In this week’s class, we discussed classical and contemporary theories of natural law. We spent the second portion of our meeting looking at the work of Lon Fuller and John Finnis, two modern legal theorists who work within the natural law tradition.
Fuller is concerned with the rules that constitute the ‘internal morality of law’. He describes eight rules that must be followed in order for a legal system or given law to be considered valid. These rules do not focus on the content of legal statutes, but on the ways that law is crafted and administered – the ‘procedural morality’ of law.
Finnis takes a different approach. His starting point is a careful, intuitive survey of the basic aspects of well-being – in other words, what ‘basic goods’ about social life appear to be self-evident? He identifies seven ‘basic forms of human flourishing’, ranging from the valuing and transmission of life to religion and the value of spiritual experience. He argues that the purpose of law is to serve the common good (which reflects these basic forms of human flourishing). Law provides the orderly framework that allows people to pursue self-evident goods.
Pavlich organizes his review of contemporary natural legal theory around a case study of the Apartheid-era Prohibition of Mixed Marriages Act (1949). This is a piece of legislation that, from our present social and moral standpoints, appears to be categorically unjust. It is based on notions of racial supremacy, structural discrimination, and inequality. Pavlich invites us to use both Fuller and Finnis’ theories of natural law as sources for a vocabulary of critique that would allow us to explain why the Prohibition of Mixed Marriages Act is unjust and immoral.
Food for thought:
I would like to reproduce Pavlich’s exercise using a different case study – one that is the focus of considerable debate across Canada right now.
Québec Premiere Pauline Marois (of the Parti Québécois) recently introduced a Charter of Québec Values. This Charter, if it is passed into law, would (among other things) support the idea of a secular public sphere by prohibiting public servants from displaying overtly religious headwear, clothing, and ‘conspicuous’ religious symbols. It would also require those who seek to use state services to uncover their faces.
The proposed charter has been highly divisive, and some have argued that it is unjust, immoral, and a violation of Canadian values. Others have expressed strong support for the idea of a secular state (which is not a new idea in Québec).
And this is a CBC News story that explains some of the different perspectives on the Charter.
Write a post that examines the Charter of Québec Values using both Fuller’s procedural morality perspective and Finnis’ theory of Law and flourishing human life. Your post should address the following questions:
- Assuming the Charter passed and was implemented, would Fuller argue that it has the force of law? Would Finnis?
- Of the two theorists, whose ideas provide the stronger vocabulary of critique in this case?
- Finally, what is your perspective on the Charter? Is it just?
Your post should engage with material from Pavlich (2011) and sources that discuss the Charter of Québec Values.
Posts responding to this food for thought question must be submitted before 19:00 on September 25.