The Gazette 1982

GAZETTE

APRIL 1982

Aquinas Society heard an address in The Middle Tem- ple, London, given by a Dominican friar (published at Blackfriars, Oxford, May 1929). It contained a pro- found definition of natural law ascribed to St. Thomas Aquinas and reads as follows: "Law, being a rule and measure, can be in a per- son in two ways; in one way as in him that rules and measures; in another way as in that which is ruled and measured . . . Wherefore since all things subject to divine providence are ruled and measured by the Eternal Law, it is evident that all things partake somewhat of the Eternal Law in so far as, namely, from its being imprinted on them they derive their respective inclinations to their acts and ends. Now among all others the rational creature is subject to divine providence in the most excellent way, insofar as it partakes of a share of providence by being provident both for itself and for others. Wherefore it has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end; and this participation of the Eternal Law in the rational creature is called The Natural Law." (Summa Theologica. 1 a, II ac. Qu. 91 Art. 2) A few years after this address was delivered, an appeal from a refusal of a High Court Judge in London to grant an application of habeas corpus came before three judges. The leading counsel in the matter was A.M. Sullivan, K.C., who had been at one time a member of the Irish Bar and had transferred to London to practise his voca- tion there. From the report of the case, it can safely be assumed that his submissions on behalf of the applicant were inspired by the Middle Temple address in which the definition of the Natural Law had been quoted. Mr. Justice Scrutton and Mr. Justice Slasser granted the appeal. Mr. Justice Green dissented. (In re Carroll [1931] 1 KB p, 317)!). Returning to the American scene, an interesting development took place about 1946 when, in the Law School of Notre Dame University, Indiana, a Natural Law Institute was established. In 1949 an address was delivered to that Institute by Richard O'Sullivan K.C., Recorder of Derby, on The Natural Law and Common Law. It is a model of juridical erudition. (Published in The Law Review, University of Pitsburg, Summer 1950). The late Mr. Justice George Gavan Duffy was one of the first to apply natural law concepts, when he con- tended that Irish citizens should be free to adopt laws that were compatible with the notion of national sovereignty and to reject those that did not. "If, before the Treaty, a particular law was ad- ministered in a way so repugnant to the common sense of our citizens as to make the law look ridiculous, it is not in the public interest that we should repeat this mistake. Our new High Court must mould its own cursus curiae; in so doing, I hold that it is free, indeed bound, to decline to treat any such absurdity in the machinery of ad- ministration as having been imposed on it as part of the law of the land; nothing is law here which is inconsistent with derivation from the People." (Exham v. Beamish [1939]I.R. p.348) 35

Fiat Justitia

by T. D. McLoughlin, Solicitor

When Chief Justice Burger of the United States Supreme Court made a simple admission recently, as follows: "My criticism of Legal Education beginning when I tried to teach law long, long ago, was that it was good on principles and not good about people. The law in its broadest sense is not an end in itself - it is a tool - a means to an end. And that end is justice as nearly as fallible humans can achieve it - for people and their problems." (q.v. Law Society Gazette, March 1978) - it is more than probable that followers of the doyen of American Supreme Court judges, Chief Justice Oliver Wendell Holmes, raised a dubious eyebrow. The judge, who only retired on reaching his ninetieth year, established a reputation for by-passing the concept of natural law, in its legal sense, rather than for observing it. From a series of biographical articles that were published after his death in 1935, the following is rele- vant "Two things about Justice Oliver Wendell Holmes need reconciliation. He had a very bad philosophy yet he ranks among the greatest men of his time. His philosophy was agnostic, materialistic, hopeless of the attainment of any ultimate truth, meaning or standard of value. As a result, it is fundamentally indistinguishable from the amoral realism of these regimes of force and power that are the scandal of the century . . . This relation of Holmes to his age is well summarised by Max Lerner who says. "The fact is that Holmes's 'bad man' standard, his rejection of natural law, and his definition of law as what the courts will in fact do were all congenial to the mood and quality of a pragmatic American in whose practical business life the realm of fact had elbowed out the norms of reality." (Harold R. McKinnon in 36 American Bar Association's Journal, April 1950). Looking across from west to east one can- not help noting that in the late twenties members of the