NATURAL LAW AND THE NATURE OF LAW This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis’s influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Croweargues,isobjectiveandnormative,butnonethelesshistorically extended, socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best tolive flourishing lives, given thenatures we have and the social environments we inhabit. The nature and purpose of law canbeadequatelyunderstoodonlywithinthiswidercontextofvalue. Timely, wide-ranging and clearly written, thisvolume will appeal to those workinginlaw, philosophy and religious studies.   is Professor of Law at Bond University. He is the author or editor of several books, including Legal Theory (rd edn, ) and Research Handbook on Natural Law Theory (). His work has appeared in leading international journals, including the Modern Law Review, the Oxford Journal of Legal Studies,Jurisprudence, Ratio Juris and Lawand Critique. NATURAL LAW AND THE NATURE OF LAW JONATHAN CROWE BondUniversity UniversityPrintingHouse,Cambridge,UnitedKingdom OneLibertyPlaza,thFloor,NewYork,,USA WilliamstownRoad,PortMelbourne,,Australia –,rdFloor,Plot,SplendorForum,JasolaDistrictCentre,NewDelhi–,India AnsonRoad,#–/,Singapore CambridgeUniversityPressispartoftheUniversityofCambridge. ItfurtherstheUniversity’smissionbydisseminatingknowledgeinthepursuitof education,learning,andresearchatthehighestinternationallevelsofexcellence. www.cambridge.org Informationonthistitle:www.cambridge.org/ :./ ©JonathanCrowe Thispublicationisincopyright.Subjecttostatutoryexception andtotheprovisionsofrelevantcollectivelicensingagreements, noreproductionofanypartmaytakeplacewithoutthewritten permissionofCambridgeUniversityPress. Firstpublished PrintedandboundinGreatBritainbyClaysLtd,ElcografS.p.A. AcataloguerecordforthispublicationisavailablefromtheBritishLibrary. ----Hardback CambridgeUniversityPresshasnoresponsibilityforthepersistenceoraccuracy ofURLsforexternalorthird-partyinternetwebsitesreferredtointhispublication anddoesnotguaranteethatanycontentonsuchwebsitesis,orwillremain, accurateorappropriate. Contents Preface page vii Introduction        Normative Inclinations   Theorising Human Goods   Acting for Reasons   The Common Good   Rights and Freedoms   The Role of the State          The Natural Law Thesis   Law as an Artifact Kind   The Function of Law   Law without Authority   Contextual Interpretation   The Value of Integrity  Conclusion  Works Cited  Index  v Preface This bookis aboutthenatureof law.It isalso, however,aboutthenature and conditions of human flourishing. I argue that these two topics are inextricably related. Law is best understood as a kind of artifact with the purpose of marking the boundaries of social conduct. However, the reasons for having law in the first place – as well as the ways in which it succeeds or fails in its function – can be understood only against the normative backdrop of human values and social institutions. Law, viewed from this perspective, becomes a set of communal guidelines for the pursuit of human fulfilment, rather than a collection of rules imposed from above. Any adequate descriptive theory of law must accommodate this wider viewpoint. This picture of law is illustrated by the book’s cover art. Jean-Frédéric Bazille’s Porte de la Reine at Aigues-Mortes (oil on canvas, ) shows an assortment of people going about their everyday tasks in the shadow of a medieval wall. The wall, however, remains permeable, despite its formid- able appearance, as illustrated by the opening with light spilling through. Thispermeabilityaugments,ratherthandiminishes,thewall’sfunctionas a boundary marker. It enables the local residents to incorporate the boundaryintotheirlives,ratherthanviewingitasanimpedimenttotheir individual and collective life plans. Furthermore, although the wall dom- inates the painting with its sheer size, it is the people in the foreground who draw the eye. The true law, we might say, is not over there, but among us. Many people have helped me to write this book. I am grateful to my colleagues in the Faculty of Law at Bond University and the Law School and Philosophy Department at the University of Queensland for their support over many years of research, writing and refinement. Some early and late work on the book was undertaken during my time as a visiting scholar in the Philosophy Department at Georgetown University and the GovernmentDepartmentattheUniversityofTexasatAustin.Ithankmy vii viii Preface colleagues there for their hospitality. Draft chapters were presented to audiencesattheUniversityofAuckland,GeorgetownUniversity,McMas- ter University, Monash University, the University of Melbourne, the University of New South Wales, the University of Queensland and the UniversityofSydney,aswellasthemeetingsoftheAustralasianSocietyof Legal Philosophy and the Australasian Association of Philosophy. I thank the participants for their helpful feedback. I am indebted to Sophie Grace Chappell and Gary Chartier for their detailednotesonadraftmanuscript.Ialsorecallvaluablecommentsfrom Jim Allan, Niharika Ahuja, Nick Aroney, Kit Barker, Cicely Bonnin, Mikayla Brier-Mills, Tom Campbell, Peter Cane, Alice Dalziel, Margaret Davies, Maks Del Mar, Ken Ehrenberg, Patrick Emerton, Chris Essert, Rachael Field, Nick Gaskell, Eric Ghosh, Maurice Goldsmith, Jeff Gold- sworthy, Ross Grantham, Matthew Harding, Heidi Hurd, Radha Ivory, Barbora Jedličková, Andrew Johnston, Matthew Kramer, Martin Krygier, Julian Lamont, Constance Youngwon Lee, Judy Lichtenberg, Denise Meyerson,RobMullins,MarkMurphy,HillaryNye,SuriRatnapala,Arie Rosen, Kristen Rundle, Tim Sellers, Dale Smith, Peta Stephenson, Michael Stokes, Kevin Toh, Lisa Toohey, Kevin Walton, Lulu Weis, RobinWestandKylieWeston-Scheuber.Iamsurethereareotherswhom I have forgotten. They have my apologies, as well as my gratitude. A few other contributions deserve special acknowledgment. Cicely Bonnin remains, as always, my most trusted friend and advisor. I am constantly inspired by her passion, determination and commitment to intellectual enquiry. I thank my parents-in-law, Barbara and Geoffrey Bonnin, in whose home the opening chapters of this book were written, and my aunt- and uncle-in-law, Liz and David Bogard, in whose home I finalised the manuscript. Finally, I thank my parents, Marilyn and AndrewCrowe,whoimpartedtomethesenseofmoralintegrityandlove of wisdom that I hope are reflected in these pages. This book is dedicated to them. Excerpts from the following works are reproduced in this book with the permission of the publishers: Jonathan Crowe, ‘Natural Law in Juris- prudence and Politics’ ()  Oxford Journal of Legal Studies ; Jonathan Crowe, ‘Dworkin on the Value of Integrity’ ()  Deakin Law Review ; Jonathan Crowe, ‘Explaining Natural Rights: Onto- logical Freedom and the Foundations of Political Discourse’ ()  New York University Journal of Law and Liberty ; Jonathan Crowe, ‘Clarifying the Natural Law Thesis’ ()  Australian Journal of Legal Preface ix Philosophy ; Jonathan Crowe, ‘The Role of Contextual Meaning in Judicial Interpretation’ ()  Federal Law Review ; Jonathan Crowe,‘LawasanArtifactKind’()MonashUniversityLawReview ; Jonathan Crowe, ‘Radicalising Hayekian Constitutionalism’ ()  University of Queensland Law Journal ; Jonathan Crowe, ‘Natural Law and Normative Inclinations’ ()  Ratio Juris ; Jonathan Crowe,‘NaturalLawTheories’()PhilosophyCompass;Jonathan Crowe and Barbora Jedličková, ‘What’s Wrong with Cartels?’ ()  Federal Law Review ; Jonathan Crowe, ‘Metaphysical Foundations of Natural Law Theories’ in George Duke and Robert P. George (eds.), The Cambridge Companion to Natural Law Jurisprudence (Cambridge Univer- sity Press, ); Jonathan Crowe, ‘Functions, Context and Constitu- tional Values’ in Rosalind Dixon (ed.), Australian Constitutional Values (Hart, )(reproduced withpermissionof Hart Publishing,an imprint of Bloomsbury Publishing); and Jonathan Crowe, ‘Integrity and Truth in Law’s Empire’ in Salman Khurshid, Lokendra Malik and Veronica Rodriguez-Blanco (eds.), Dignity in the Legal and Political Philosophy of Ronald Dworkin (Oxford University Press, ) (reproduced with permission of Oxford University Press India; compilation © Oxford University Press ).