1.28.15Readings: Antigone (play) & Fuller “The Case of the Speluncean Explorers”The Case of the Speluncean Explorers - thought experimentThe case involves five explorers who are caved in following a landslide. They learn via intermittent radio contact that, without food, they are likely to starve to death before they can be rescued. They decide that someone should be killed and eaten so that the others may survive. They decide who should be killed by throwing a pair of dice. After the four survivors are rescued, they are charged and found guilty of the murder of the fifth explorer. If their appeal to the Supreme Court of Newgarth fails, they face a mandatory death sentence. Although the wording of the statute is clear and unambiguous, there is intense public pressure for the men to avoid facing the death penalty.The article offers five possible judicial responses.Each differs in its reasoning and on whether the survivors should be found guilty of breaching the law.Two judges affirm the convictions, emphasizing the importance of the separation of powers and literal approach to statutory interpretation.Two other judges overturn the convictions; one focuses on "common sense" and the popular will while the other uses arguments drawn from the natural law tradition, emphasizing the purposive approach.A fifth judge, who is unable to reach a conclusion, recuses himself. As the Court's decision is a tie, the original convictions are upheld and the men are sentenced to death.Fuller's account has been described as "a classic in jurisprudence"[2] and "a microcosm of [the 20th] century's debates" in legal philosophy.[3] It allows for contrasts to be drawn between different legal philosophies, with the main two being natural law and legal positivism. In the 50 years following the article's publication, a further 25 hypothetical judgments were written by various authors whose perspectives include natural law theory, consequentialism, plain meaning positivism or textualism, purposivism, historical contextualism, realism, pragmatism, critical legal studies, feminism, critical race theory, process theory and minimalism.[4]Necessity is not a defense for murderAncient and Contemporary Natural Law: Aquinas and Finnis2.2.15Natural law theorists differSome depend on the existence of God and religious texts as inspiration or divine revelation as the basis for lawsOthers rely on an understanding of human nature, human capacity to reason, or human social biological needs.Natural law – which facts about the world must be taken as guides to law?What we might call real laws are those laws which meet certain standards – usually moral standards.St. Thomas AquinasBest known writer of the Roman Catholic natural law traditionSupposes that certain Christian values are self evidently good and valuable.Has a theological view (view of which accepts the existence of God and asks what sort of world God has created)Much of his argument can be accepted on rational grounds without reference to faith – his views appeal to both Christians and non Christians.He recognizes that there may be more than one way to solve a particular social problem and he can accept that different cultures may choose to place different limits on behavior as required by different social situations.If a law is real and meets the requirements of natural law it is morally binding.You ought to obey it because the law is for the common good.You have to obey because its also a part of God’s will and you are a subject of God.Aquinas Definition of LawStates the essence or fundamental nature of lawshe was concerned with defining the nature of laws rather than the nature of a legal system unlike Finnis.A law is a result of reasoning about how to reach the common good. (the good for everyone) A law is made by a person of authority.Believes that humans were created by God in Gods own image and gave humans certain characteristicsCharacteristics being our ability to reason or rationalize.We tend to naturally do good thingsWhen we use our reasoning correctly as we pursue self evidently good things and attempt to make laws to achieve the common good, we are said to be using “right reason” and are participating and sharing Gods reasoning and rational ordering of the world.Natural law is in each personTwo types of positive lawReal law – meet the requirements of right reason: they are reasonable standards of conduct which aim at serving the common good.Real laws are just because they meet the requirements of justiceDefective law – Laws that are unjust, can justifiably be disobeyed. (MLK ex) Laws that fail.Laws are enacted for no private profit but for the common benefit of the citizens.Is man competent to make laws?On the contrary a law is an ordinance of the people whereby something is sanctioned by the elders together with the community.Is natural law a habit?It is in infants and in the damned who cannot act by it therefore natural law is not a habitNatural law remains unchangeableProfessor John FinnisBest known contemporary defender of natural law theoryHe thinks a philosophical investigation of law must do more than simply describe certain features of law.Finnis does not appeal to Christian theologyArgues that careful attention to the requirements of social life and individual fulfillment show that at least some values are good in and of themselves.Laws must advance these values to best serve the goal of human flourishingFinnis suggests that practical reasoning cannot proceed in just any way - crucial part of his argument.Proposed moral or legal rules must meet standards of practical reasonableness.Practical reasonableness can be seen as a sort of blend of pure rationality and perception of basic goods.Practical reasonableness is not simply rationality because what is rationally possible may be prohibited as unreasonable.Practical reasonableness is about rationally balancing our pursuit of different goods while respecting the basic value of each of those goods as necessary ingredients in a good individual and a good societyWhen we treat people differently we must do so for good reasons not arbitrarily.Basic goods are fundamental in our thinking about how we ought to conduct ourselves and we are never justified in sacrificing these goods entirely.Finnis ArguesMorality and law are the result of applying the standards of practical reasonableness to question how we ought to conduct ourselves – keeping mind what is