Could the Rule of Law Survive an Eclipse of the Natural Law?
Barry W. Bussey (Dr. Barrister & Solicitor, Ontario, Canada)
Iain T. Benson (Professor School of Law, University of Notre Dame Australia, Sydney)
The proposal for the IVR Congress in Seoul Korea (July 2024) is to address the Rule of Law and its relationship to Justice and Democracy. This Special Workshop wishes to take the Rule of Law aspect of the overall theme as its focus particularly in relation to theories of natural law which affirm foundational goods such as liberty, human dignity and the common good that are, in a sense, prior to law.
The Special Workshop will consider the effects of a separation of natural law from the Rule of Law, should this be possible, and how this would reflect on the nature of justice and the common good: raising the question whether, in fact, such a separation renders the Rule of Law itself impossible in any «thick» sense (that is, one which protects fundamental human rights and the dignity of the person). «Thin» versions of the Rule of Law have been said to be consistent with mere proceduralism which could allow a slave state to have The Rule of Law (Joseph Raz, cited in Tom Bingham’s The Rule of Law, 2010 at p. 66). «Thick» accounts of The Rule of Law recognise aspects of human being and community as constitutive of any law purporting to embody justice and these tend to draw upon, to varying degrees, ideas found within Natural Law theory such as cosmos, human nature, human reason, metaphysics and education itself. The relationship between techne and telos is foundational to Natural Law accounts but metaphysics are often expressly bracketted out of «thin» conceptions of the Rule of Law in either positivist or contractualist accounts. Since most theorists now recognise that the Rule of Law should contain some recognition of human rights and, therefore, human dignity, is it not time to recognise that what is really at issue in the debate is some version of «thick» or «thin» natural law? After all, natural law, like metaphysics, does not disappear simply because one wishes not to discuss it (compare with Aldous Huxley: Means and Ends when he observes that there is no such thing as «no metaphysics» the choice is between a good or bad metaphysics).
These themes provide the framework for the Special Workshop and we hope to elicit papers across a variety of disciplines.