Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process'

On the Status of Rights

Reviewed by: Natural Law, Laws of Nature, and Natural Rights. Continuity and Discontinuiy in the History of Ideas Brian Tierney Natural Law, Laws of Nature, and Natural Rights. Continuity and Discontinuiy in the History of Ideas. By Francis Oakley. (New York: Continuum Press. 2005. Pp. 143. $29.95.) This excellent book provides a sophisticated but accessible introduction to some fundamental problems in the history of natural law thinking, and the writing throughout is elegant, lucid, and persuasive. Oakley's central argument is that a major shift occurred in the fourteenth century and that it influenced both the scientific and the moral philosophies of the succeeding age. A byproduct of the argument is a reminder that the traditional periodization of Western history into ancient, medieval, and modern is "more of a hindrance than a help" in the study of intellectual history (p. 81), an observation that will be applauded by many medievalists. [End Page 111] Historians typically treat the physical laws of nature as conceptually distinct from the natural law that directs our moral behavior. But Oakley challenges this sharp distinction. He is not concerned to refute Hume's is-ought argument, that we cannot derive moral propositions from factual ones. His argument is rather that the same underlying set of ideas informs both kinds of thinking and that the physical laws of nature can provide a sort of "intellectual template" to which the natural moral law conforms (p. 70). Underlying Oakley's whole argument is his concern with a persistent tension between the Greek and Hebrew sources of Christian thought. On the one hand we have the Greek idea of a divine reason immanent in an eternal cosmos, a reason reflected also in the workings of human reason. On the other hand stands the God of Abraham and Isaac and Jacob, an all-powerful, willful God of untrammeled freedom who made the universe from nothing and out of his own good pleasure. Oakley shows how the church fathers, especially Augustine, and then the scholastic theologians, especially Aquinas, sought to reconcile the two ideas. Aquinas envisaged an eternal law, a manifestation of divine reason directing all created beings to their due ends, a ground of both the physical laws of the universe and the natural moral law known to man. As Oakley notes, in Aquinas the fit between the templates of moral and physical natural law is very close. But a later generation of theologians, prominent among them William of Ockham, saw in this way of thinking an unacceptable restraint on God's absolute freedom and omnipotent will. Ockham argued that the characteristics of the existing universe did not flow by any kind of necessity from the reason of God; God could have made a different universe with different laws of motion and different rules of morality. And this teaching, Oakley argues, helped to shape the new scientific thought of the sixteenth and seventeenth centuries. In a contingent universe one could not explain the way things behaved by pure reason, by hypothesizing about natural ends and occult essences. The only way to understand the material world was by observation and experiment and mathematical formulations of the resulting data. The problem is more complicated when we consider the moral natural law. Ockham's teaching that moral norms depended entirely on the will of God was reflected in some natural law theories of the early modern period. But alongside this doctrine Ockham also presented a "non-positive moral science" based on reason and experience, and this too had echoes in later thought. In Ockham's own later political writings, where he discussed explicitly the varieties of natural law, he appealed persistently to right reason as a guide to human behavior. Oakley explains the dichotomy by pointing to the common medieval distinction between the absolute and ordained powers of God. However, Oakley's argument here leaves open a much-disputed question that he raises but does not finally answer, the question whether Ockham's voluntarist theology did in fact exercise any significant influence on the content of his later political thought and his teachings there on natural law. [End Page 112] In a last chapter the author considers the emergence of a doctrine of...

The doctrine of due process has a dual meaning: substantive and procedural. Substantive due process refers to constitutional requirements (natural law requirements) for laws and other normative legal acts of the state to have a legitimate purpose, to be fair, reasonable and justified in terms of both content and application, and to be proportionate to the achievement of a legitimate purpose, i.e. a person cannot be arbitrarily ‘deprived of life, liberty and property without due process of law’, which protects the fundamental rights of the individual from arbitrary actions by the state. A person whose fundamental rights are violated by the state has the right to an independent and impartial court that ensures their procedural rights and guarantees (the right to be heard; the right to know what they are accused of; the right to access case materials; the presumption of innocence; the burden of proof in criminal proceedings rests with the state, etc.), i.e. taking into account the procedural aspect of due process. It is precisely the procedural aspect of due process that the legislator refers to in Article 2 of the Criminal Procedure Code of Ukraine: ‘The purpose of criminal proceedings is to ensure that due process is applied to every participant in criminal proceedings.’ According to the practice of the Constitutional Court of Ukraine and the European Court of Human Rights, the main components of the presumption of innocence are the burden of proof, which lies entirely with the prosecution; the prohibition of placing the burden of proof on the accused; in dubio pro reo (all doubts are interpreted in favour of the accused); the prohibition of public statements by officials about guilt prior to sentencing; the right to remain silent; the inadmissibility of presumption of guilt in procedural decisions; the presumption remains in force until the verdict becomes final. The constitutional principle of the presumption of innocence is an integral part of the doctrine of due process. The Constitutional Court of Ukraine and the European Court of Human Rights consider them in conjunction, in particular: violation of the presumption of innocence, including in terms of the standard of proof ‘beyond reasonable doubt’ by the state, automatically entails a violation of Article 6 of the ECHR (the right to a fair trial).

The disintegration of due process of law was somewhat advanced prior to October, 1937, as a result of judicial reversals of opinions on price-fixing and minimum wage legislation. As the process of transformation continued, it took four major forms. They were: (1) the withdrawal of substantive due process as a limitation on social legislation, taxation, rate-making, and regulatory action generally; (2) an expansion of substantive due process in cases involving freedom of expression, assembly, and religion, including rights of labor through the application of new concepts of freedom of speech; (3) the curtailment of procedural due process as a limit on administrative action except in cases involving the deportation of aliens; and (4) the use of procedural due process in such a way as to provide greater protection on the whole to persons accused of crime. This transformation has been accompanied by changed assumptions which accommodate governmental activity.Thus, on the assumption that so long as one is free to possess the fruits of agricultural production there is no denial of due process of law, the Court has sustained rigid restrictions on the marketing of agricultural products even when retroactively imposed and when the quotas were so applied as to include the wheat produced by a farmer for his domestic consumption. On a further assumption that since Congress has the power to decide the issue of the advantages and disadvantages of holding companies, the Court not only sustained the Public Utility Holding Company Act, but in so doing asserted that the judiciary could not question the propriety of Congress' decision.

The article analyzes the investigating judge’s rulings and the process of their issuance with a view to ensuring compliance with the due process of law. Due process of law in criminal proceedings means the procedure (rules, algorithm) of actions and procedural decisions necessary to fulfill the tasks of criminal proceedings regulated by the Criminal Procedure Law (CPC), which is provided and used by the subjects involved in criminal proceedings and is available to the subjects involved in the criminal procedure sphere. According to the author, the procedural status and functions of an investigating judge in criminal proceedings determine the specific (distinctive) relationship of his/her activities with the category of “due process of law”, which is caused by the exercise of judicial control over the observance of the legal procedure provided for by law during pre-trial investigation and international cooperation in criminal proceedings. The level of observance of due process during the pre-trial investigation and international cooperation in criminal proceedings is reflected in the decisions of the investigating judge. Also, the decision of the investigating judge must be made in accordance with the established rules - in due procedure and form. It is substantiated that despite the fact that an investigating judge is legally enshrined as a subject of making rulings in criminal proceedings (amendments to Article 369 of the CPC, 2019), a number of rule-making approaches to this activity need to be adjusted. The author proposes to understand the decision of an investigating judge as a judicial act in the form of a ruling on procedural issues within the competence of an investigating judge aimed at fulfilling the tasks of criminal proceedings and exercising the function of judicial control in pre-trial investigation in accordance with due process of law, which establishes the rights and obligations for the subjects of criminal procedural legal relations involved in a particular procedural activity (investigative (search) actions, measures to ensure criminal proceedings, extradition). It outlines the peculiarities of the requirements to the investigating judge’s rulings and the procedure for their issuance. The author’s vision of improving the provisions of the CPC of Ukraine in the context under study is expressed.

Joseph J. Senna, MSW, JD, is Associate Pro fessor, College of Criminal Justice, Northeastern University, Boston, Massachusetts. Today the concept of due process of law is being applied increasingly to protect in dividual rights when the government seeks to deprive a person of life, liberty, or prop erty.1 The trend toward a wider use of due process to prevent abuse of power has spread to many fields in the human ser vices, especially public welfare, juvenile delinquency, and corrections. More than ever before, due process of law has been used in these settings to challenge various types of arbitrary action such as the termi nation of aid by welfare officials or the imposition of punishment on prison in mates. Perhaps because consistent judicial intervention has called attention to grave infringements of human rights in the fields mentioned and in mental health—particu larly over the past decade—these fields have become open to severe criticism and change by those providing or receiving services. Prior to the 1960s the judicial system usually refused to become involved in arbi trary administrative practices in human services. Today the courts have discarded the traditional hands-off doctrine and they readily review grievances of individuals in order to insure equal protection and due process of law. The judicial system has begun to recognize that persons on welfare, patients in mental hospitals, juveniles be fore a court, and inmates in correctional facilities have basic rights. Those who are planning and carrying out programs and services are now ques tioning procedures followed for many years because these procedures may vio late the constitutional rights of those in volved. Social work practitioners and other professionals who are in the field of human services and who are providing the services ought to be aware of the extent of judicial intervention, which is occurring increasingly when basic human rights are violated. Also, judicial solutions to human service problems have an impact on overall agency administration, types of programs, and eligibility requirements, as well as pro fessional education.

In Natural Law and the Antislavery Constitutional Tradition, Justin Buckley Dyer provides a succinct account of the development of American antislavery constitutionalism in the years preceding the Civil War. Within the context of recent revisionist scholarship, Dyer argues that the theoretical foundations of American constitutionalism - which he identifies with principles of natural law - were antagonistic to slavery. Still, the continued existence of slavery in the nineteenth century created a tension between practice and principle. In a series of case studies, Dyer reconstructs the constitutional arguments of prominent antislavery thinkers such as John Quincy Adams, John McLean, Abraham Lincoln and Frederick Douglass, who collectively sought to overcome the legacy of slavery by emphasizing the natural law foundations of American constitutionalism. What emerges is a convoluted understanding of American constitutional development that challenges traditional narratives of linear progress while highlighting the centrality of natural law to America's greatest constitutional crisis.

The first principles of law, state and government that, for Hobbes, had their embodiment in the condition of commonwealths were principles which he saw as given in what he stated to be the fundamental laws of nature. At the same time, the laws of nature were presented by Hobbes as laws that applied to commonwealths in the sphere of their mutual external relations, and hence as laws which, in their international application, were to be thought of as being identical with the substance of the law of nations. In this chapter, the concern lies with the principles of natural law that Hobbes specified in their status as principles of the law of nations, and so with the view that Hobbes took of international law and of its essential constituent elements. Thus there is consideration given to the idea of the international state of nature, as the form of society holding among commonwealths in which the principles of natural law were regarded by Hobbes as having application. Also, there is detailed treatment provided of the principles that Hobbes gave expression to with his statement of the laws of nature, as these served to define what stand as the leading substantive principles of public international law.

Reviewed by: Debating Medieval Natural Law: A Survey by Riccardo Saccenti R. S. White Saccenti, Riccardo, Debating Medieval Natural Law: A Survey, Notre Dame, University of Notre Dame Press, 2016; cloth; pp. xiii, 155; R.R.P. US $45.00; ISBN 9780268100407. Natural law is an ancient and abiding way of thinking about the relationship between morality and law. Extremely simple in its premise, that knowledge of the difference between right and wrong is innate and 'written on the heart' as a way of preserving existence, the doctrine has led to vast amounts of commentary on its endless complexities and its very existence or otherwise. As Aquinas put it, 'Good is to be done and pursued, and evil is to be avoided'. However, natural law was also argued for in pre-Christian times, by Plato, Cicero, and others, using not Christian notions of God's divine purposes nor conscience, but reason alone to deduce its existence. Within the later Christian cosmology, conscience was considered central as the innate, God-given faculty, but some Christian thinkers did not draw the conclusion that natural law itself is also innate, insisting instead that God's emissaries on earth are needed to pass down divine law. Meanwhile, after its heyday in medieval and early modern times there have been revivals of natural law and its more civic equivalent, natural rights, which in turn underpinned human rights. Throughout history political applications have been based on the justification offered by natural law for resistance to unjust positive (man-made) laws and for issues like conscientious objection, since the argument runs that positive law must be consistent with natural law or it is no law at all, and can—indeed in some cases must—be broken. However, it needs to be said that Riccardo Saccenti's book is probably not the best place for beginners. Despite its inviting subtitle (A Survey) and its brevity (eighty pages of text, and almost the same of notes), the account presupposes some acquaintance with the mountain of scholarship on the subject. In particular, its intended audience is most likely those in the Natural Law Forum at Notre Dame, which has its own important journal. The subtitle could really be limited to 'A survey of twentieth-century literature' on medieval natural law theories, rather than implying a history of natural law. Furthermore, given the medieval lens, generally speaking the primary concentration is on theological approaches rather than historical, secular, or philosophical ones. Even more specialized, there is a focus on a particular medieval debate on distinctions between lex naturalis (natural law) and ius naturale (natural rights). Within its chosen parameters, Debating Medieval Natural Law is a challenging and important analysis. [End Page 243] R. S. White The University of Western Australia Copyright © 2019 Parergon

Due Process Challenges in Environmental and Natural Resources Law

Widely divergent views exist among modern scholars concerning the relationship between natural law and natural rights. Some hold that the two concepts are logically incompatible with one another. Others maintain that natural rights were derived from natural law in the work of Aquinas or, alternatively, that natural law was derived from natural right in the work of Hobbes. All these views seem open to criticism. An alternative approach is suggested by a consideration of the idea of permissive natural law.

Francisco Suárez (1548–1617) lived in the period after the Council of Trent when there was much discussion over religious freedom for non-Christians as well for as non-Catholics living in Catholic territories. This essay examines Suárez’s view of the different types of unbelievers and the possibility of their salvation. It explores Suárez’s belief that Non-Christians can enjoy freedom of religion in Catholic territories as long as their practices do not violate the natural law. The essay also examines Suárez’s attitude toward Non-Catholic Christians. Although these Christians enjoy freedom from coercion to join the Catholic Church, they can be subject to certain restrictions. Suárez lived during a time when there was much discussion over the natural rights of unbelievers. In the 1500s, the Dominicans, Bartolomé de las Casas (1474–1566) and Francisco de Vitoria (c.1483–1546) had already defended the natural rights of the American Indians who suffered abuse on the part of some of the Spanish conquistadors. Suárez likewise defended the natural rights of the Indians, and he strongly opposed any attempts to enslave them or force them to convert to the Catholic faith. Suárez, though, also considered the rights of non-Christians such as Jews and Muslims living under Christian rule. This article examines what Suárez says about human freedom and the universality of the natural law in De legibus, book III. Then it will consider how in De fide, tract. I, Suárez applies human freedom and the natural law to the rights of non-Christians living under Christian rule and the rights of Christians living under non-Christian rule. This essay attempts to understand what obligations to religion are demanded by the natural law and how violations of the natural law (e.g. blasphemies, persecutions) can result in limits to religious freedom. It will be argued that Suárez, in some respects, anticipates the teaching of Vatican II on religious freedom. The Council recognized both freedom from religious coercion in civil society as well as the demands of the moral law regarding the rights of others and the duties toward them (Dignitatis humanae, 7). Key-words: Suárez, natural law, religious freedom, salvation.

It was recognized that it was critical to the process of national reconciliation and the maintenance of peace in Sierra Leone that the Special Court for Sierra Leone (SCSL) be a strong and credible court operating in accordance with international standards of justice, fairness, and due process of law. This article assesses the fulfilment of this mandate through an examination of the fairness of the RUF trial as illustrated through two issues: the interpretation of the accused's right to be informed of the nature and cause of the charges and the approach taken by the Trial Chamber and the Appeals Chamber in assessing the evidential links between the accused and the crimes pursuant to the joint criminal enterprise (JCE) mode of liability. First, the article discusses the decisions that led to the omission of 250 charges from the indictment and their introduction into the trial through late evidential disclosures after the commencement of the prosecution case. Second, the article examines the way in which the charges, in a majority of cases, were found to be part of a common criminal purpose without a sufficient nexus being established to the accused or any member of the alleged JCE. The article concludes that the judicial approach to these issues abandoned the safeguards contained in the jurisprudence developed at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, giving rise to a trial that failed to adhere to international standards of justice, fairness, and due process, leading to manifestly unjust convictions.

Relations between social theory and natural law have not figured prominently in scholarly debates, and the case for their interconnections, which is far from self-evident, needs explicit justification. The aim of this special issue, which is to explore linkages between social theory and natural law, requires that we take a step back and redefine the ways in which these traditions are conventionally viewed. We see natural law as a heterogeneous intellectual tradition whose core lies in the question of universalism. We can differentiate between traditional and modern, conservative and radical, religious and secular forms of natural law, as well as between natural law and natural right; but in all cases the problem of universalism remains central. We see social theory as a modern intellectual programme that, over the past two hundred or so years, has sought to understand the rise and main features of a number of socio-historical trends that still very much configure the world in which we live: capitalism, democracy, the international system of states, and the differentiation of spheres of social life. The history of social theory’s relations to natural law builds on a distinction between the difficult but often intimate relation to natural law that social theory has actually experienced, and secondary reconstructions of social theory that read as if social theory has definitively moved beyond natural law and established in its place a scientific perspective. Our special issue confronts the latter view by explicitly addressing their interconnections. We should like to make explicit four related aspects of the relationship between these two traditions. First, natural law brings the normative into social theory based on some kind of contrast between actually existing society and an ideal society organized according to the laws of nature. Both traditions seek to understand the tensions between description and normativity. Second, social theory brings history into natural law by emphasizing human agency in the making of history and the changing circumstances under which human beings make history. It brings contingency into natural law by emphasizing that social life is not organized according to fixed laws of nature or history. An ideal society is neither the starting point nor the endpoint of history. Third, the idea of natural law only Editorial

In Natural Law and Natural Rights, John Finnis delves into the past, attempting to revitalise the Thomist natural law tradition cut short by opposing philosophers such as David Hume. In this article, Finnis’s efforts at revival are assessed by way of comparison with—and, indeed, contrast to—the life and art of musician David Bowie. In spite of their extravagant differences, there exist significant points of connection that allow Bowie to be used in interpreting Finnis’s natural law. Bowie’s work—for all its appeals to a Nietzschean ground zero for normative values—shares Finnis’s concern with ordering affairs in a way that will realise humanity’s great potential. In presenting enchanted worlds and evolved characters as an antidote to all that is drab and pointless, Bowie has something to tell his audience about how human beings can thrive. Likewise, natural law holds that a legal system should include certain content that guides people towards a life of “flourishing”. Bowie and Finnis look to the past, plundering it for inspiration and using it as fuel to boost humankind forward. The analogy of Natural Law and Natural Rights and Bowie’s magpie-like relationship to various popular music traditions ultimately reveals that natural law theory is not merely an objective and unchanging edict to be followed without question, but a legacy that is to be recreated by those who carry it into the future. Law’s instruments of critique must not forget these transformative qualities.