Books by Jonathan Crowe
Australian Constitutional Law: Principles in Movement introduces the core areas of Australian con... more Australian Constitutional Law: Principles in Movement introduces the core areas of Australian constitutional law in a logical and intuitive way. It follows a thematic and historical approach, utilising the idea of constitutional movement to enable you to see where and how the law was formed, how the law has reached its current state and where it might go in the future.
Concise yet comprehensive, this is an accessible and engaging text. It features a unique pedagogical approach to support your learning and place the law in the context of constitutional values and historical trends.
The third edition of Legal Theory continues to provide a focused summary of key points relating t... more The third edition of Legal Theory continues to provide a focused summary of key points relating to the main theories and concepts covered in legal theory and jurisprudence courses. The book is aimed primarily at students encountering legal theory for the first time or seeking a concise summary of the area for revision purposes. The third edition contains a new chapter on critical reasoning. Several other parts of the book have been revised and updated to reflect recent developments, including new suggestions for further reading.
Traditional ideas of mediator neutrality and impartiality have come under increasing attack in re... more Traditional ideas of mediator neutrality and impartiality have come under increasing attack in recent decades. There is, however, a lack of consensus on what should replace them. Mediation Ethics offers a response to this question, developing a new theory of mediation that emphasises its nature as a relational process.
The authors argue that mediation ethics should move away from the untenable notions of mediator neutrality and impartiality and towards a focus on party self-determination. They supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the unique needs and interests of the parties. This new paradigm provides the basis for a picture of the mediation profession as a community with its own internal standards of excellence, as well as a more sophisticated and realistic ethical framework for mediation practice.
Academics in law, social work and psychology will appreciate the book's nuanced account of the dynamics of mediation as a dispute resolution process. Mediation practitioners, including lawyers, social workers and counselors, will find the book a practical and helpful guide to addressing ethical dilemmas. And students of mediation will benefit from the book's clear and up to date overview of the development and principles of mediation ethics.
This thought-provoking Research Handbook provides a snapshot of current research on natural law t... more This thought-provoking Research Handbook provides a snapshot of current research on natural law theory in ethics, politics and law, showcasing the breadth and diversity of contemporary natural law thought. The Research Handbook on Natural Law Theory examines topics such as foundational figures in Western natural law theory, natural law ideas in a variety of religious and cultural traditions, normative foundations of natural law, as well as issues of law and governance. Featuring contributions by leading international scholars, this Research Handbook offers a valuable resource for scholars in law, philosophy, religious studies and related fields.
This book provides the first systematic, book-length defence of natural law ideas in ethics, poli... more This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies.
Judicial independence is a fundamental aspect of law and governance in Australia, commanding near... more Judicial independence is a fundamental aspect of law and governance in Australia, commanding near universal endorsement. Despite its vital importance, the independence of the Australian judiciary is threatened on a variety of fronts. This volume brings together some of Australia’s leading constitutional scholars to discuss judicial independence and its contemporary challenges, including challenges posed by politics, judicial selection, extra-judicial activities, social media and the war on terror. Contributions include theoretical, empirical and comparative perspectives. The book includes an initial essay by former Chief Justice of the High Court of Australia, Sir Anthony Mason AC KBE CBE QC. The volume provides a valuable guide to future directions in law and governance, with an eye to strengthening judicial independence in Australia.
The second edition of Legal Theory continues to provide a focused summary of key points relating ... more The second edition of Legal Theory continues to provide a focused summary of key points relating to the main theories and concepts covered in Australian legal theory and jurisprudence courses. The clear, succinct and accurate exposition of the core concepts and themes provide an excellent entry point into the subject for students and a concise tool for revision. Diagrams and examples have been used to assist understanding, and recent and emerging perspectives have been included to ensure the text best suits the way legal theory is taught in Australia.
This book provides a clear and concise explanation of the central principles of international hum... more This book provides a clear and concise explanation of the central principles of international humanitarian law (or the law of armed conflict) while situating them in a broader philosophical, ethical and legal context.
The authors consider a range of wider issues relevant to international humanitarian law, including its ethical foundations, relationship to other bodies of international law and contemporary modes of enforcement. This helps to develop a richer context for understanding the law of war and a sound basis for examining the changing nature of contemporary armed conflict. The book also discusses important recent decisions by international courts and tribunals, tracks the historical development of humanitarian principles in warfare and considers the legal position of states, individuals and non-state groups.
Principles of International Humanitarian Law is an important resource for students of international humanitarian law and international law academics, as well as international humanitarian law practitioners.
Australian Constitutional Law: Foundations and Theory explains and evaluates the Australian const... more Australian Constitutional Law: Foundations and Theory explains and evaluates the Australian constitutional system in relation to the classical principles of constitutional government such as the rule of law, separation of powers, representation, executive responsibility, federalism and fundamental rights.
In this third edition, Suri Ratnapala is joined by Jonathan Crowe as co-author, and the book has been fully revised and expanded. This includes wider coverage of: Australian Constitutionalism; Interpretation of the Constitution; Federal-State Relations; International Powers of the Commonwealth; Trade, Commerce and Industrial Relations; Constitutional Freedoms; and the Separation of Powers.
Book Chapters by Jonathan Crowe
Constitutional deliberation by appellate courts plays a prominent role in public discourse about ... more Constitutional deliberation by appellate courts plays a prominent role in public discourse about legal institutions. It is surprising, given this prominence, how little we know about exactly how judges make decisions in constitutional cases. The present chapter explores this topic by drawing on recent research on moral psychology and assessing its possible applications to constitutional decisions. There is now a substantial body of research, exemplified by the work of Jonathan Haidt and Daniel Kahneman, showing that intuitive judgements play a pivotal role in ethical reasoning. People typically react to ethical scenarios by first forming snap judgements about the ethical features of the scenario and then either rationalising or revising these judgements through further reflection. There has, however, so far been little research into the implications of these findings for our understanding of legal processes.
Legal reasoning is traditionally presented as a deliberative and reflective process. This is particularly true of constitutional reasoning, which tends to occur at the higher levels of the judiciary and places greater emphasis on abstract principles. However, the studies mentioned above suggest that constitutional deliberation, like other forms of normative reasoning, is likely to depend significantly on snap judgements. The present chapter seeks to explain how this occurs. It outlines a three-level theory of constitutional deliberation as a form of equilibrium between snap judgements, mid-level rules and background principles. The resulting view bears some resemblance to Ronald Dworkin's much-discussed theory of law as integrity. However, Dworkin's theory (like other leading accounts) largely neglects the relevance of snap judgements. It therefore overlooks the role these judgements play in guiding constitutional decisions and thereby potentially changing the law.
We owe things to animals. I mean: we have duties towards them. Animals, for their part, have righ... more We owe things to animals. I mean: we have duties towards them. Animals, for their part, have rights with respect to us. This kind of language is a straightforward and compelling way of talking about our ethical relationship to animals. However, it invites two common objections. First, it is sometimes argued that, since animals are incapable of engaging in moral discourse or holding duties with regard to other beings, they should not be regarded as bearers of rights. The right-duty relationship, on this view, is necessarily reciprocal. Animals cannot show moral concern towards others, so they do not belong to the moral community.
A related objection concerns the relationship between ethics and justice. Ethics, it is sometimes thought, is concerned with interpersonal relationships, whereas justice considers institutions: duties, rights and so on belong to the latter realm. Furthermore, on this view, the topics must be distinguished. A theory of justice cannot simply restate the demands of ethics. It must make a place for non-ideal theory, asking what institutions we should adopt on the assumption that people will not always behave well. It is one question what people owe to others, ethically speaking, but the issue of what rights and duties people hold is a separate issue.
I want to argue that these two worries rest on a common mistake. The mistake concerns the way they understand the moral community and its relationship to institutional justice. The mistake does not lie in thinking people sometimes act unethically: that is indubitably true. Rather, the mistake lies in thinking that ethical and institutional questions can and should be separated. Interpersonal ethics, I will argue, supplies the basis for community and therefore for justice and law. Justice, then, is subsidiary to ethics; interpersonal relationships supply the foundations for just institutions. We must begin imagining justice on a small scale. The ethical theory of Emmanuel Levinas shows us how this might be done.
The new natural law theorists, such as Germain Grisez, John Finnis and Joseph M Boyle, argue that... more The new natural law theorists, such as Germain Grisez, John Finnis and Joseph M Boyle, argue that intentional human action is oriented towards a plurality of basic goods. This focus on the role of the good in orienting action--and its subsequent implications for practical reason, politics and law--is a recurring and central theme of the natural law tradition. The basic goods, according to the new natural law theorists, render human action intelligible. The intelligibility of an action does not guarantee its reasonableness: that depends on whether the action is oriented towards the basic goods in a way that meets the requirements of practical rationality. However, an action that fails to be intelligible will fail to be reasonable, because it is not directed at any underlying good. The intelligibility of an action, on this view, is therefore a necessary, but not sufficient, condition for its reasonableness.
What, then, does it mean for an action to be intelligible or unintelligible? The new natural law theorists have relatively little to say about this question, beyond describing the role of the basic goods in guiding human action. The present chapter builds on this account to argue that actions are intelligible or unintelligible relative to a context of social practices. This understanding of intelligibility reveals an important connection between the basic goods and the common good. The common good, understood as the project of creating a society that offers a wide and generally accessible array of modes of human flourishing, not only facilitates pursuit of the basic goods, but makes the goods possible. It does this by creating a context within which judgments can be made about the intelligibility of intentional conduct.
This short chapter introduces the key principles relating to the scope and application of interna... more This short chapter introduces the key principles relating to the scope and application of international humanitarian law (or the law of armed conflict).
What are constitutional values and where do they come from? One plausible answer to this question... more What are constitutional values and where do they come from? One plausible answer to this question is that constitutional values reflect the functions or purposes of the Constitution and its provisions. However, this response raises the further question of where those functions or purposes themselves come from. This chapter argues that at least some of the functions or purposes that give rise to constitutional values properly derive from contemporary beliefs and attitudes about the Constitution, rather than the intentions of its framers. I begin by examining the concept of a function as it applies to legal texts and other artifacts. I explore the relationship between functions and intentions, showing how functions can arise from contemporary beliefs and attitudes, not just authorial intentions. I discuss the implications of this argument for the notion of ordinary meaning, explaining how the role of contemporary context in shaping the meaning of constitutional texts creates a problem for originalism. I then introduce the idea of constitutional narratives, showing how this helps to make sense of the role of contemporary practices in grounding constitutional values. I argue that constitutional narratives can provide a sound basis for constitutional implications (even when not grounded in authorial intentions). I conclude with a brief comment on functionalist theories of constitutional interpretation.
Law oscillates. It exists in time and therefore in movement. Law changes and this change marks th... more Law oscillates. It exists in time and therefore in movement. Law changes and this change marks the passage of time. Law’s movement, however, is not simply linear. It is not a one way journey from A to B. It is, rather, an oscillation between centres of gravity. Law moves from A to B, then back to A again. Law returns.
Law’s oscillation takes many forms, but one of the most basic is the movement of law between order and disorder. At the most basic level, humans want to be whole. At the same time, however, they find themselves perpetually divided against themselves and one another by their desires for power, glory and material possessions.
This dual character of human motivation represents the two faces of legal order. Law is both cooperative and competitive. Attempts to preserve the rule of law through force of will cannot mask the tension at the heart of human governance. Things, inevitably, fall apart. And this is the unerring pattern of human history.
The natural law outlook (as defended in the work of the ‘new natural law theorists’, such as Germ... more The natural law outlook (as defended in the work of the ‘new natural law theorists’, such as Germain Grisez, John Finnis and Joseph M. Boyle ) involves a range of distinctive positions in ethics, political philosophy and jurisprudence. Specifically, it consists of an ethical theory that combines the incommensurability of the basic forms of good with the logical priority of the good over the right; a political theory that holds that all agents have a duty to promote the common good; and a legal theory that combines a normative account of law as social coordination with the ontological claim that law is necessarily a rational standard for conduct.
This chapter explores the metaphysical foundations of these aspects of the natural law position. I will focus particularly on the metaphysical issues raised by the natural law outlook in ethics and jurisprudence. The emphasis placed in natural law ethics on the basic forms of good raises questions about the nature of the goods and their relationship to other sorts of entities. Similarly, the central claim of natural law jurisprudence—that law is necessarily a rational standard for conduct—raises fundamental questions about the nature of law. Natural law authors have adopted some characteristic positions on these issues, but there is significant debate about the details.
Section 51(xxvi) of the Australian Constitution (often called the ‘race power’) provides that the... more Section 51(xxvi) of the Australian Constitution (often called the ‘race power’) provides that the Commonwealth Parliament may make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. The original provision excluded laws concerning ‘the aboriginal race in any State’, but those words were deleted by referendum in 1967. A debate has since raged as to whether the provision can be used to support laws discriminating against Aboriginal and Torres Strait Islander Peoples. The Expert Panel on Constitutional Recognition of Indigenous Australians recommended in its report of January 2012 that this head of power be repealed and replaced with a provision intended to be limited to beneficial laws. However, this proposal raises its own problems of interpretation. This chapter considers whether a replacement for the race power is necessary or desirable given the federal nature of the Constitution. It does so by considering the moral significance of the principle of subsidiarity and its relevance to Aboriginal and Torres Strait Islander Peoples. The worry is sometimes raised that simply repealing the race power would threaten important Commonwealth legislation and spending programs, including the Native Title Act 1993 (Cth). However, these concerns need to be placed within a broader moral and legal context. I suggest that a minimalist strategy of removing s 51(xxvi) from the Constitution without incorporating a reformulated race power offers some important advantages that may outweigh the inconvenience posed by the lack of a replacement provision.
Humans are fallible—and this fallibility is the hardest thing for us to grasp. It is for this rea... more Humans are fallible—and this fallibility is the hardest thing for us to grasp. It is for this reason that the separation of powers—the importance of which ultimately rests on the flawed character of human reason—is continually under threat. This chapter examines the various facets of human fallibility that explain the importance of the separation of powers. It distinguishes epistemological, psychological, ethical and moral forms of fallibility and examines how each of these human failings affects government decisions. The chapter then explores how the modern tripartite separation of powers restrains human fallibility through both substantive and procedural mechanisms. It concludes with a reflection on the vulnerability of the separation of powers in modern administrative democracies and a plea for the importance of humility in public life. The separation of powers is integral to modern governance—but we can never take it for granted, because the very reasons that make it important also explain why government officials fail to honour it.
This chapter reviews John Finnis, Philosophy of Law: Collected Essays Volume IV (Oxford Universit... more This chapter reviews John Finnis, Philosophy of Law: Collected Essays Volume IV (Oxford University Press, 2011). It draws out some central themes of Finnis's work on philosophy of law, focusing on the concepts of normativity, coordination and authority. The chapter also considers some similarities and differences between the natural law theories of Finnis and Michael Detmold, both law students at the University of Adelaide in the late 1950s and early 1960s. I argue that Detmold provides the more convincing account of legal normativity.
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Books by Jonathan Crowe
Concise yet comprehensive, this is an accessible and engaging text. It features a unique pedagogical approach to support your learning and place the law in the context of constitutional values and historical trends.
The authors argue that mediation ethics should move away from the untenable notions of mediator neutrality and impartiality and towards a focus on party self-determination. They supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the unique needs and interests of the parties. This new paradigm provides the basis for a picture of the mediation profession as a community with its own internal standards of excellence, as well as a more sophisticated and realistic ethical framework for mediation practice.
Academics in law, social work and psychology will appreciate the book's nuanced account of the dynamics of mediation as a dispute resolution process. Mediation practitioners, including lawyers, social workers and counselors, will find the book a practical and helpful guide to addressing ethical dilemmas. And students of mediation will benefit from the book's clear and up to date overview of the development and principles of mediation ethics.
The authors consider a range of wider issues relevant to international humanitarian law, including its ethical foundations, relationship to other bodies of international law and contemporary modes of enforcement. This helps to develop a richer context for understanding the law of war and a sound basis for examining the changing nature of contemporary armed conflict. The book also discusses important recent decisions by international courts and tribunals, tracks the historical development of humanitarian principles in warfare and considers the legal position of states, individuals and non-state groups.
Principles of International Humanitarian Law is an important resource for students of international humanitarian law and international law academics, as well as international humanitarian law practitioners.
In this third edition, Suri Ratnapala is joined by Jonathan Crowe as co-author, and the book has been fully revised and expanded. This includes wider coverage of: Australian Constitutionalism; Interpretation of the Constitution; Federal-State Relations; International Powers of the Commonwealth; Trade, Commerce and Industrial Relations; Constitutional Freedoms; and the Separation of Powers.
Book Chapters by Jonathan Crowe
Legal reasoning is traditionally presented as a deliberative and reflective process. This is particularly true of constitutional reasoning, which tends to occur at the higher levels of the judiciary and places greater emphasis on abstract principles. However, the studies mentioned above suggest that constitutional deliberation, like other forms of normative reasoning, is likely to depend significantly on snap judgements. The present chapter seeks to explain how this occurs. It outlines a three-level theory of constitutional deliberation as a form of equilibrium between snap judgements, mid-level rules and background principles. The resulting view bears some resemblance to Ronald Dworkin's much-discussed theory of law as integrity. However, Dworkin's theory (like other leading accounts) largely neglects the relevance of snap judgements. It therefore overlooks the role these judgements play in guiding constitutional decisions and thereby potentially changing the law.
A related objection concerns the relationship between ethics and justice. Ethics, it is sometimes thought, is concerned with interpersonal relationships, whereas justice considers institutions: duties, rights and so on belong to the latter realm. Furthermore, on this view, the topics must be distinguished. A theory of justice cannot simply restate the demands of ethics. It must make a place for non-ideal theory, asking what institutions we should adopt on the assumption that people will not always behave well. It is one question what people owe to others, ethically speaking, but the issue of what rights and duties people hold is a separate issue.
I want to argue that these two worries rest on a common mistake. The mistake concerns the way they understand the moral community and its relationship to institutional justice. The mistake does not lie in thinking people sometimes act unethically: that is indubitably true. Rather, the mistake lies in thinking that ethical and institutional questions can and should be separated. Interpersonal ethics, I will argue, supplies the basis for community and therefore for justice and law. Justice, then, is subsidiary to ethics; interpersonal relationships supply the foundations for just institutions. We must begin imagining justice on a small scale. The ethical theory of Emmanuel Levinas shows us how this might be done.
What, then, does it mean for an action to be intelligible or unintelligible? The new natural law theorists have relatively little to say about this question, beyond describing the role of the basic goods in guiding human action. The present chapter builds on this account to argue that actions are intelligible or unintelligible relative to a context of social practices. This understanding of intelligibility reveals an important connection between the basic goods and the common good. The common good, understood as the project of creating a society that offers a wide and generally accessible array of modes of human flourishing, not only facilitates pursuit of the basic goods, but makes the goods possible. It does this by creating a context within which judgments can be made about the intelligibility of intentional conduct.
Law’s oscillation takes many forms, but one of the most basic is the movement of law between order and disorder. At the most basic level, humans want to be whole. At the same time, however, they find themselves perpetually divided against themselves and one another by their desires for power, glory and material possessions.
This dual character of human motivation represents the two faces of legal order. Law is both cooperative and competitive. Attempts to preserve the rule of law through force of will cannot mask the tension at the heart of human governance. Things, inevitably, fall apart. And this is the unerring pattern of human history.
This chapter explores the metaphysical foundations of these aspects of the natural law position. I will focus particularly on the metaphysical issues raised by the natural law outlook in ethics and jurisprudence. The emphasis placed in natural law ethics on the basic forms of good raises questions about the nature of the goods and their relationship to other sorts of entities. Similarly, the central claim of natural law jurisprudence—that law is necessarily a rational standard for conduct—raises fundamental questions about the nature of law. Natural law authors have adopted some characteristic positions on these issues, but there is significant debate about the details.
Concise yet comprehensive, this is an accessible and engaging text. It features a unique pedagogical approach to support your learning and place the law in the context of constitutional values and historical trends.
The authors argue that mediation ethics should move away from the untenable notions of mediator neutrality and impartiality and towards a focus on party self-determination. They supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the unique needs and interests of the parties. This new paradigm provides the basis for a picture of the mediation profession as a community with its own internal standards of excellence, as well as a more sophisticated and realistic ethical framework for mediation practice.
Academics in law, social work and psychology will appreciate the book's nuanced account of the dynamics of mediation as a dispute resolution process. Mediation practitioners, including lawyers, social workers and counselors, will find the book a practical and helpful guide to addressing ethical dilemmas. And students of mediation will benefit from the book's clear and up to date overview of the development and principles of mediation ethics.
The authors consider a range of wider issues relevant to international humanitarian law, including its ethical foundations, relationship to other bodies of international law and contemporary modes of enforcement. This helps to develop a richer context for understanding the law of war and a sound basis for examining the changing nature of contemporary armed conflict. The book also discusses important recent decisions by international courts and tribunals, tracks the historical development of humanitarian principles in warfare and considers the legal position of states, individuals and non-state groups.
Principles of International Humanitarian Law is an important resource for students of international humanitarian law and international law academics, as well as international humanitarian law practitioners.
In this third edition, Suri Ratnapala is joined by Jonathan Crowe as co-author, and the book has been fully revised and expanded. This includes wider coverage of: Australian Constitutionalism; Interpretation of the Constitution; Federal-State Relations; International Powers of the Commonwealth; Trade, Commerce and Industrial Relations; Constitutional Freedoms; and the Separation of Powers.
Legal reasoning is traditionally presented as a deliberative and reflective process. This is particularly true of constitutional reasoning, which tends to occur at the higher levels of the judiciary and places greater emphasis on abstract principles. However, the studies mentioned above suggest that constitutional deliberation, like other forms of normative reasoning, is likely to depend significantly on snap judgements. The present chapter seeks to explain how this occurs. It outlines a three-level theory of constitutional deliberation as a form of equilibrium between snap judgements, mid-level rules and background principles. The resulting view bears some resemblance to Ronald Dworkin's much-discussed theory of law as integrity. However, Dworkin's theory (like other leading accounts) largely neglects the relevance of snap judgements. It therefore overlooks the role these judgements play in guiding constitutional decisions and thereby potentially changing the law.
A related objection concerns the relationship between ethics and justice. Ethics, it is sometimes thought, is concerned with interpersonal relationships, whereas justice considers institutions: duties, rights and so on belong to the latter realm. Furthermore, on this view, the topics must be distinguished. A theory of justice cannot simply restate the demands of ethics. It must make a place for non-ideal theory, asking what institutions we should adopt on the assumption that people will not always behave well. It is one question what people owe to others, ethically speaking, but the issue of what rights and duties people hold is a separate issue.
I want to argue that these two worries rest on a common mistake. The mistake concerns the way they understand the moral community and its relationship to institutional justice. The mistake does not lie in thinking people sometimes act unethically: that is indubitably true. Rather, the mistake lies in thinking that ethical and institutional questions can and should be separated. Interpersonal ethics, I will argue, supplies the basis for community and therefore for justice and law. Justice, then, is subsidiary to ethics; interpersonal relationships supply the foundations for just institutions. We must begin imagining justice on a small scale. The ethical theory of Emmanuel Levinas shows us how this might be done.
What, then, does it mean for an action to be intelligible or unintelligible? The new natural law theorists have relatively little to say about this question, beyond describing the role of the basic goods in guiding human action. The present chapter builds on this account to argue that actions are intelligible or unintelligible relative to a context of social practices. This understanding of intelligibility reveals an important connection between the basic goods and the common good. The common good, understood as the project of creating a society that offers a wide and generally accessible array of modes of human flourishing, not only facilitates pursuit of the basic goods, but makes the goods possible. It does this by creating a context within which judgments can be made about the intelligibility of intentional conduct.
Law’s oscillation takes many forms, but one of the most basic is the movement of law between order and disorder. At the most basic level, humans want to be whole. At the same time, however, they find themselves perpetually divided against themselves and one another by their desires for power, glory and material possessions.
This dual character of human motivation represents the two faces of legal order. Law is both cooperative and competitive. Attempts to preserve the rule of law through force of will cannot mask the tension at the heart of human governance. Things, inevitably, fall apart. And this is the unerring pattern of human history.
This chapter explores the metaphysical foundations of these aspects of the natural law position. I will focus particularly on the metaphysical issues raised by the natural law outlook in ethics and jurisprudence. The emphasis placed in natural law ethics on the basic forms of good raises questions about the nature of the goods and their relationship to other sorts of entities. Similarly, the central claim of natural law jurisprudence—that law is necessarily a rational standard for conduct—raises fundamental questions about the nature of law. Natural law authors have adopted some characteristic positions on these issues, but there is significant debate about the details.
My aim in this talk is to build on these discussions to offer some suggestions about how the notion of wellness in law is best understood. The talk begins by exploring some existing views of wellness in the academic literature. I suggest that wellness is not best understood either as the absence of psychological distress or as the presence of life satisfaction or positive affect. I then outline an alternative understanding of wellness that centres around the role of basic values in human flourishing. Wellness, I argue, consists in participating in the various dimensions of human flourishing in a balanced and integrated way. One advantage of this account is that it draws out the fundamental challenge wellness in law poses to existing models of legal education and practice. I therefore conclude with some comments on that issue.