The Cambridge Companion to Natural Law Jurisprudence edited by George Duke Robert P. George Published by Cambridge University Press, 2017, 458 pp., £31.99, paperback.

• Date: 01 April 2018
• DOI: http://doi.org/10.1111/reel.12236
• Author: Nikolas Sellheim
• Published date: 01 April 2018

THE CAMBRIDGE COMPANION TO NATURAL LAW

JURISPRUDENCE edited by George Duke and Robert

P. George

Published by Cambridge University Press, 2017, 458 pp., £31.99, paperback.

I think it is impossible to definitively state how many times in my life I

have been confronted with the claim of something not being ‘natural’.

Of course, homosexuality is often cited, alongside abortion and artifi-

cial insemination, as disrupting the ‘natural’process of procreation.

Even more extreme arguments are advanced in support of the abor-

tion of disabled children, on the grounds that they have lost their ‘nat-

ural’ability to survive. In other words, there appears to be reference to

the natural order of things, to a law of nature, which supports specific

approaches to highly emotional and morality-infused contexts.

But I dare say that it is less popularly known that an entire legal

theory, legal or philosophical tradition, is rooted in the ‘nature of

things’, so to speak, or a normativity, namely natural law, which has

found its more concrete origins in the writings of Thomas of Aquinas

and is to a large extent characterized by the belief in a divine order.

There is indeed much to criticize about this theory, having garnered

much scholarly literature on the primacy of natural law or positive

law –even within this book in Mark C. Murphy’s‘Two Dilemmas of

Natural Law Jurisprudence’. Not surprisingly, one of the editors,

Robert P. George, even felt compelled to write the book In Defense

of Natural Law

1

in which he argues his view on the role natural law

plays in matters surrounding justice and morality.

But irrespective of how one approaches or considers natural or

positive law, this book is certainly an extremely insightful account of

the fundamental issues surrounding natural law and moral philoso-

phy and offers contributions by some of the biggest names of the

‘new’natural law theory, which emerged during the second half of

the twentieth century, such as the editors themselves, John Finnis

and Robert Alexy, to name a few. This volume comprises 16 chap-

ters, which are subdivided into three parts: Part I considers Founda-

tions; Part II addresses Practical Reason, Normativity and Ethics; and

Part III examines the Law. It may be suggested that after careful

consideration of this far-reaching volume, the reader will be fully

apprised of the origins, theoretical and practical underpinnings as

well as the application of natural law and natural law theory. Inevita-

bly, one must decide on several occasions whether or not to agree

with the claims brought forth by the authors. This, however, is a

very laudable part of academic debate and hopefully stimulates dis-

cussion and further scholarly output. For instance, I was personally

rather troubled by George’s assertion that natural law should con-

tribute to the reversal of moral decline, which, for example, mani-

fests itself in abortion. Likewise, it may be contested whether

natural law should serve as a tool to revitalize and protect the ‘mar-

riage culture, beginning with the preservation of marriage as the

conjugal union of husband and wife’(at 70). In other words, George

prima facie appears to equate feminism, gender equality or women’s

self-control over their bodies with ‘moral decline’, which inevitably

engenders significant political and ideological dimensions.

Be that as it may, while there are specific contexts such as the

above, that are rooted in natural law theory which I cannot condone,

the philosophical and ultimately moral dimensions of natural law the-

ory can be considered as constituting general principles of law,

thereby also serving as a source of international law.

2

Notwithstand-

ing the role one may ascribe to natural law theory, I found this vol-

ume particularly engaging and thought-provoking due to its

profound philosophical angles and the associated moral dimensions

of law, law-making and legal interpretation. Writing as a legal anthro-

pologist, I am especially happy to see how the discussions and schol-

arly excursions into the realm of natural law make such frequent and

fundamental reference to the ‘social’, which makes the notion of the

human being (or nature, for that matter) within the ‘legal’better

comprehensible. One way or the other, the book is multidisciplinary.

For instance, Jonathan Crowe in his chapter on ‘Metaphysical Foun-

dations of Natural Law Theories’,byinter alia using the example of a

chair, deals with the properties of artefacts and how their features

and those of humans enable them to be used in a certain way. By

linking these intentional and functional attributes of a chair with the

‘legal’, Crowe contributes to the theoretical advancement of legal

anthropology –after all, what he describes as intentional or func-

tional attributes of an artefact have been termed ‘affordance theory’

in anthropology: a stone can be perceived just as a stone. It can,

however, also be perceived as a building block for a house, as a tool

or as a weapon. It is the stone which affords specific characteristics

and it is up to the human or animal to respond to these afford-

ances.

3

By referencing the building of a wall which is ultimately

replaced by a legal barrier (at 122), the affordance theory has indeed

found its way into legal contexts.

Overall, I found the premises of the authors of this volume to

be overly focused on the deterrence- or sanction-based characteris-

tics of law. The aforementioned chapter by Crowe, for example,

states that a ‘good’law is only that kind of law which is legally

binding, while Thomas Pink in ‘Hume, Virtue and Natural Law’

remarks that ‘[n]atural law ... directs us in a way that is recogniz-

ably legal by imposing demands on how we act’(at 187); and N.E.

Simmonds characterizes ‘Law as an Idea We Live By’. In line with

other scholars, I would ascribe many more functions to the law,

one of which is an expressive one, which combines characteristics

of deterrence and sanctions with coordination and information.

4

In

order to make the addressees complicit, and to achieve the ‘good’,

‘[l]aw is of course not content to merely describe or comment on

BOOK REVIEWS

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99

DOI: 10.1111/reel.12236

1

RP George, In Defense of Natural Law (Oxford University Press 1999).

2

D Bodansky, J Brunn

ee and L Rajamani, International Climate Change Law (Oxford Univer-

sity Press 2017) 37, fn 10.

3

J Gibson, The Ecological Approach to Visual Perception (Houghton Mifflin 1979).

4

RH McAdams, The Expressive Powers of Law: Theories and Limits (Harvard University Press

2016).