Are Laws History?
Bowen Map of the World (1744). Wikimedia Commons.
Law and justice have always fascinated me. I vividly remember my Year 4 teacher telling my mum that if I wanted friends, I had to stop dibber-dobbing. But my sense of justice was the primary obstacle to breaking this habit. At that time, I thought that the rules were the rules and I merely appreciated their role in our classroom; now, growing older, I find a worthwhile companion in the law. I shall attempt to, in this essay, provide an answer to the great ‘Why?’ of the law. I intend to prove that the values of law are in our human nature. This theory is not new; it has been called natural law. This school of thought stands against the philosophy of legal positivism. Legal positivism is characterised that a law is a law because it has been made valid by a legal mechanism, regardless of its moral correctness. [1] Justice shall be a fundamental concept in this article; thus it is imperative that it be defined. Per Warren CJ, although justice can be defined differently across our society, a generally accepted definition is that justice results in an unbiased and fair outcome for all parties when resolving disputes. [2] Do all human systems observe a similar approach and have they all arisen from similar values? How different are they at first glance, and are they really that different at all?
Ancient Greek Philosophy and Law
Let us begin with the ancient Greek approach to the law. The lasting legacy of numerous ancient Greek philosophers is felt to this day, and there is a general trend to acknowledge the importance of natural law and the values that it creates within society. Numerous philosophers subscribed to the idea that the law should not be changed haphazardly, as it was derived from human nature, which itself could not be changed. [3] Socrates, who lived in the 5th century BC, declared himself a slave to the law, affirming the notion that laws stood over society, and at times were greater than the individual. [4]
Specific examples can be found across the entire span of ancient Greek history. Although these individuals generally held different views and standings as to the particulars of the law, their common belief in natural law demonstrates an underlying consistency.
Consider Aristotle, who defined equity as the virtue of seeking to achieve justice for an individual. [5] This feature is consistently found as a common attribute across many legal systems. [6] Heraclitus claimed that law is reason and reason is universal. [7] The law, he believed, flowed naturally from reason. Theognis considered that people have a real embedded feeling of justice, which was implanted by humans and fundamentally universal. [8] Plato, who considered the soul a product of reason, spirit, and desire, believed that one’s view of justice was closely tied to the quality of one’s soul. [9] He asserted that justice remedies wrongs, and that justice is the proper state of the human soul, inherent in human nature when viewed in its entirety. [10] Similarly, when these rules were broken, punishments should achieve justice and retribution for the individual who had been wronged. [11] In this vein, the Athenian government implemented a jury system to hear disputes known as the dicastery, which entrusted the duties of resolving disputes and achieving justice to the common man. [12]
Although ancient Greek philosophy is only one of many schools of thought, its lasting legacy demonstrates its relevance through to the modern day. It is telling that, across a variety of opinions, views, and backgrounds, ancient Greek thinkers widely held the belief that natural law was the basis upon which laws were created. The works of Plato and Aristotle affirm the relationship between the law and human nature: a mild curiosity for now.
Sharia Law
Sharia law is an Islamic system of law which seeks to incorporate the message of the Koran into a legal system. [13] Given the relative absence of Islam in the western world, it can be distinguished against other systems of law to further explore how natural law values can extend across borders. Sharia law focuses on five main goals: sound religious practice, life, health, the family, and personal and communal wealth. [14] Numerous Islamic-majority nations draw upon Sharia law as their main source of law. [15]
The concepts of justice and values are present in Sharia Law, given that there is an explicit focus on achieving justice between parties and seeking fair outcomes, although this is couched in Islamic theological terminology. [16] Nonetheless, inequities can prevail within Sharia law; for example, the legally unregulated operation of Sharia law when governing divorce has been criticised by various legal bodies for not guaranteeing fairness and justice. [17] However, this does not detract from the fact that Sharia law is a self-consistent body of law that considers itself natural, given that it is bound by the teachings of the Koran. Although Sharia law seeks to achieve justice in the theological framework set out in the Koran, it shares a common ground with other legal systems. Sharia law relies upon a judge with extensive experience in Sharia and Islamic jurisprudence; such qualities are particularly emphasised. Sharia legal thought has less to do with explicit statutory interpretation; instead, it seeks to build on the overall jurisprudence and concept of Sharia in relation to Islamic theological frameworks.
Consonant with other legal systems, Sharia law renders punishment in order to create fair and just outcomes with respect to its given values and jurisprudence. Although Sharia law appears completely different to other legal systems at first glance, its philosophical justifications resemble similar systems which are based on the core concepts of justice and fairness. However, Sharia law’s dependence on Islamic theology may be a limiting factor of the Sharia in comparison to the progressive principles espoused by modern western courts. [18] Nonetheless, this does not disprove the effectiveness of Sharia law of meting out justice if it serves a community in which the messages of the Koran have been broadly accepted.
Although the details of the concepts of justice and reason under Sharia law are distinct from western jurisprudence, there is a firm and lasting belief that outcomes should be determined by a third party. This common ground can be seen as a cross-cultural piece of evidence, demonstrating how the concept of justice and legal systems are, in fact, inherent to human nature.
Aboriginal Australian Law
Aboriginal Australian law was, prior to British colonisation, socially isolated from the rest of the world. In spite of this, the legal systems that arose within continental Australia were furnished with many of the values and traits of other systems, despite the vast geographical distance. Aboriginal legal systems were complex, and they were passed down through the Elders and the Dreaming. [19] In practice, Aboriginal law generally relied upon the counselling of an Elder in order to resolve disputes; a parallel can be drawn with the various other legal systems explored. [20] Present in Aboriginal jurisprudence was the relationship between justice and retribution or payback, especially if a traditional law was violated. Aboriginal laws often mirrored our own understanding, with common moral principles being demonstrated through the criminalisation of certain actions: homicide, physical assault, and theft. Aboriginal peoples also considered the usurpation of ritual privileges and duties as violations of law. This can be directly translated to other factions of our modern law. [21]
Despite the social isolation of Aboriginal Australians from the rest of the world, their reliance on Elders as adjudicators of the laws, punishments, and functions of their legal systems can be compared to various other systems worldwide. This, in concert with the previous case studies, seems to indicate a deep connection between human nature and a conception of justice.
Early English Law
As the Australian system has consequently developed from early English law, it would be prudent to assess its jurisprudential bases. The early English courts followed a rigid common law system, wherein consistency was the paramount objective of the courts. Judges, in their day-to-day work, applied precedent in determining cases. However, the comparative nature of such judgments occasionally resulted in unfair decisions and failed to achieve just outcomes. This, consequently, was not a true representation of justice. [22] In an attempt to resolve this issue, the Court of Chancery was established. As a body of equity, the Chancery Court was capable of rectifying decisions in order to make fair and just outcomes regardless of the common law precedent. [23]
The dual court system, in particular the establishment of the court of equity, demonstrates that the concept of justice is embedded in human nature, owing to a commitment to fairness, justice, punishments, and other values that exceeded previously existing procedures.
Modern Australian Law
The modern Australian legal system is built upon our inheritance of the British system, which itself was an evolution of the early English law. Australia’s system purports itself to be a system which seeks to achieve justice and fair outcomes for society. However, with so many laws in different areas of practice, even soft legal positivists have argued that the continuity between us and our natural law past has been extinguished, given the exclusive authority of Parliament. Such a question may be adequately responded to with an inquiry into why the parliamentarians sought to pass the bill.
Even the most boring parts (arguably) of our legal system, tax law, has a purpose with natural law values in mind. A tax income statement is a reflection of the justice attributed to proper contribution to a common statehood. To this end, even modern laws appear to be a descendant of those ancient natural law values.
Conclusion
As I examined the common grounds of these seemingly disparate systems, their differences, although truly vast, seemed a pittance in relation to their similarities. Although each system differs in the specific substance and procedure, their core concepts and values of justice, fairness, punishments, and an adjudicative third party remain consistent. In two thousand years, we haven’t been able to separate ourselves from the values stemming from the natural law; perhaps, just perhaps, they are inherent to human reason and to human nature.
[1] Raymond Wacks, Philosophy of Law: A Very Short Introduction (Oxford Academic Books, 1st ed, 2006) ch 2.
[2] Marilyn Warren, ‘What is justice?’ (Speech, Newman Mannix College, 20/08/2014).
[3] Maurice LeBel, ‘Natural Law in the Greek Period’ (1948) (2) Natural Law Institute Proceedings, 3, 8.
[4] Ibid 8.
[5] Andrew Sucre, ‘Aristotle’s Conception of Equity in Context’ (Thesis, University of Missouri, 2013).
[6] Allan Beever, ‘Aristotle on Equity, Law and Justice’ (2004) 10(1), 33, 33-50; Anton-Hermann Chroust ‘Aristotle’s Conception of Equity (Epieikeia)’ (1942) 18(2) Notre Dame Law Review, 119, 119-28.
[7] Ibid 20.
[8] Ibid 12.
[9] Internet Encyclopedia of Philosophy, Plato: The Laws (Web Page) <https://iep.utm.edu/pla-laws/>; https://plato.stanford.edu/entries/ancient-soul/
[10] The Paideia Project, Plato’s Concept Of Justice: An Analysis (Web Page) <https://www.bu.edu/wcp/Papers/Anci/AnciBhan.htm.>
[11] James Allsop, Rules And Values In Law: Greek Philosophy; The Limits Of Text; Restitution; And Neuroscience - Anything In Common? (Paper) <https://www.fedcourt.gov.au/__data/assets/pdf_file/0008/45476/Allsop-J-20170329.pdf>; Danielle Allen, Punishment in Ancient Athens (Web Page, 2003) <https://www.stoa.org/demos/article_punishment@page=5&greekEncoding=UnicodeC.html>
[12] https://www.britannica.com/topic/dicastery
[13] Baudouin Dupret, What is the Sharia (C. Hurst & Co. (Publishers) Ltd., 2018), 15-31.
[14] Learning For Justice, What is the Truth About American Muslims? Sharia, (Web Page) <https://www.learningforjustice.org/magazine/publications/what-is-the-truth-about-american-muslims/sharia>, 19.
[15] The Business Standard, Countries that follow Sharia Law (Web Page, 2021) <https://www.tbsnews.net/world/countries-follow-sharia-law-297286>.
[16] Australian Human Rights Commission, Intersections between the Law, Religion and Human Rights Project (Literature Review, 2011); Rebecca Barber, ‘Sharia Law, Traditional Justice and Violence against Women: Lessons from Sudan’ 2019 14(2) The Journal of Human Rights, 247 , 248. <https://humanrights.gov.au/our-work/projects/intersections-between-law-religion-and-human-rights-project>.
[17] Rebecca Barber, ‘Sharia Law, Traditional Justice and Violence against Women: Lessons from Sudan’ 2019 14(2) The Journal of Human Rights, 247.
[18] https://www.tandfonline.com/doi/full/10.1080/23311886.2021.1925413
[19] Working with Indigenous Australians, The Law and the Lore (Web Page) <http://www.workingwithindigenousaustralians.info/content/Culture_4_The_Law_and_the_Lore.html> ;Aboriginal Concepts of Justice, The Aboriginal Justice Implementation Commission (Web Page) <http://www.ajic.mb.ca/volumel/chapter2.html#2>
[20] Bwtribal, What Are The Roles Of Indigenous Elders? <https://bwtribal.com/blogs/news/the-roles-of-aboriginal-elders>
[21] Working with Indigenous Australians, The Law and the Lore (Web Page) <http://www.workingwithindigenousaustralians.info/content/Culture_4_The_Law_and_the_Lore.html>
[22] Michelle Sanson and Thalia Anthony, Connecting with Law, (Oxford University Press 5th Ed, 2022), 170.
[23] Ibid 170.
This article was originally published under the title ‘Positively Natural: The Reasons for a Reasonable Law’ in The Brief Edition 2, 2024 — Ceci n’est pas une loi.