Abstract
In this chapter, I examine Kelsen’s contention that the natural law doctrine necessarily depends on the existence of God or other supreme creator. I argue that this contention is based on a number of interrelated claims: that the natural law doctrine attempts to provide a definitive standard of justice; that such a definitive account may only be posited by a superhuman creator; that natural law seeks to derive principles of justice from the nature of reality; and that natural law norms may only be derived from a general norm posited by God, moreover, if natural lawyers deny the claim that the principles of natural law may only be derived from God, they must necessarily be attempting to derive an ought from an is. Throughout the chapter, I challenge Kelsen’s claims by considering natural law theories which do not conform to them. I consequently argue that Kelsen’s conception of natural law is a caricature which does not correspond to, or accurately reflect, the rich and varied tradition of natural law thought.
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- 1.
See, also, ‘Only under this presupposition [i.e.: that a divine will is inherent in nature] is it possible to maintain the doctrine that the law can be deduced from nature and that this law is absolute justice’ (1949: 485); and ‘Above the imperfect positive law created by man a perfect, because absolutely just, natural law exists, established by divine authority’ (1949:485).
- 2.
He also writes that the natural-law doctrine ‘may deny the jurisdiction of [the tribunal of science] by referring to its religious character’ (1949: 485), thereby implying that religious based assertions are not suitable for scientific (i.e.: objective) evaluation.
- 3.
It is noteworthy that Kelsen quotes Grotius’ view that acts may be prohibited or encouraged ‘by the authority of nature, God’ and that the ‘essential traits implanted in man’, from which we may derive laws of nature ‘can rightly be attributed to God’ (1949: 482) but that he does not mention Grotius’ assertion that his account of natural law would be valid if God did not exist.
- 4.
We reach the same conclusion if we use Dworkin’s own definition of the ‘less extreme “natural law” theories [which] claim only that morality is sometimes relevant to the truth of propositions of law. They suggest, for instance, that when a statute is open to different interpretations … whichever interpretation is morally superior is the more accurate statement of the law’ (1986: 36.). And, again, if we adopt d’Entrèves’ formulation that ‘Perhaps the best description of natural law is that it provides a name for the point of intersection between law and morals’ (1965: 116.)
- 5.
Bodenheimer also appears to see this as being firmly within the natural law tradition: ‘The natural-law approach … considers prevailing convictions, widely accepted ideals and the “reason of the age” as legitimate supplementary sources of law-finding …’ (1950: 342).
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See Sect. 13.5.
- 7.
He also writes that this ‘line of argument … amounts to the negation of natural law by natural law’ (1949: 486).
- 8.
- 9.
Bodenheimer agrees that it is inherent within the natural law doctrine that certain kinds of human behaviour should be regulated to ensure the survival of society: ‘According to natural-law doctrine, the rational side of our nature teaches us that without restrictions on homicide organized society cannot exist’ (1950: 346).
- 10.
As a point of interest, Dworkin suggests that those in the original position who would choose the two principles of justice that Rawls claims they would – the so-called liberty and difference principles – rather than, say, utilitarianism, would also naturally choose interpretivism (i.e.: integrity) as a ‘better bet to achieve justice … in the long run’ (2006: 249).
- 11.
For example, using Gadamer (1989), I would argue that any attempt to abstract ourselves from our life circumstances is itself conditioned by those circumstances, by our effective history, so that the veil of ignorance is an artifice governed by our cultural and life contingencies. Indeed, a number of writers have detected evidence of bias in Rawls’ original position (Freeman 2014: 486–487).
- 12.
Hart similarly writes that ‘Natural Law is part of an older conception of nature’ which assumes that the natural world has a teleological purpose (1994: 188–189).
- 13.
It is worth observing that this supposition is reminiscent of his pure theory of law whereby each norm of a legal system derives from a higher norm. To be sure, it is, in part, Kelsen’s assertion that we cannot rely on a meta-norm – whether derived from God or nature – that leads him to posit a basic norm, the Grundnorm, which must be presupposed (2002: 201–205).
- 14.
As a point of interest, Dworkin states that the existence of God would not, in itself, evade what he calls Hume’s principle’ (that moral values cannot be derived from facts). The ‘scientific fact’ of God’s existence, like any other fact, does not ‘justify a particular conviction of value’ without some additional ‘background principle’ to explain why (Dworkin 2013: 21–29).
- 15.
Moreover, Fuller argues that the positivists’ attempt to divorce law from morality, to become ‘pure science’, means that they fail to have anything significant to say about the content of the law and, thereby, their usefulness as legal theorists is limited (Fuller 1966: 85–95).
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Acknowledgement
I am grateful to my co-editors, Dr. Peter Langford and Dr. Ian Bryan, for their comments and suggestions on an earlier version of this chapter; any errors remain my own.
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McGarry, J. (2017). Kelsen and the Necessity of God in the Natural-Law Doctrine. In: Langford, P., Bryan, I., McGarry, J. (eds) Kelsenian Legal Science and the Nature of Law. Law and Philosophy Library, vol 118. Springer, Cham. https://doi.org/10.1007/978-3-319-51817-6_13
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