Law moral natural overlap thesis

The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William Blackstone describes the thesis, "This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original" (1979, 41). In this passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law.

Authentic moral conscience, however, is not merely something that I roll up my sleeves and produce—the product of having weighed my feelings, likes, dislikes, my friend’s opinion on the matter, advice from others, and so on.  While all of this might serve to help me arrive at a genuine judgment of conscience, that judgment—if sound and genuinely proceeding from conscience—will proceed from the core of my being, and will correspond to objective moral norms  anchored in the truth about what perfects us as human persons.  It will be a weighty and carefully distilled judgment of what—given the objective ends of human nature—is reasonably required of me (or someone else) in the present circumstance.

The fact is that romantic love has long been the primary means by which nature, shaped by culture, has induced to become parents most of the people in our civilization who have been parents. They have not, like Clement’s followers, or like some monarch thinking about alliances and succession, made a solemn, cool, ratiocinative decision to form a reproductive partnership. The further fact, our full awareness of which is relatively recent, is that, in some people, nature has largely or exclusively restricted the type of fulfillment provided by romantic love to relationships with members of the same sex. No one should pressure them to seek that fulfillment. Some might find celibacy or a Clementine marriage more appealing. But to legalistically forbid them the very possibility of romantic fulfillment even as the masses of Christendom enjoy it and take it for granted cannot but seem an unlovely pharisaism, however ancient or canonical its provenance.

Retributive justification. Why should wrongdoers be punished? Most people might respond simply that they deserve it or that they should suffer in return for the harm they have done. Such feelings are deeply ingrained, at least in many cultures, and are often supported by notions of divine punishment for those who disobey God's laws. A simple retributivist justification provides a philosophical account corresponding to these feelings: someone who has violated the rights of others should be penalized, and punishment restores the moral order that has been breached by the original wrongful act. The idea is strikingly captured by Immanuel Kant 's claim that an island society about to disband should still execute its last murderer. Society not only has a right to punish a person who deserves punishment, but it has a duty to do so. In Kant's view, a failure to punish those who deserve it leaves guilt upon the society; according to G. W. F. Hegel, punishment honors the criminal as a rational being and gives him what it is his right to have. In simple retributivist theory, practices of punishment are justified because society should render harm to wrongdoers; only those who are guilty of wrongdoing should be punished; and the severity of punishment should be proportional to the degree of wrongdoing, an approach crudely reflected in the idea of "an eye for an eye, a tooth for a tooth."

Law moral natural overlap thesis

law moral natural overlap thesis

Retributive justification. Why should wrongdoers be punished? Most people might respond simply that they deserve it or that they should suffer in return for the harm they have done. Such feelings are deeply ingrained, at least in many cultures, and are often supported by notions of divine punishment for those who disobey God's laws. A simple retributivist justification provides a philosophical account corresponding to these feelings: someone who has violated the rights of others should be penalized, and punishment restores the moral order that has been breached by the original wrongful act. The idea is strikingly captured by Immanuel Kant 's claim that an island society about to disband should still execute its last murderer. Society not only has a right to punish a person who deserves punishment, but it has a duty to do so. In Kant's view, a failure to punish those who deserve it leaves guilt upon the society; according to G. W. F. Hegel, punishment honors the criminal as a rational being and gives him what it is his right to have. In simple retributivist theory, practices of punishment are justified because society should render harm to wrongdoers; only those who are guilty of wrongdoing should be punished; and the severity of punishment should be proportional to the degree of wrongdoing, an approach crudely reflected in the idea of "an eye for an eye, a tooth for a tooth."

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law moral natural overlap thesis