In stressing the necessity for natural law’s recognition and in opposition to Jeremy Bentham, James Lorimer’s definition of natural law as ‘law as it ought to be’1 was an
important counter argument. It underlined his conviction that positive law developed from natural law because the latter represented an overarching moral ideal or mode of expected human interaction. He recognised that in reality although the moral ideal may not have been achieved in enacted law, such failure in no way discredited or denied the reality of natural law – the ‘ought to be’ law. If this morally omnipresent definition of natural law is pursued then it suggests an intriguing question. To what extent had the Utilitarians, including Bentham and Austin, unwittingly based their denial of its existence on the very natural law principles that they rejected?The dependence of positive law on natural law was one basis of Lorimer’s argument concerning the importance of natural law’s role in the law of nations: its guiding role in the devising of new forms of positive international legislation in the absence of a sovereign. Because the law of nations required legislation that could take precedence over the positive laws of individual
nations, Lorimer believed that this need could only be solved by an appeal to natural law. Robert P George, in the introduction to his book In Defense of Natural Law
(1999), identifies himself as a true Thomist, particularly with reference to his dialectical method.2While discussing later twentieth-century interpretations of natural law George
refers to some of the interpretations which have been derived from, post-Enlightenment
1 Lorimer, The Institutes of Law. 8n
2 Robert P. George is McCormick Professor of Jurisprudence at Princeton University, lecturing on
constitutional interpretation, civil liberties, and philosophy of law. He is a leading proponent of reviving the natural law tradition and has written extensively on Natural Law theory (NNL).
and nineteenth-century theorists. This is consistent with my argument that post-Holocaust interest in human rights and natural law drew not merely on Enlightenment ideals, but also on a vibrant nineteenth-century pragmatic discourse on natural law and rights. George’s understanding of natural law consists of several sets of principles:
First, and most fundamentally, a set of principles directing human choice and action toward intelligible purposes, i.e., basic human goods which, as intrinsic aspects of human well-being and fulfillment, constitute reasons for action whose intelligibility … does not depend on any more fundamental reasons (or on sub- rational motives such as the desire for emotional satisfactions). Second, [he accepts] a set of ‘intermediate’ moral principles which specify the most basic principle of morality by directing choice and action toward possibilities that may be chosen consistently with a will toward integral human fulfillment and away from possibilities the choosing of which is inconsistent with such a will.3
Here George restates the natural law principles of sociability. Despite his Catholic conservatism he omits reference to God in the same manner as the theorists discussed. This was similar to the nineteenth-century theorists who saw God as fundamental to creating a self-managing natural law system. George’s natural law thinking focuses on moral Good and Right without associating them with the Divinity. The nineteenth- century theorists I have examined: Foster; Lorimer; Caulfeild Heron; Phillimore; Twiss; Bowyer; Drummond; Combe and Seeley, while considering law independent of a Deity, like George, were nevertheless themselves theists. It was their thinking which
emphasized, though far from completely, the focus of natural law specifically on the nature of Man. Benthamite utilitarian teleology, natural selection combined with
Hobbesian modern natural law, were post-Enlightenment influences which contributed to the mutation, though not the extinction of natural law.
3 Robert P. George, In Defence of Natural Law. (Oxford : Clarendon Press ; New York : Oxford University Press, 1999). 102.
The interpretation of Lorimer and the members of the Scottish historical school for example Adam Ferguson (1723–1816) and Francis Hutcheson (1694–1746), that natural law was not evidenced in a primitive ‘state of nature’ but its understanding grew with human intellectual development, was perfectly consistent with George’s ‘set of principles directing human choice and action towards intelligible purpose’. The blurring of the rigorousness of deontological and teleological approaches to the law by Bentham and Austin, the confining of morality and consequences to the temporal world by Combe, and the acceptance by later nineteenth century jurists of a melding of ancient and modern natural law and rights theories influenced the post-Holocaust preoccupation with ‘human’ rights.
Lorimer’s views on natural law generally, and international law particularly, were certainly not without their critics. Martii Koskenniemi in The Gentle Civilizer of Nations
considers that international lawyers of the period ‘were anything but averse to giving legal recognition to cultural differences between Europe and the rest of the world’, and that Hobsbawm in his Age of Empire 1875–1914 (1987), was correct in arguing that the influences of Social Darwinism, colonial difficulties, and missionary horror stories often transformed humanitarianism into racism.4 Marti Koskenniemi believes that Lorimer
subscribed to these Eurocentric racial views citing his prediction in La Doctrine de reconnaissance (1884),‘that no other modern science would have as much effect on
4 Eric Hobsbawm, The Age of Empire1875–1914. (London : Hachette, 2010). Cited in Koskenniemi, The Gentle Civilizer of Nations : The Rise and Fall of International Law, 1870–1960. 70.