Functions, validity and the strong natural law thesis

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Notes

1 A notable exception is Kenneth M Ehrenberg, ‘Defending the Possibility of a Neutral Functional Theory of Law’ (2009) 29 Oxford Journal of Legal Studies 91.

2 See, for example, Kenneth M Ehrenberg, ‘Functions in Jurisprudential Methodology’ (2013) 8 Philosophy Compass 447; Jonathan Crowe, ‘Law as an Artifact Kind’ (2014) 40 Monash University Law Review 737; Kenneth M Ehrenberg, ‘Law as Plan and Artefact’ (2016) 7 Jurisprudence 325; Luka Burazin, ‘Can There Be an Artifact Theory of Law?’ (2016) 29 Ratio Juris 385; Corrado Roversi, ‘Legal Metaphoric Artifacts’ in J Stelmach, B Brozek, and Ł Kurek (eds), The Emergence of Normative Orders (Copernicus Center Press 2016).

3 Kenneth M Ehrenberg, The Functions of Law (Oxford University Press 2016). Page references to this book appear in parentheses in the text.

4 Mark C Murphy, Natural Law in Jurisprudence and Politics (Cambridge University Press 2006) 10–11.

5 The most prominent contemporary defenders of the strong natural law claim are Lon Fuller, Robert Alexy and Michael Moore. See, for example, Lon L Fuller, The Morality of Law (Yale University Press, rev edn 1969) 39; Robert Alexy, ‘The Dual Nature of Law’ (2010) 23 Ratio Juris 23 167, 177; Michael S Moore, ‘Law as a Functional Kind’ in Robert P George (ed), Natural Law Theory: Contemporary Essays (Oxford University Press 1992) 198. For further discussion, see Jonathan Crowe, ‘Natural Law Theories’ (2016) 11 Philosophy Compass 91, 91–92; Jonathan Crowe, ‘Clarifying the Natural Law Thesis’ (2012) 37 Australian Journal of Legal Philosophy 159, 164–6.

6 Moore (n 5) 188.

7 Ehrenberg takes his cue here from the influential work of Ruth Millikan. See Ruth Millikan, Language, Thought and Other Biological Categories (MIT Press 1984) 17. For a related account of proper functions (placing more emphasis on their evaluative role), see Crowe (n 2) 749–50.

8 For detailed discussion of this possibility, see Crowe (n 2) 743–6.

9 For detailed discussion, see ibid 746–8.

10 Compare Jonathan Crowe, ‘Normativity, Coordination and Authority in Finnis’s Philosophy of Law’ in Mark Sayers and Aladin Rahemtula (eds), Jurisprudence as Practical Reason (Supreme Court Library Queensland 2013).

11 For further discussion of the concept of legal pluralism, see Jonathan Crowe, ‘The Limits of Legal Pluralism’ (2015) 24 Griffith Law Review 314.

12 Crowe (n 2) 750–3.

13 I will use the term ‘legally valid’ in what follows as synonymous with ‘counts or qualifies as law’. This strikes me as a natural way of understanding the term, although other interpretations are possible (cf 70). The term ‘invalid’ in phrases such as ‘invalid law’ can then be understood as an alienans. An invalid law, in other words, is really no law at all.

14 I am not assuming, for present purposes, any particular view of the metaphysics of artefact kinds. Compare Crowe (n 2) 738–40.

15 Compare Murphy (n 4) 57.

16 Crowe (n 2) 743.

17 ibid 748–50.

18 Aristotle, ‘Parts of Animals’ (W Ogle trans), in R McKeon (ed), The Basic Works of Aristotle (Random House 1941) 647, 650 [Bk I, Pt I, 640b35–641a2, 642a10–14] (emphasis added).

19 For a more nuanced analysis, see Crowe (n 2) 753–6.

20 Murphy (n 4) 10–11. See also Crowe, ‘Natural Law Theories’ (n 5) 91–2; Crowe, ‘Clarifying the Natural Law Thesis’ (n 5) 164–6.

21 Fuller (n 5) 96.

22 ibid 41–44.

23 ibid 38–39.

24 For further discussion, see Jonathan Crowe, ‘Between Morality and Efficacy: Reclaiming the Natural Law Theory of Lon Fuller’ (2014) 5 Jurisprudence 109.

25 Crowe (n 2) 753.

26 I am not sure whether the same result would follow on Ehrenberg’s account of law’s proper function. Arguably, however, a law of this kind would be incapable of generating institutional rights and duties, as it would not be accepted as normatively binding.

27 Crowe (n 2) 753–6.

28 This results in what I call a hybrid natural law theory (that is, one that combines the strong and weak views). See Crowe, ‘Natural Law Theories’ (n 5) 98–99.

29 Ehrenberg attributes this criticism to certain unnamed ‘legal positivists’ (70), but Finnis is its leading proponent. See John Finnis, Natural Law and Natural Rights (Oxford University Press, 2^nd edn 2011) 364.

30 Compare Crowe, ‘Natural Law Theories’ (n 5) 97; Jonathan Crowe, ‘Five Questions for John Finnis’ (2011) 18 Pandora’s Box 11, 16–17.

31 Crowe, ‘Natural Law Theories’ (n 5) 97–98.

32 Mark C Murphy, ‘The Explanatory Role of the Weak Natural Law Thesis’ in Wil Waluchow and Stefan Sciaraffa (eds), Philosophical Foundations of the Nature of Law (Oxford University Press 2013).

33 I have assumed in the preceding discussion that any law that fails in its function is defective as law. However, this is a simplification. The notion of defectiveness requires its own independent analysis. For further discussion, see Crowe (n 2) 753–6.

34 ibid 749–50.

35 See, for example, Risto Hilpinen, ‘Authors and Artifacts’ (1993) 93 Proceedings of the Aristotelian Society 155, 156; Amie L Thomasson, ‘Realism and Human Kinds’ (2003) 67 Philosophy and Phenomenological Research 580, 592–3.

36 Compare Crowe (n 10).