What is Natural Law?
•Universal and immutable law.
•Principle claim: what naturally is, ought to be.
•Derived from what is natural or in accordance with the natural order.
•Discoverable by reason.
•But it has taken on different forms its more then 2500 history.
What is positivism?
•Doctrine about the nature of law according to which:
(a) all laws are laid down or posited by a certain person or procedure, and
(b) something counts as a valid law of a certain system in virtue of being laid down by a certain someone or according to a certain procedure.
•Therefore: the legal validity of a rule or decision depends on its sources (e.g. where it has come from, and how, and when), rather than its merits (e.g. whether or not it is a good rule or decision).
•There is no necessary connection between law and morals or law as it ought to be and law as it is.
•the nature of legal systems can be completely understood without reference to their having any intrinsic moral value, purpose, function or point.
How do they conflict?
•If ‘lex injusta non est lex’ [an unjust law is not a law] then this is in direct contradiction to the positivist idea of laws’ validity.
•May disagree on how the nature of legal systems should be understood.
Do they conflict?
•No (Or at least not completely)! They may be trying to answer different questions.
•An important conceptual framework: Distinguishing between Normative and descriptive Legal Theories.
Cicero, De Republica,1st Century BC
“True law is right reason in agreement with nature, diffused among all men; constant and unchanging, it should call men to their duty by its precepts, and deter them from wrongdoing by its prohibitions; and it never commands or forbids upright men in vain, while its rules and restraints are lost upon the wicked. To curtail this law is unholy, to amend it illicit, to repeal it impossible,; nor can we be dispensed from it by the order either of senate or of popular assembly; nor need we look for anyone to clarify or interpret it; nor will it be one law at Rome and a different one at Athens, nor otherwise tomorrow than it is today; but one and the same law, eternal and unchangeable, will bind all people and all ages; and God, its designer, expounder and enactor, will be as it were the sole and universal ruler and governor of all things; and whoever disobeys it, because by this act he will have turned his back on himself and on man’s very nature, will pay the heaviest penalty, even if he avoids the punishments which are adjudged fit for his conduct”.
The fundamental tenets of what he is saying:
1. LAW has a divine origin and is superior to man made law.
2. This law is apparent to all intelligent people who have the capacity to reason.
3. This law is eternal and does not change over time. What is mala inse has been thus since time immemorial.
4. It is immutable and cannot be changed.
5. Lex injusta non est lex
St Thomas Aquinas (1225 – 1274)
•“Law is nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community…granted that the whole community of the universe is governed by Divine Reason. Therefore the very idea of the government of things in God the ruler of the universe, has the nature of a law. And since the divine reason’s conception of things is not subject to time but is eternal…therefore it is that this kind of law must be called eternal.” – Summa Theologica
Natural Rights Theories
Hugo Grotius (1583-1645)
•In the early 17th century, he introduced the modern idea of natural rights of individuals.
•We each have natural rights which we have in order to preserve ourselves.
•He uses this idea to try and establish a basis for moral consensus in the face of religious diversity and the rise of natural science and to find a minimal basis for a moral beginning for society, a kind of natural law that everyone could potentially accept.
Thomas Hobbes (1588-1679)
•The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes. According to Hobbes in LEVIATHAN, the lives of individuals in the state of nature were “nasty, brutish and short”, a state where self-interest and the absence of rights and contracts prevented the ‘social’, or society. Life was ‘anarchic‘. Individuals in the state of nature were apolitical and asocial. This state of nature is followed by the social contract.
John Locke (1632 – 1704)
In his Second Treatise of Government (1689), John Locke produced a conception of the social contract which differed from Hobbes’ in several ways, but retained the central notion that persons in a state of nature would willingly come together to form a state. Locke believed that individuals in a state of nature would have stronger moral limits on their action than accepted by Hobbes, but recognized that people would still live in fear of one another.
•Locke argued that individuals would agree to form a state that would provide a “neutral judge”, and that could therefore protect the lives, liberty, and property of those who lived within it.
•Locke also believed that people will do the right thing as a group, and that all people have natural rights.
Jean-Jacques Rousseau (1712-1778)
In Du Contrat Social (1762), Rousseau famously declared,
‘Man is born free, yet he is everywhere in chains.’
•In his influential 1762 treatise, The Social Contract, outlined a different version of social contract theory, based on popular sovereignty. Although Rousseau wrote that the British were perhaps at the time the freest people on earth, he did not approve of their representative government. Rousseau believed that liberty was possible only where there was direct rule by the people as a whole in lawmaking, where popular sovereignty was indivisible and inalienable.
•The social contract can be reduced to the following terms: Each of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole.
In Discourse on Inequality, 1754, he says,
•“The first man who, having fenced in a piece of land, said “This is mine,” and found people naive enough to believe him, that man was the true founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.”
The American Declaration of Independence – 1776
“When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such a form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate, that governments long established, should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves to abolish the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”
The French Declaration
•In the same way, the French National Assembly made a similar appeal in 1789 to “simple and indisputable” principles which showed that man had natural rights to “liberty, property, security and resistance to oppression”.
This formidable doctrine of Natural Law Declined. Why?
Niccolo Machiavelli (1469 – 1527)
Macchiavelli is renowned for his works, ‘The Discourses’ and ‘The Prince’.
•‘The Discourses’ advocated the idea of a republican government free from the shackles of traditional morality. He sought to argue that the state should be driven by ethical concerns free of traditional, Christian moral beliefs.
In the Prince, he said,
•‘Christianity placed supreme happiness in humility, lowliness, and contempt for worldly objects, whilst the religions of antiquity (or so Machiavelli argued) had stressed Grandeur of soul, strength of body, and various qualities which rendered men formidable. Christianity had made men feeble, causing them to become easy prey to evil-minded men: ‘we Italians owe it to the Church of Rome and to her priests our having become irreligious and bad…’
He then poses the great rhetorical question of all time,
•‘The question arises; is it better to be loved than feared, or vice-versa? I don’t doubt that every prince would like to be both; but since it is hard to accommodate these qualities, if you have to make a choice, to be feared is much safer than to be loved. For it is a good general rule about men, they are ungrateful, fickle, liars and deceivers, fearful of danger and greedy for gain. While you serve their welfare, they are all yours, offering their blood, their belongings, their lives, and their children’s lives…so long as the danger is remote. But when the danger is close at hand, they turn against you. Then, any price who has relied on their words and has made no other preparations will come to grief; because friendships that are bought at a price, and not without greatness and nobility of soul may be paid for but they are not acquired, and they cannot be used in time of need. People are less concerned with offending a man who makes himself loved than one who makes himself feared: the reason is that love is a link of obligation, which men, because they are rotten, will break any time they think doing so serves their advantage, but fear involves dread of punishment, from which they can never escape’
•Machiavelli thus concludes that law does not transcend the nature of man; it is a mere technique of ruling. Social relations are essentially defined by struggles for power;
•‘There are two ways of fighting, one with laws, the other with force. The first is properly a human method, the second belongs to the beasts…a prince must know how to use both of these two natures, and that one without the other has no lasting effect’
David Hume (1711 – 1776)
In A Treatise of Human Nature, Hume argues that Natural Law theory derives an ‘Ought’ from an ‘Is’. That is to say that they talk as if all of this exists, only to assert eventually that it ought to exist. The natural law shift in the philosophical paradigm is therefore illogical, inexplicable and unacceptable.
Thus he says,
‘In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find that instead of the usual copulations of propositions, ‘is’ and ‘is not’, I meet with no proposition that is not connected with an ‘ought’ or an ‘ought not’. This change is imperceptible……… (I) am persuaded that this small attention would subvert all the vulgar systems of morality , and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects nor is perceived by reason’.
John Austin (1790 – 1859)
• In the Province of Jurisprudence Determined, John Austin famously says, “The most pernicious Laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as Laws by judicial tribunals, Suppose and act of innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the Law of God… the court of justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the Law which I have impugned the validity. An exception, demurrer, or plea, founded on the Law of God was never head in a Court of Justice, from the creation of the world down the present moment.” 0
Immanuel Kant (1724 – 1804)
•‘The world that we encounter in ordinary experience is one in which we are faced with choices between ends equally ultimate and claims equally absolute, the realization of some of which must inevitably involve the sacrifice of others………..Nevertheless it is a conclusion that cannot be escaped by those who, with Kant, have learnt the truth that out of the crooked timber of humanity no straight thing was ever made’. – Isaiah Berlin (1909 – 1997) Two Concepts of Liberty
In his Access to Justice Findings, Lord Woolf identified the problems with the English Civil Justice system circa 1990 as follows:
1. Litigation was too expensive, in that costs often exceeded the value of the claim. Statistics put forward by the Civil Justice Review 1988, indicated that in the County Court the costs represented almost 100% of the amount of damages recovered by the litigants and at the High Court, it was about 25%. The main be beneficiaries of the system therefore appeared to be the lawyers!
2. Litigation was too slow in bringing a case to a conclusion. Woolf attributed this largely to lawyer’s playing the adversarial game.
3. There was a lack of equality between litigants who are wealthy and those who are not. A system that was expensive and slow clearly favoured wealthier parties.
4. Litigation was too uncertain in terms of time and cost.
5. The system was incomprehensible to many litigants. The procedural rules were complex and there was a duality of procedure between the County Court and the High Court.
6. The system was too fragmented since there was no clear overall responsibility for the administration of civil justice. Judges did not have a clearly defined role to manage and expedite proceedings.
7. Litigation was too adversarial as cases were run by the parties and not by the courts with the rules all too often ignored by the parties and not enforced by the courts.
Lord Woolf argued that the principles that should underpin the civil justice system are:
1. The system should be just in the results it delivers.
2. It should be fair and be seen to be so by: –ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights; –providing every litigant with an adequate opportunity to state his own case and answer his opponent’s; –treating like cases alike.
3. Procedures and cost should be proportionate to the nature of the issues involved.
4. It should deal with cases with reasonable speed.
5. It should be understandable to those who use it.
6. It should be responsive to the needs of those who use it.
7. It should provide as much certainty as the nature of particular cases allows.
8. It should be effective: adequately resourced and organised.
The new landscape of civil litigation was to have the following features:
1. Litigation will be avoided wherever possible. The thrust of the reforms was aimed at reducing the absolute number of cases brought before the courts to a manageable level but changing the litigation culture. But imposing on the litigants an obligation to either settle cases which are straight forward or seek alternative dispute resolution (ADR).
2. Litigation will be less adversarial and more co-operative. By the introduction of case management, as well as, other pre action protocols – Woolf aims to promote a culture of getting to the crux of the issues rather than using procedural rules to delay and frustrate claims. The promotion of a system where parties use a single joint expert is also intended to achieve this result.
3. Litigation will be less complex. The basic idea is to simplify the procedures, so that self help is possible.
4. The timescale of litigation will be shorter and more certain. He hoped that case management would achieve this.
5. The cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual cases.
6. Parties of limited financial means will be able to conduct litigation on a more equal footing.
His principal recommendations were that the following Key new features should be implemented into the system:
1. Pre-Action Protocols – to provide a clear framework for both parties to follow, to resolve or at least clarify a dispute before the issue of a claim. Pre-action protocols in the areas of clinical negligence and personal injury cases came into force on 26 April 1999. There have since been others. Before a claim is issued, claimants must write to defendants informing them that they intend to pursue a claim. They are then expected to begin following the pre-action protocol. Claims should not be issued until a minimum of three months after a letter of claim has been sent.
2. Part 36 offers – Introduced on 26 April 1999, Part 36 enables the claimant as well as the defendant to make an offer to settle. This offer to settle can be made before the claim is issued or during proceedings. If the claim proceeds to trial, then any offer made by either party will be taken into account when it comes to awarding costs.
3. Single joint experts – to reduce costs and promote co-operation between the parties. • Lord Woolf argued that the use of experts was a major problem in the civil justice system. They contributed to the cost of litigation, increased the complexity and delayed the proceedings, all of which were against the spirit of his recommendations. He proposed that there be a single joint expert where possible and that the duty of the expert to the court should be emphasised. As a general principle, single experts should be used wherever the case (or the issue) is concerned with a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of opinions.
4. Case Management – to ensure cases are dealt with justly. Lord Woolf also saw litigation being simplified by the introduction of case management by the court, with the court being able to strike out issues or whole claims where there is no real prospect of success and controlling discovery.
Defended cases would be allocated to one of three tracks:
(i) Small Claims Track – for personal injury cases up to £1,000 and all other cases up to £5,000.
(ii) Fast Track – originally intended for cases above the small claims limit and not exceeding £15,000. Cases would be run according to fixed timetables leading to trial in 20-30 weeks to trial. The trial would be expected to last one day or less with limits on oral and expert evidence.
(iii) Multi Track – for cases over £15,000 and those cases which were too complex for the fast track. Case management by judicial teams would be a feature of the track and there would be either standard or tailor made directions as appropriate.
Lord Woolf envisaged a system where cases would be conducted in a quicker time frame and the Fast Track was introduced with a 30 week time period from issue to trial. Lord Woolf also wanted litigants to know what events would take place during this time period and when they would occur. A key to reducing the timescale of litigation is case management in Fast and Multi-Tracks.
5. Costs – to increase certainty and proportionality, there would be fixed costs for cases on the fast track and the development of benchmark costs for multi-track cases. Costs orders were to better reflect the conduct of the successful party and the outcome of individual issues. Fixed costs were introduced for fast track trials
6. Rules – to reduce complexity there would be a single set of rules for the High Court and county courts. Lord Woolf envisaged a system with a single set of rules for the High Court and county courts and all proceedings commenced in the same way by a claim with special rules for specific types of litigation kept to a minimum. This is now encompassed in the Civil Procedure Act 1997 and the procedures have been greatly reduced. The plethora of initial documents: Default Summons, Fixed Date Summons, Writ, Originating Application and Originating Summons are being done away with.
7. ADR – the use of Alternative Dispute Resolution would be encouraged. ADR can be undertaken at any time once a dispute has arisen and the pre-action protocols encourage the use of ADR before a claim is issued. The introduction of the Civil Procedure Rules has raised the profile of ADR. Once a claim is issued, ADR is most likely to be encouraged by the courts at the allocation stage, case management conferences and pre-trial reviews. The court may of its own initiative stay the timetable to allow parties to try to settle the case by ADR or by other means.
The real issue is whether the measure he introduced have achieved the objectives he set out.
This will be considered in the next article in this series.
I am pleased to announce that with immediate effect I will be acting as consultant to the LLB programme at Stamford College, Jalan 223, Petaling Jaya.
In view of this, I am converting this blog into a legal issues blog and will be writing on topics relevant to law students.
I may digress from time to time – however, the bulk of the writing on this blog will be dedicated to academic views on a variety of law subjects. I shall also be inviting my friends from around the world to contribute to this blog, in an effort to create a world view on the subjects.
Please feel free to contribute your views and comments on any of the subjects.
Dr Siva Ananthan