A revised theory of natural law : a response to the challenges of pluralism in multicultural, democratic societies under the rule of law

Sayers, Mark William. (2002). A revised theory of natural law : a response to the challenges of pluralism in multicultural, democratic societies under the rule of law PhD Thesis, T.C. Beirne School of Law, The University of Queensland.

       
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Author Sayers, Mark William.
Thesis Title A revised theory of natural law : a response to the challenges of pluralism in multicultural, democratic societies under the rule of law
School, Centre or Institute T.C. Beirne School of Law
Institution The University of Queensland
Publication date 2002
Thesis type PhD Thesis
Total pages 479
Language eng
Subjects 390100 Law
Formatted abstract This thesis begins with counsel's advice to a plaintiff in the paradigm case where an Australian girl of Sudanese parents seeks, on turning 18 years, to sue them for damages for the female genital mutilation (FGM) that they performed on her when she was a child. The thesis concludes with a hypothetical judgement in the paradigm case on appeal in the Supreme Court of Queensland - Court of Appeal. On its face then the thesis appears to be of limited application to the Queensland jurisdiction in which the paradigm case is set.

However the thesis purports to be of much wider application. The black letter law on the outcome of this kind of litigation is both well-settled and uncontroversial. It is therefore not the black letter law that is the focus of this thesis. Rather, the focus of this thesis is the human rights argument that it is anticipated would be mounted by the parents in defence of this suit.

The nub of the parents' defence is that they enjoy a basic human right to act as they did. The parents might claim that they were merely participating in their religion, or expressing their cultural identity and tradition, or that as parents they were introducing their child into that religion and culture. These are all rights that are commonly accepted as legitimate in Western, democratic societies. The difficulty arises when the particulars of how the parents exercise those rights attract a visceral repugnance in the wider society in which they live.

The difficulty is that the visceral repugnance of the wider society risks swamping principle and producing an inconsistency or self-contradiction. This is because the visceral repugnance of the wider Australian society can be so strong that the relevant ethnic group can, understandably, feel that the culturally unempathetic response amounts to a denial either of their basic human rights at international law or of their rights under domestic anti-discrimination and equal opportunity legislation.

The two sides to the debate need an agreed discourse to give the needed confidence that any solution is consistent with the ideals of the rule of law as well as the human rights espoused by and relied upon by the respective sides to the debate.

It is argued here that since human rights talk ultimately collapses into natural law then a revised natural law is required. The need for a revised natural law is premised on the idea that natural law is culturally particular inasmuch as it relies not only on a shared content of knowledge and manner of reasoning but also on certain agreed values. That idea poses problems for the qualities of universality and objectivity that not only are routinely attributed to natural law but which also make it an attractive option for principled decision making in societies that otherwise lack an agreed ethical discourse.

Those problems are resolved by proposing a natural law in which the parameters of, for instance, universality and objectivity are re-defined in the light of inter alia St Thomas Aquinas' possibility for self-evident knowledge and Ludwig Wittgenstein's possibility for metaphysics. Those re-definitions are based on a particular understanding both of the limits of what is possible in epistemology in general and what is consistent with the character and object of natural law in particular.

The result is an understanding of natural law that deals with the corpus of the legal tradition of a society qua a self-evident fact in the world as the proper content of natural law. The fact of the legal tradition is the given both from which natural law reasoning proceeds and which informs the content of natural law. It then is a discourse that relies for its viability less on shared moral values within a pluralist society than on a shared facility to use the discourse. In this way it is possible to arrive at a principled response that maintains confidence in being a society under the rule of law.
Keyword Natural law -- Australia
Human rights -- Australia
Rule of law -- Australia

 
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Created: Tue, 07 Dec 2010, 09:11:20 EST by Ms Natalie Hull on behalf of Social Sciences and Humanities Library Service