ABSTRACT
Lacan’s statement above is a reference to the possibilities that the psychoanalytic perspective opens for rethinking the relation of law and justice. This chapter pursues these possibilities by using the concepts from the last chapter to analyse the role of nature in new natural law theories in the context of the decline in the perceived legitimacy of sovereignty. It suggests there is a renewal currently under way in natural law theory that de-emphasises theological concepts characteristic of classic natural law theory. In particular, the chapter analyses the move away from theological conceptions of a divine lawgiver (i.e. God) in favour of first principles found in nature and reason, which are seen as universal and basic to human survival. Based on an understanding of human life as ‘natural reasoning’, these accounts argue that it is the nature of law to seek the common good (Finnis 1980: 405). This chapter provides Lacan’s analysis of this naturalised relationship between law and desire when ‘the guarantor who provides its warranty is lacking, namely God himself ’ (Lacan 1992: 194). Classic natural law theory is often associated with figures like Thomas
Aquinas and Hugo Grotius, who both presupposed the existence of God as the giver of a divine ‘eternal law’ behind the natural law that human beings are able to recognise by virtue of our reasonable natures.18 Contemporary figures following in the natural law tradition, like Fuller and more recently John Finnis, have moved away from the presupposition of a divine lawgiver in favour of the idea that law has a ‘natural purpose’ all its own that is not externally or metaphysically given (1980). In these accounts, the force of law appears as a natural exigency grounded deep in human nature, society or simply nature itself (Kainz 2004: xv). So, unlike the classical incarnation,
new natural law theory refers not to a force beyond human power like the divine, but to a knowledge that is definable and available to human beings. This allows for the argument that the purpose of law and legal authority comes from the existence of a common morality at the heart of any political community (George 1996: 330). The modern definition of natural law holds that objective moral norms
can be discovered and elaborated through human reason; there is no necessary mention of a connection to a God or transcendent element (Rothbard 1983: 3). What is emphasised instead is the idea of ‘self-evident basic values, from which by logical inference rational people can arrive at’ (Kainz 2004: 46). Here is an influential definition of this incarnation of natural law put forward by Robert Gordis. The reason I choose it is because it is slightly polemical and highly exemplary of the shift to non-theological conceptions:
Natural law declares that only that law is legitimate which is in harmony with human nature. Second, natural law believes that human nature is constant through time, not necessarily unchanging, but with sufficient continuity to make possible generalizations regarding its basic traits, its needs and desires, its limitations and potentialities. Third, it regards human nature as being universal in space, modified to be sure by environmental factors, but still sufficiently stable to permit a generalized theory. Finally, and most importantly, it regards human nature not as known, but as knowable, through the canons of scientific investigation and rational thought.
