Thursday, December 23, 2010
In natural law theory, "determinatio" is the process by which natural law is made into determinate positicve law. A lot of discussion of "determinatio" in natural law jurisprudence is just the repetition of tired formulas from Aquinas. In this paper, I try to bring the subject to life by considering the case that can be made for more more detailed elaboration of laws prohibiting (a) assisted suicide and (b) torture. I assume that "determinatio" can be a multi-step process by which we move first from a natural law ideal to a particular formulation of positive law and then from that particular positive law formulation to more precise formulations and applications. I assume also that the demand for greater and greater precision is not always healthy or wholesome in law. (a) John Finnis thinks this about the demand for more precise guidelines relating to possible prosecutions for assusted suicide in the House of Lords' last case: R. (on the application of Purdy) v DPP  1 A.C. 345. (b) I have argued elsewhere that the demand for more precise guidance concerning the application of the prohibition on torture is often vicious and unwholesome - as abusive interrogators demand a precise envelope whose boundaries they can push. In this paper, I explore why I do not agree with Finnis about (a) and why Finnis does not seem to be in wholehearted agreement with me about (b). I think that exploring these cross-cutting antagonisms casts useful light on all three topics: the law relating to assisted suicide, the law relating to torture, and the naturla law idea of "determinatio."