Natural Law Theory (cont'd)

The case of the grudge informer

Place: Germany

Time: WWII

Problem: Johann Schmidt finds out that his wife once had an affair with a Jewish neighbour (who has managed to avoid detection). Schmidt denounces the man and testifies against him. The man is then executed in accordance with Nazi law.

Question: after the war is over, should we be able to try Schmidt on charges of murder/manslaughter? (Did he do anything illegal?)

Or is he allowed to argue that he was acting in accordance with the law of the land as it existed at that time?

Question: is there some moral standard by which we are bound, even in the absence of (or in contrast to) positive human law?

What kind of a thing is Natural Law?

Is it like the Laws of Physics (e.g. to every action there is an opposite and equal reaction)?

The idea of Natural Law is some kind of "normative" standard (i.e. how we OUGHT to behave).

And we OUGHT to behave in accordance with our "human nature" (at a minimum we are not required to what we physically cannot do).

But what is "human nature": requires a search for common ground

* notice that people are rational

* notice that people don't like to be killed, or hurt

* notice that people generally think it is wrong to hurt children for the sake of entertainment

* notice that there are various values that people seem to share across time and cultures.

* make the argument that these values are available to anyone who honestly asks the question: "what is the right thing to do, under these circumstances?"

Is this likely or convincing, given the diversity of opinion that exists in the world? Does rationality give us the right answer?

Diversity of opinion and belief makes the existence of one, universal, ahistorical standard unlikely?

BUT, consider the following:

Section 1 of the Charter says that limitations on rights are permissible if those limits are "demonstrably justified in a free and democratic society"

(there is even a test for checking whether something meets this standard [Oakes test])

Isn't this a kind of rational standard that applies to all rational persons?

Doesn't a government that fails to live up to this standard fail to make law?

Is it thus possible to see the Charter of Rights and Freedoms as something like a Natural Law element introduced into Canadian law?

But could the Charter be a way for certain people to impose their morals/religion/etc. on others through Parliament?

So: what is the connection between law and morality?

Complicated

Next time: legal positivism as the view that law is just whatever the authorities say it is.