different order of justice
but an equitable standard which the law itself should reflect but
which may also be used to correct difficulties which may arise
from the unfairness of particular applications of rules which
are 'good' as general provisions.
In the Aristotelian scheme, it would seem that the citizens were to
be educated in the constitutional structures of their State
whatever its moral qualities.
The ancient Greek city-states were, by modern standards, extremely
small political units, which were yet further reduced, for present
purposes, when it is borne in mind that the politically enfranchised
citizen body constituted a relatively small proportion of the total
population.
In such contexts, arguments of individual persuasion and relatively
free departure to a more congenial State have more practical merit
than they might in a large modern democracy, to say nothing of a
modern totalitarian State.
TO BE CONTINUED