The World of Law in Philosophical Reflection

Morality and Law: Natural and Positive Law

Anyone who has ever contemplated the origins of law, its essence, and its boundaries has inevitably delved into the relationship between morality and law. Let us also turn to the interplay of morality and law, limiting ourselves to inquiries regarding the origins of law, the potential for moral critique of law concerning freedom, equality, and justice, as well as some other aspects.

Both morality and law share a common root in customs. Customs, as a spontaneously formed system of behavior, were the first and for a long time the sole form of reproducing social order. For a considerable time, ancient peoples did not distinguish between what is and what ought to be, and custom was deeply ingrained in the consciousness and memory of individuals through the practice of communal life, being unequivocally reproduced in both individual and collective actions. In archaic customary systems, it is challenging to discern purely moral aspects from those of a religious-ritual nature and the nascent legal norms; they formed a common substrate for future normative differentiation. The autonomy of morality began long ago, even before the advent of written history, as instances of disjunction between what is and what ought to be became more frequent, giving rise to disputes between actual human behavior and the conduct dictated by ancient traditions. In the gradually emerging moral consciousness, such a conflict manifested as a demand to return to the "truth" of the ancestors, to a norm from which humanity had strayed. Over time, the practical content of that ancient rule faded from memory, leaving only its shell in the form of a formal requirement to strive toward the proper notions of "justice," "truth," "equality," and so forth.

Simultaneously, legal prescriptions were introduced, often through the sanctioning of customary rules. Even before the emergence of the first legal codes, certain prohibitive norms, such as the prohibition of killing one's tribesman, prohibitions against robbery and theft, began to separate from customs and acquire independent legal definitions. For most members of society, these primitive legal norms did not contradict the obligations of conscience dictated by the nascent moral consciousness, for one might assume that the mechanism of action of external (legal) authority is analogous to that of the internal controlling instance (conscience). Observations of human behavior provide grounds to assert the existence in many individuals of deeply rooted structures of obedience, possibly instilled from a young age and solidified by parental authority during upbringing. At the same time, it is essential to emphasize that concurrently with the emergence of law, morality reserved a significantly larger zone of freedom for the individual in private life than had previously existed and than would have been the case had the entire complex of customs been replaced solely by law, for law represents an unconditional normative demand directed at the individual.

The common roots of law and morality facilitated the formation of the doctrine of natural law, which was utilized both to justify the legitimacy of law and for the moral critique of established law. Natural and established (positive) law were distinguished by Aristotle, who wrote, “The law of the state is partly natural, partly established; it is natural when it has equal force everywhere and does not depend on the recognition or non-recognition by men.” Much later, closer to our time, laws established by humans began to be termed positive law.

The aforementioned H. Hart considered that the doctrine of natural law was part of an older natural philosophical concept, specifically a teleological one, according to which humans and all natural entities are directed toward an optimal state or goal established by nature (Greek: τέλος). The particularities of humans—expressed in their ability to think, feel, possess character, and have desires—do not alter this dynamic, for humanity desires and strives for something because all of this is already predetermined as their goal. Here, Hart alluded to Aristotle's notion of form as the end toward which all entities aspire, as well as to the thinkers of the ancient Elder Stoa, who believed that all entities are naturally destined for good, and the Roman Stoics, from whom the idea of natural law entered Roman law and subsequently into the entire European tradition.

Modern German scholar Otfried Höffe identifies three main varieties of the doctrine of natural law: cosmological natural law, anthropological natural law, and rational or reasonable natural law.

It is challenging to contest such a classification, as it is evident and easily traceable in the history of ideas; thus, let us examine these doctrines more closely.

The first, cosmological natural law, is the oldest. Within the depths of human consciousness resides the idea of legal obligations that are not rooted in human authority, free from any establishments or agreements. The totality of such pre-positive or supra-positive obligations was referred to by the Greeks as "law (or justice) by nature," the Latin equivalents being jus naturae and lex naturae. Among the Greeks, the word "law" (νόμος) was known from ancient times, encompassing meanings that included not only "law" but also "order," "necessity," and "fate," all expressed through various albeit almost synonymous terms: "λόγος," "κόσμος," "δίκη." All laws established by humans were preceded by the Law as the eternal order of all that exists (in a divine sense). Even in Heraclitus of Ephesus (6th century B.C.), we find: “For all human laws depend on the one divine: He extends his authority as he wishes, rules over all, and surpasses all.” In Sophocles (497-405 B.C.) we find a reference to this in "Antigone": “The unwritten, unchangeable law of the immortal gods. It was not born today, nor yesterday; it lives forever, and no one knows from whence it came among men.”

Anthropological natural law traces its origins to ancient sophists. If one of them, Protagoras, were asked about the “divine (= natural) law,” he might have responded with his famous remark about the “darkness” of the matter concerning the gods and would likely have added his equally renowned assertion regarding man as the measure of all things. Such reasoning could lead to the belief that there are no moral or legal standards uniform for all times and societies, derived from a single Law. According to this belief, when evaluating moral and legal judgments, a person should adhere only to one criterion—personal opinion, their own choice.

Indeed, the Sophists were the first to sharply delineate the problem of justifying moral and legal norms. While they did not uniformly agree on the means of resolving this issue, they were united by the idea of the justified relativity of customs and established laws across different Greek city-states. This notion was further illustrated by Herodotus, who narrated an episode concerning discussions at the court of an Eastern king regarding accepted funeral rites. Each delegation from various nations recoiled in horror upon learning that some consumed their dead while others cremated them. Everyone seemed to view the customs of the other people as astonishing, if not grotesque and horrifying. The Sophists trained their audiences to not be astonished, but rather to calmly accept the fact of the relativity of the normative frameworks of autonomous communities. In certain respects, the Sophists could be considered the first legal positivists; however, they did not shy away from employing widely accepted concepts of natural law (το φυσει διχαιον) and established law (τα νομιζομενα) in their arguments, at times contrasting one against the other in favor of the former. "Natural law" signifies the equality of humans based on their nature (for instance, rationality), and it ought to serve as a foundation in social life, whereas established laws may be flawed from the perspective of human nature. "People gathered here!" proclaims the Sophist Hippias in Plato's dialogue "Protagoras," "I consider all of you to be kin, relatives, and fellow citizens by nature, not by law; for like is akin to like by nature, while law, governing over men, coerces many into acts that contradict nature." It is evident that the Sophists acknowledged and justified the diversity of customs and laws by which various societies live, but within each of them, established laws should be ratified by the citizens and align with some (largely yet to be elucidated) aspect of human nature.

The cosmological and anthropological doctrine of natural law, which was initiated in antiquity, has periodically been revived later and continues to exist in certain forms today, particularly when discussing the boundaries of legal regulation and the admissibility of a minimal component of "natural law" within modern legal systems.

Primarily during the Early Modern period, a rationalist perspective was added to the cosmological and anthropological concept of natural law, closely linked to the development of issues surrounding individual freedom and the belief in the formidable power of human reason. To a certain extent, this new concept aligns with the anthropological view, as it regards rationality as inherent to humanity; however, it may also be regarded as relatively autonomous, capable of appealing not only to the reason of each individual but also to rationality itself, to reason in any other form, independent of humans. Beginning with the 17th century, through the Enlightenment of the 18th and the philosophical systems of the 19th century, the idea emerged of organizing social life such that established law, the value of which no one could reject, would conform to the principles of rational behavior inherent to every individual by nature. I. Kant, a proponent of such a mode of thought, grounded rights in accordance with the concept of Enlightenment natural law, that is, on the principles of reason. Kant believed that there are a priori postulates of practical reason, the subject of which is freedom, and that these postulates manifest as universal imperatives, the highest norms-demands of reason itself. Positive legislation should be constructed upon the knowledge of the principles of natural law.

Despite the significant role of the idea of natural law throughout the history of legal thought, many researchers today lean towards the view that appealing to natural law in contemporary philosophical-legal theories would be an anachronism. "Today," for instance, points out O. Göthe, "natural law seems so exhausted in its possibilities that it is hardly worthy of any attention, even in the form of sharp criticism."

Let us not dismiss the opinion of an authoritative specialist unconditionally, yet we should not blindly succumb to the allure of their sharp pronouncement. Let us reflect a bit on our own.

Indeed, today we are not considering whether certain principles, norms, or rules of a higher Truth, Equality, Justice, or Order are embedded (concealed) within nature as a whole, or within human nature specifically, with which human laws should be harmonized. Few are capable of believing in the existence of Absolute Good, the Good, or the moral essence of the Universe, of Cosmos today. No one is planning to construct positive law upon such phantoms now. Yet we should not recklessly disregard the millennia-old tradition of employing the concept of natural law. At the very least, this concept can be utilized in two directions, with the prior note that "law" in the conjunction of "natural law" is employed in a more metaphorical sense, for there have never been any legal prescriptions from nature. The first direction pertains to the foundations and limitations imposed by natural reality on the content of positive legal norms, while the second pertains to the prospects of moral critique of law, for legal positivism in its extreme positions specifically excludes such critique. Let us examine these directions.

Natural and anthropological realities establish and limit the actions of legal norms. The legislator cannot ignore the demands imposed by nature itself: the alternation of day and night, seasonal changes in nature, the independence of natural forces from human actions, and so forth. There are conditions and constraints stemming from the biological nature of humans: basic needs that must be considered (needs for food, clothing, shelter, long-term care for offspring, sexual needs, needs for freedom of action, safety, and inviolability due to human frailty, needs for satisfying instinctual drives, including those of power and aggression, etc.), as well as human natural flaws and shortcomings (humans are physically very vulnerable, and significant time and effort is spent on their upbringing; humans en masse are far from angels, though generally not desperate devils; they do not possess an infinite capacity for friendship and love for all, no matter how much Christian teachings may call for it; they cannot endure forced community). It is also a reality that all humans are anthropologically equal, requiring the same legal demands and protection. The realization of this simple fact took considerable time, as legislators first needed to exclude inanimate objects and animals from the realm of legal regulation (in medieval times, courts even considered cases involving the improper behavior of animals), and then to equalize all humans as subjects of legal freedoms and responsibilities, thus excluding all categories of individuals from the class of "animals." Thus, "natural law" in this aspect can be interpreted as the demands and limitations imposed by objective reality itself, and depending on progress in understanding natural laws, the scope of such limitations may be expected to increase.

The second direction of utilizing the concept of natural law, as stated, concerns the prospects of critiquing positive law and its legitimization. The crux of the matter is that a more or less objective assessment of a legal system is only possible from outside its boundaries. One must adopt a position that is connected to the law yet allows for an independent expert evaluation of legal prescriptions and legal practice. It seems that morality and the idea of natural law open up precisely such opportunities, and the category that encompasses both moral and natural-legal components is justice. In the category of justice converge ideas about everything that emerges from both external nature and the nature of humanity itself, and it has become the primary criterion for civilized coercion towards social order. Augustine of Hippo once wrote on this subject: "Without justice, what are states but great bands of robbers?"

People speak of justice when they compare the state of affairs in societal life to certain ideals or to corresponding feelings within their hearts and souls. Initially, it is clear to all of us that when we evaluate administrative orders, they must correspond to sectoral legislation to be deemed just, and the latter must align with a more general framework, ultimately leading back to the constitution. But what about the constitution? Here begins something obscure. Perhaps it pertains to certain values shared by the majority. Often, such values appear as absolutes, which may be unattainable or transcendent; nevertheless, they serve as regulators of social life and contribute to the establishment of elements of genuine justice. People tend to associate the highest instance of justice with Nature or God, though we generally understand that the true source of notions of justice lies in the very lives of people. Even in the depths of millennia, ancient formulas of justice were formed, such as "to each according to their deeds," "to each their own," and "to each according to their merits." These abstract formulations hint at a desire to conceptualize justice as equality in retribution. Within this spectrum of understanding, the principle of talion (from the Latin talionis—retribution, vengeance) finds its place as a symmetric, equivalent response to crime, mentioned in the Laws of the Twelve Tables of Ancient Rome (450 BCE) and in the Bible ("But if there is harm, you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise." - Exodus 21:23-25). This may have seemed just from the perspective of ancient peoples, yet, when viewed through the lens of humanity's progressive potential, the force of talion was counterbalanced by the Golden Rule ("Do not do unto others what you would not have them do unto you"), which also pertained to justice but remained in the realm of intention.

As in many philosophical inquiries, the ancient thinkers were the first teachers in matters of justice. Aristotle, within the realm of law reconciled with justice based on equality, distinguished two forms of justice: retributive and distributive. Distributive justice (later termed from the Latin distributio—division, distribution) pertains, according to Aristotle, to "the distribution of honors, property, and everything else that can be divided among fellow citizens," while retributive justice (from the Latin retributio—recompense, restitution) refers to compensatory justice, relating to exchange processes within economic relationships on an equivalent, proportional basis.

Ancient Roman authors also paid constant attention to the evaluation of law from the perspective of justice. According to Cicero, law must be equal and just, and this is achieved through true laws, which are grounded in the law of nature, or alternatively, in a law that arises from the natural community of humans (naturalis societas). An unjust law can be annulled, but a true law cannot. Nature was the origin of law, as the concept of law is innate, just like religion, truth, and the veneration of the better. From these innate ideas, custom emerged, which was subsequently established as law. Cicero differentiated between natural law, universal to all peoples (jus gentium), and civil law (jus civile), which pertains to a specific nation, a particular community (civitas). Therefore, civil law occupies a minor place within the framework of general law; what is contained in civil law may not exist in the law of nations (jus gentium), but everything in the latter must necessarily be present in civil law. The jus gentium was regarded as undoubtedly just and good, and it was often invoked. It is reported that there existed a rule whereby the accused could request not to be subjected to the law with all its rigor, so that the provisions of jus civile would not contradict natural justice (aequitas naturale) and the accused would not suffer from the injustice of the accuser. Cicero, along with others, opposed overly literal adherence to the law, adding as an argument the ancient proverb "summum jus - summa injuria" ("the highest law is the highest injustice"), implying that in courts, one should not neglect other considerations, as not everything inscribed in law corresponds to custom, nature, justice, and goodness. The just person is one who understands all of this.

Thus, the category of justice, encompassing elements of morality and concepts of natural law, has long been employed for the legitimization and critique of positive law. In our time, the flare of theoretical interest in the problem of justice was ignited by the American social and political philosopher John Rawls (1921-2003).

John Rawls's book "A Theory of Justice," first published in the United States in 1971, is still regarded as a classic work, as all subsequent discussions on justice invariably take into account the concept presented therein or build upon it. On the very first page, the author notes that "justice is the first virtue of social institutions, just as truth is the first virtue of systems of thought." He further argues that laws and institutions, if unjust, must be reformed or abolished. Every individual enjoys inviolability grounded in justice, which cannot be violated even in a flourishing society. For this reason, justice does not permit the loss of freedom for some to be justified by greater benefits for others. It is unacceptable for the hardships forcibly borne by a minority to be outweighed by a greater sum of advantages enjoyed by the majority. Injustice is tolerable only when it is necessary to avert an even greater injustice.

Rawls aimed to generalize the theory of the social contract to a higher level of abstraction, as presented in the works of Locke, Rousseau, and Kant. To achieve this, he cautions that we should not view the original contract as an agreement within any specific society, where people agree upon a particular form of governance. Rather, it pertains to a hypothetical supposition that principles of justice for the basic structure of society are the objects of the original agreement. This basic structure, referred to in the text, is the main subject of justice and is identified with the ways in which primary social institutions distribute fundamental rights and obligations and determine the allocation of advantages in social cooperation. By primary institutions, the author understands the constitution and the major economic and social systems; together, they define the rights and obligations of people and influence their life prospects—who they hope to be and how they hope to realize that aspiration. For example, the legal protection of freedom of thought and conscience, the free market, private ownership of the means of production, and monogamous family structures—these are all examples of primary social institutions.

Two key ideas are essential for understanding Rawls's concept of the social contract: the idea of the original position and the idea of the "veil of ignorance." The original position models a choice situation that ensures the freedom and equality of every participant, as the principles of justice must and can be defined only under conditions of freedom and equality. To realize this condition, a "veil of ignorance" is imposed on everyone in the original position, obscuring certain facts about themselves and the society in which they live. The idea of the "veil of ignorance" is based on the simple reasoning that a person, unaware of their future position in society, will seek to choose principles of social organization that provide just and favorable conditions for all. The original position can be interpreted as a process of forming an agreement, where each individual, acting rationally in their self-interest, strives for the most advantageous outcome for themselves. If individuals knew how social positions and natural abilities were distributed among them, the agreement would reflect certain inequalities and would favor the most fortunate and successful. Therefore, for a just agreement, a "veil of ignorance" is necessary. According to Rawls, this "veil" must also obscure people's understanding of the good.

What principles of justice will individuals choose from their original position? Rawls posits that they will select the principle of equal liberties and a principle comprised of two parts: the principle of differentiation and the principle of equal opportunity. According to the former, an individual will choose a society that maximizes individual freedom, as such freedom is the fundamental source of their social aspirations. The second principle of justice is articulated as follows: social and economic inequalities must be arranged so as to benefit the least advantaged (the principle of differentiation) and that the positions and offices associated with them are accessible to all, provided that equality of opportunity is faithfully observed (the principle of equal opportunity). These principles form a strict hierarchy: the first principle takes precedence over the second, while the principle of differentiation holds priority over the principle of equal opportunity.

1. Rawls has termed his work on justice a "theory," which in itself may provoke curiosity regarding the methodology of scientific inquiry: can a theory be established for something ephemeral, transcendent, and morally charged? A positive answer can be given only in one instance, namely, if it concerns a theory of an already realized version of justice. Indeed, Rawls's concept represents an attempt to theoretically reconstruct the state of justice within contemporary American society.

Law intersects with numerous other categories of general cultural and philosophical nature, among which some are core issues that have historically fueled philosophical and legal debates. Among these is the problem of freedom, which also possesses moral and legal dimensions. In philosophy, the category of "freedom" denotes the ability and capacity of an individual to think and act in accordance with their beliefs and desires, liberated from internal and external coercion. In a broader philosophical sense, discussions can arise regarding absolute and relative horizons of human freedom, constructing various models of the relationship between individuals and society concerning freedom. For instance, there are models such as the struggle for one’s freedom through conflict; escape from the world (escapism), which may manifest in retreating, say, to a monastery or a silent immersion in oneself (autism); and adaptation to the world, wherein an individual sacrifices some aspect of their freedom for the sake of greater freedom elsewhere.

When freedom is linked to law, typical, albeit somewhat childlike and naïve, questions arise: Do I have the right to do what I want? Is there space for me to freely choose what I desire? At first glance, it seems that legal norms, with their demands, limit freedom and thus contradict it. Yet this is not the case. Law, in its essence, serves the freedom of all individuals; it is the best path to each person's freedom in the presence of many others. However, let us not forget how the legal systems of different eras and countries vary in terms of the fundamental human freedoms— their granting and safeguarding.