NATURAL LAW

Three schools of jurisprudence: - Natural Theory - Legal Positivism - Legal Realism What answers does each give about the question of the nature of law? Classical Theorist Aquinas Modern Theorist Finnis This course is concerned with natural law theory of law and the positivist theory of law. What light has NL cast on our understanding of law? What is the nature of law? How do we understand it in a conceptual sense? - A good theory must give an adequate understanding of the subject it addresses. - What does each theory tell us about law in a general sense?

AQUINAS

- Summa Theologica, c. 12 century - Begins with the nature of law in general.

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- Law is a rule or measure of action in virtue of which one is lead to perform certain actions and is restrained from the performance of others. o This is so because the very term which law is derived from comes from a Latin word meaning to bind - The rule and measure of human action is reason. - It is reason that directs human action to its appropriate end o All forms of human action are guided by reason - What is the relationship between law and reason? o Law is a form of human action law has resulted from human action. It is either legislated or created judicially. o If Reason is the rule and measure of human action, it is therefore the rule and measure of law. o Reason directs law to its appropriate end.
Jurisprudence Lecture Notes 2008/2009 Stephanie E. Forte2

- What is the appropriate end referred to? o Law is addressed to the governance of the entire community o The constitution is the governing law, and from the constitution we derive a whole set of other laws addressed to the governance of the entire community o The end to which reason directs law is to the well-being of the entire community. - What is the good or well-being of the entire community? o That which is right, proper, reasonable and just for the entire community. o It would be a contradiction for reason to direct law to an end which is unjust and destructive of the community. o The appropriate end to which reason would direct law is a moral endthat which is good, right, reasonable and just

- Aquinas has shown the inevitable connection between law and morals. o There is a necessary and inevitable relationship between law and morals. o The extent to which law is proper law for the natural theorists is that it has been informed by reason. If informed by reason, it has been addressed to an end which is for the good of the community. Who has the authority to make law? - Either the entire community making law for its own governance o Speaking on the model of Greek city-states, where the entire community would legislate for itself, or the patrimonial prince in charge of the community legislating for them. - Law is properly made when informed by reason (addressed to the good of the entire community) Law is an ordinance of reason for the common good made by him who hath the care of the community. In what sense is law binding upon the community? From where does it drive its authority and validity? - Validity is not used in a narrow sense (i.e. derived from a particular source) - Law binds in the fundamental sense for Aquinas once it has been directed by reason - The question of the legitimacy of a legal system cannot be answered by law itself. There must be something other than law itself that justifies our allegiance to it. o What really makes law bind in the fundamental sense is something about its goodness or justice. o A system of law is justified because there are some set of principles of political morality in terms of which that system has been constituted.
Jurisprudence Lecture Notes 2008/2009 Stephanie E. Forte3

How do we know the principles by which any just system of law must be constituted? What are these principles? - Aquinas was a devout Catholic writing in the Middle Ages - Thus, for Aquinas, principles would come from a Divine being. Scriptural texts would be the source of his knowledge of these fundamental principles. To Aquinas, this was the ultimate source of knowledge of the principles by which we should order our laws. When speaking about human law, Aquinas believes the principles by which we would order the community by law would have to come from natural precepts precepts learned from the Divine Being through scriptural texts. For Aquinas, positive law (human law) is derived from the precepts of natural law. These precepts of natural law are what he referred to as indemonstrable (selfevident) principles of morality. These principles would therefore constitute the foundation of any just legal system. o Example, the principles of justice and right are self-evident

There is necessarily a moral foundation for law