What is Natural about Natural Law ?

15 Sep

An intriguing discussion between Julian Baggini (philosopher) and Lawrence Krauss (scientist) is reported in The Observer. Since they both agree that ‘physical reality is all that there is’ – a statement whose accuracy may depend on what one means by ‘reality’ and by ‘is’ – one might have expected them not to get very far – but not so.

Rosalind English over at the Human Rights Blog picks up on the suggestion that (as she reads it) Human Rights can be determined scientifically. That is to say, it can be demonstrated scientifically that homosexual orientation and behaviour (Ms English is merely following their example here) are within the scope of privacy and so are to be protected under Article 8 – and so forth, presumably, to resolve all other Human Rights issues. Once the relevant sciences are sufficiently advanced, biologists physicists chemists etc will be instructed rather than lawyers and ethicists.

The reader is invited to pause and consider both (1) what they think to be the jurisprudential implications of this, and (2) whether they agree or disagree.

(One observation would be that in a sense there is nothing new about this – Jeremy Bentham’s felicific calculus and work on the sciences of morals and legislation was surely something like this)

What intrigues the writer is that although this seems very powerful support for a natural law approach to jurisprudence – since the soundness of a law is determinable from outside the legal system itself and indeed in what are regarded as objective facts about the universe after all – he suspects that most natural lawyers will nevertheless reject the use of this as ammunition for them. Conversely, the writer rather thinks that it is the positivists whose intuition will be that this helps their cause. But does it really – for the reasons just stated ?


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