RESEARCH PROJECT ON

A CRITICISM OF NATURAL LAW THEORY

SUBMITTED TO

In Fulfillment of the Requirements for Internal Component in

JURISPRUDENCE

By

J. Mohamed Farvace

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 (Regd. No.BA0140034)

Declaration

I do hereby declare that the project entitled A Criticism of Natural Law

Theory submitted to Tamil Nadu National law school in partial fulfillment of
requirement of award of degree in undergraduate in law is a record of original
work done by me under the supervision and guidance of faculty in charge of
department of Jurisprudence of Tamil Nadu National law school and has not
formed basis for award of any degree or diploma or fellowship or any other title to
any candidate of any university.

Place: Trichy

Date: 22/07/2016

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 MOHAMED FARVACE.J

SECTION-A

Certificate

This is to certify that the project entitled A Criticism of Natural Law Theory
submitted to Tamil Nadu National law school in partial fulfillment of requirement
of award of degree of under graduate in Law done by Mohamed Farvace.J under
the supervision and guidance of faculty in charge of department of Jurisprudence
of Tamil Nadu National Law School.

Place: Trichy

Date: 22/07/2016

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 Acknowledgement

This project could not have been done without the help, guidance, and
support of few people who stood by my side from the very beginning of this
project.

Im very glad and grateful to the faculty in charge of department of Jurisprudence

who was the initiative and inspired me to take up this project. His contribution to
this project is an immense one.

Im also grateful to my parents and friends who all stood as a pillar of support for
me during this entire research work. Their contribution to this project is an
indispensable one.

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 TABLE OF CONTENTS

1. TABLE OF CONTENTS
2. INTRODUCTION
3. RESEARCH METHODOLOGY
4. OBJECTIVES
5. A CRITIQUE OF NATURAL LAW THEORY
6. CONCLUSION
7. BIOBLIOGRAPHY

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 INTRODUCTION

Law is, generally, a system of rules which are enforced through social institutions to govern
behavior, although the term "law" has no universally accepted definition.[3] Laws can be made by
legislatures through legislation (resulting in statutes), the executive through decrees
and regulations, or judges through binding precedents (normally in common law jurisdictions).
Private individuals can create legally binding contracts, including (in some jurisdictions)
arbitration agreements that exclude the normal court process. The formation of laws themselves
may be influenced by a constitution (written or unwritten) and the rights encoded therein. The
law shapes politics, economics, and society in various ways and serves as a mediator of relations
between people.1

WHAT IS NATURAL LAW

The term "natural law" is ambiguous. It refers to a type of moral theory, as well as to a type of
legal theory, but the core claims of the two kinds of theory are logically independent. It does not
refer to the laws of nature, the laws that science aims to describe. According to natural law moral
theory, the moral standards that govern human behavior are, in some sense, objectively derived
from the nature of human beings and the nature of the world. While being logically independent
of natural law legal theory, the two theories intersect. However, the majority of the article will
focus on natural law legal theory.

According to natural law legal theory, the authority of legal standards necessarily derives, at least
in part, from considerations having to do with the moral merit of those standards. There are a
number of different kinds of natural law legal theories, differing from each other with respect to
the role that morality plays in determining the authority of legal norms. The conceptual
jurisprudence of John Austin provides a set of necessary and sufficient conditions for the
existence of law that distinguishes law from non-law in every possible world. Classical natural
law theory such as the theory of Thomas Aquinas focuses on the overlap between natural law
1 http://en.wikipedia.org/wiki/Law

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moral and legal theories. Similarly, the neo-naturalism of John Finnis is a development of
classical natural law theory. In contrast, the procedural naturalism of Lon L. Fuller is a rejection
of the conceptual naturalist idea that there are necessary substantive moral constraints on the
content of law. Lastly, Ronald Dworkins theory is a response and critique of legal positivism.
All of these theories subscribe to one or more basic tenets of natural law legal theory and are
important to its development and influence.2

RESEARCH METHODOLOGY
This Doctrinal research is descriptive and analytical in nature. Secondary and Electronic
resources have been largely used to gather information and data about the topic.

Books and other reference as guided by Faculty have been primarily helpful in giving this project
a firm structure. Websites, dictionaries and articles have also been referred.

Footnotes have been provided wherever needed, to acknowledge the source.

OBJECTIVES

TWO KINDS OF NATURAL LAW THEORY

At the outset, it is important to distinguish two kinds of theory that go by the name of natural
law. The first is a theory of morality that is roughly characterized by the following theses.

First, moral propositions have what is sometimes called objective standing in the sense
that such propositions are the bearers of objective truth-value; that is, moral propositions
can be objectively true or false. Though moral objectivism is sometimes equated with
moral realism (see, e.g., Moore 1992, 190: "the truth of any moral proposition lies in its
correspondence with a mind- and convention-independent moral reality"), the
relationship between the two theories is controversial. Geoffrey Sayre-McCord (1988),
for example, views moral objectivism as one species of moral realism, but not the only

2 http://www.iep.utm.edu/natlaw/

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 form; on Sayre-McCord's view, moral subjectivism and moral intersubjectivism are also
forms of moral realism. Strictly speaking, then, natural law moral theory is committed
only to the objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the claim that
standards of morality are in some sense derived from, or entailed by, the nature of the
world and the nature of human beings. St. Thomas Aquinas, for example, identifies the
rational nature of human beings as that which defines moral law: "the rule and measure of
human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II,
Q.90, A.I). On this common view, since human beings are by nature rational beings, it is
morally appropriate that they should behave in a way that conforms to their rational
nature. Thus, Aquinas derives the moral law from the nature of human beings (thus,
"natural law").

But there is another kind of natural law theory having to do with the relationship of morality to
law. According to natural law theory of law, there is no clean division between the notion of law
and the notion of morality. Though there are different versions of natural law theory, all
subscribe to the thesis that there are at least some laws that depend for their "authority" not on
some pre-existing human convention, but on the logical relationship in which they stand to moral
standards. Otherwise put, some norms are authoritative in virtue of their moral content, even
when there is no convention that makes moral merit a criterion of legal validity. The idea that the
concepts of law and morality intersect in some way is called the Overlap Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal theorists, but
the two theories, strictly speaking, are logically independent. One can deny natural law theory of
law but hold a natural law theory of morality. John Austin, the most influential of the early legal
positivists, for example, denied the Overlap Thesis but held something that resembles a natural
law ethical theory.

CLASSICAL NATURAL LAW THEORY

All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some
kind of non-conventional relation between law and morality. According to this view, then, the

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notion of law cannot be fully articulated without some reference to moral notions. Though the
Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be
interpreted.The strongest construction of the Overlap Thesis forms the foundation for the
classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1)
eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised of those
laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can
"think of eternal law as comprising all those scientific (physical, chemical, biological,
psychological, etc.) 'laws' by which the universe is ordered." Divine law is concerned with those
standards that must be satisfied by a human being to achieve eternal salvation. One cannot
discover divine law by natural reason alone; the precepts of divine law are disclosed only
through divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the behavior of
beings possessing reason and free will. The first precept of the natural law, according to Aquinas,
is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that
Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is
derived from the rational nature of human beings. Good and evil are thus both objective and
universal.

But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that which is
promulgated by human beings) is valid only insofar as its content conforms to the content of the
natural law; as Aquinas puts the point: "[E]very human law has just so much of the nature of law
as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no
longer a law but a perversion of law" (ST I-II, Q.95, A.II). To paraphrase Augustine's famous
remark, an unjust law is really no law at all.The idea that a norm that does not conform to the
natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William
Blackstone describes the thesis, "This law of nature, being co-eval with mankind and dictated by
God himself, is of course superior in obligation to any other. It is binding over all the globe, in all
countries, and at all times: no human laws are of any validity, if contrary to this; and such of
them as are valid derive all their force, and all their authority, mediately or immediately, from
this original" (1979, 41). In this passage, Blackstone articulates the two claims that constitute the
theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict

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with the natural law; and 2) all valid laws derive what force and authority they have from the
natural law.

THE SUBSTANTIVE NEO-NATURALISM OF JOHN FINNIS

John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone.
Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed
as a conceptual account of the existence conditions for law. According to Finnis, the classical
naturalists were not concerned with giving a conceptual account of legal validity; rather they
were concerned with explaining the moral force of law: "the principles of natural law explain the
obligatory force (in the fullest sense of 'obligation') of positive laws, even when those laws
cannot be deduced from those principles" (Finnis 1980, 23-24). On Finnis's view of the Overlap
Thesis, the essential function of law is to provide a justification for state coercion (a view he
shares with Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it cannot
provide an adequate justification for use of the state coercive power and is hence not obligatory
in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of
law. An unjust law, on this view, is legally binding, but is not fully law.

Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis
distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship,
religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in
the sense that it should, given human nature, be valued for its own sake and not merely for the
sake of some other good it can assist in bringing about. Moreover, each of these goods is
universal in the sense that it governs all human cultures at all times. The point of moral
principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral
principles enable us to select among competing goods and to define what a human being can
permissibly do in pursuit of a basic good.

THE PROCEDURAL NATURALISM OF LON L. FULLER

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are
necessary substantivemoral constraints on the content of law. But Fuller, unlike Finnis, believes

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that law is necessarily subject to a procedural morality. On Fuller's view, human activity is
necessarily goal-oriented or purposive in the sense that people engage in a particular activity
because it helps them to achieve some end. Insofar as human activity is essentially purposive,
according to Fuller, particular human activities can be understood only in terms that make
reference to their purposes and ends. Thus, since lawmaking is essentially purposive activity, it
can be understood only in terms that explicitly acknowledge its essential values and purposes:

The only formula that might be called a definition of law offered in these writings is by now
thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of
rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal
system as the product of a sustained purposive effort (Fuller 1964, 106).

To the extent that a definition of law can be given, then, it must include the idea that law's
essential function is to "achiev[e] [social] order through subjecting people's conduct to the
guidance of general rules by which they may themselves orient their behavior" (Fuller 1965,
657).

Fuller's functionalist conception of law implies that nothing can count as law unless it is capable
of performing law's essential function of guiding behavior. And to be capable of performing this
function, a system of rules must satisfy the following principles:

(P1) the rules must be expressed in general terms;

(P2) the rules must be publicly promulgated;

(P3) the rules must be prospective in effect;

(P4) the rules must be expressed in understandable terms;

(P5) the rules must be consistent with one another;

(P6) the rules must not require conduct beyond the powers of the affected parties;

(P7) the rules must not be changed so frequently that the subject cannot rely on them; and

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 (P8) the rules must be administered in a manner consistent with their wording.

On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can
achieve law's essential purpose of achieving social order through the use of rules that guide
behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior
because people will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are "internal" to law in the sense that they are built into the
existence conditions for law.

These internal principles constitute a morality, according to Fuller, because law necessarily has
positive moral value in two respects: (1) law conduces to a state of social order and (2) does so
by respecting human autonomy because rules guide behavior. Since no system of rules can
achieve these morally valuable objectives without minimally complying with the principles of
legality, it follows, on Fuller's view, that they constitute a morality. Since these moral principles
are built into the existence conditions for law, they are internal and hence represent a conceptual
connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller
subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist.

On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy
conflict with morality, as they do in the case of poisoning, it follows that they are distinct from
moral standards. Thus, while Hart concedes that something like Fuller's eight principles are built
into the existence conditions for law, he concludes they do not constitute a conceptual connection
between law and morality.

Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral
ideals of fairness. For example, public promulgation in understandable terms may be a necessary
condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce
rules that have not been publicly promulgated in terms reasonably calculated to give notice of
what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive
rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its

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internal standards of efficacy, but such standards are distinguishable from the principles of
legality in that they conflict with moral ideals.

Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles
of efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent
with considerable divergence from the principles of legality. Legal standards, for example, are
necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And
officials all too often fail to administer the laws in a fair and even-handed manner even in the
best of legal systems. These divergences may always be prima facie objectionable, but they are
inconsistent with a legal system only when they render a legal system incapable of performing its
essential function of guiding behavior. Insofar as these principles are built into the existence
conditions for law, it is because they operate as efficacy conditions and not because they function
as moral ideals.

RONALD DWORKIN'S "THIRD THEORY"

Ronald Dworkin's so-called third theory of law is best understood as a response to legal
positivism, which is essentially constituted by three theoretical commitments: the Social Fact
Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it
is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the
idea here is that what ultimately explains the validity of a law is the presence of certain social
facts, especially formal promulgation by a legislature.

The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts
giving rise to legal validity are authoritative in virtue of a social convention. On this view, the
criteria that determine whether or not any given norm counts as a legal norm are binding because
of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is
authoritative in virtue of the conventional fact that it was formally ratified by all fifty states.The
Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis;
according to the Separability Thesis, there is no conceptual overlap between the notions of law
and morality. As Hart more narrowly construes it, the Separability Thesis is "just the simple

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contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands
of morality, though in fact they have often done so" (Hart 1994, 185-186).

Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards
the authority of which cannot be explained in terms of social facts. In deciding hard cases, for
example, judges often invoke moral principles that Dworkin believes do not derive
their legal authority from the social criteria of legality contained in a rule of recognition.

In Riggs v. Palmer, for example, the court considered the question of whether a murderer could
take under the will of his victim. At the time the case was decided, neither the statutes nor the
case law governing wills expressly prohibited a murderer from taking under his victim's will.
Despite this, the court declined to award the defendant his gift under the will on the ground that
it would be wrong to allow him to profit from such a grievous wrong. On Dworkin's view, the
court decided the case by citing "the principle that no man may profit from his own wrong as a
background standard against which to read the statute of wills and in this way justified a new
interpretation of that statute" (Dworkin 1977, 29).

On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal standards
when it considered this principle. For the Riggs judges would "rightfully" have been criticized
had they failed to consider this principle; if it were merely an extralegal standard, there would be
no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin
concludes that the best explanation for the propriety of such criticism is that principles are part of
the law.

A CRITIQUE OF NATURAL LAW THEORY THE CONFLICT

BETWEEN THE THEORY AND ITS ADHERENTS

At the heart of natural law theory is the idea that everything in existence has a nature which
gives everything in existence a purpose and goal in life, and that all these natures are related such
that everything in existence is in one way or another connected to other things in existence. This
idea makes natural law theory conflict with both atheism and agnosticism. Atheism denies the
existence of a Creator for the universe. This idea conflicts with natural law theory which holds

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that the Creators existence has a purpose; the purpose is considered obvioussomething that is
not under the control of the things in existence. Natural law theory, therefore, holds that life must
be aligned with this purpose rather than secondarily adjusting purpose to life. The idea of a
purpose for lifewith the attribute that purpose dominates existence rather than existence
dominating purposecannot be rationally accepted without first accepting the existence of a
Creator. Nothing else can subject existence to a pre-defined purpose. It is the case, therefore, that
he who denies God must also deny that existence has a purpose; so, he must deny natural law
theory in its entirety.

Furthermore, if relations do indeed exist between the things in existence, as natural law theory
effectively states, then all things in existence must have come into existence at the same time.
And how could all things have come to existence at the same time? For, in the case of the
relations between the things in existence, nothing could exist without the preexistence of its
survival needs in order to sustain it upon arrival. The atheist would argue that all things in
existence evolved from one original thing. This position seems to ignore, however, the
observable fact that existence consists not only of living things but also of non-living things.
Obviously, there exist relationships between the living and the non-living, such as the
dependence on water and sunlight. Equally obvious is the fact that the non-living things in
existence cannot evolve. What the atheist must say, therefore, is that both the living and the non-
living came into existence at the exact same time with perfect relations between one another,
after which the living things evolved in perfect co-ordination between themselves without there
ever developing a conflict in the relations, and all this by sheer coincidence! This is so utterly
unimaginable that one must say he who denies God must also deny the existence of relations
between things; so, he must deny natural law theory in its entirety.

While agnosticism accepts the existence of a Creator, it refuses to research His reality deeply
who He is, why He created creation, et cetera. This position can only be justified if one assumes
that He did not intend anything with His creation and has, since creation, completely
disconnected Himself from His creation, as if He does not care about how His creation proceeds

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in the existence He has given. Natural law theory stands diametrically opposed to this view, as it
claims existence has a purpose. As explained, a purpose can only be given to existence by a
Creator. The presence of a purpose for creation therefore implies that the Creator did not
disconnect from his Creation after creating, as He set for it a course. Therefore, neither the
atheist nor the agnostic can accept natural law theorywhich, by the way, proves Grotius was
wrong when he said, What we have been saying would have a degree of validity even if we
should concede that which cannot be conceded without the utmost wickedness, that there is no
God, or that the affairs of men are of no concern to him. How strange it is, therefore, that
western civilizationwhich refuses God to play an active role in determining the life of
man,today is the ideology of the atheists and the agnosticsutilizes natural law theory.

THE INTERNAL FLAWS OF NATURAL LAW THOERY

As aforementioned, at the heart of natural law theory is the idea that everything in existence has
a nature which gives everything in existence a purpose and goal in life, and all these natures
are related in one way or another, such that everything in existence is somehow connected to
other things in existence. Specifically for the human being, natural law theory adds to this the
idea that the human mind is able to identify the way of life that makes man live in accordance
with his nature. Essentially, it says that if man applies his mind, he will find the natural way of
life, and if he then lives his life in accordance with his nature, then he will fulfill the purpose and
goal of his life; hence, he will experience happiness in life. Also explained earlier is why this is
an implicit acknowledgement of the existence of a Creatorpurpose and relations prove his
existence obligatory.

What natural law theory is effectively saying, therefore, is that the human mind can find the
purpose given to life by the Creator of life simply by looking at the natural inclinations of
creation. Clearly, this idea assumes that satisfaction of the natural inclinations of creation is the
purpose with which the Creator created existence. What is the proof for this? In the absence of
revelation, there is none. The assumption Because man has natural inclinations, it must be his
purpose in life to satisfy these inclinations is purely speculative. It can also be imagined that
the Creator intended (some of) the natural inclinations of creation to be a test for creationthat

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the Creator really wants man to abstain from (some of) what he inclines to. This in turn means
the natural law theory does not have the ability to convince the mind becausebased on these
assumptionsit lacks a rational argument. Natural law theory can only be believed, then, as one
would believe in Christianity or Judaism or Hinduism. So, the truth of the matter is, if one
accepts as fact the existence of a Creator, then one must accept as fact that only the Creator
knows with certainty what He intended with His creation. That only He knows with certainty
how He wants His creation to proceed in its life. In the absence of a revelationas in,
information flowing from the Creator to creationcreation can only speculate about all this.
Natural law theory is not internally consistent, as its conclusion (the mind can determine natural
law) is not lined with its implied assumptions (there is a Creator who cares about creation).

ITS NATURAL YET UNDESIRABLE CONSEQUENCES

If, for just a second, one were to ignore the fact that the human mind cannot determine the
purpose of life in the absence of revelation from the Creator, and just assume the human mind
can determine the purpose of life as the natural law theory claims, then it will be shown that the
natural law theory has very undesirable natural consequences.

The human mind is limited, namely. The human mind can only think about what has been
experienced by man, either directly or by means of reliable narration, for instance. This means
that at any moment in time other than at the end of it, the human mind will not be able to identify
the complete natural law. For, the complete natural law requires man to have experienced all that
can be experienced, and new experiences do not end until time ends. Until the end of time,
therefore, under the natural law theory, the law must follow the experiences of man. So what
natural law theory is really saying to humankind is, Get in trouble first, and then I will come to
rescue you. The guidance of natural law theory will leave man struggling with problems until
the end of time.

The minds of human beings are furthermore prone to disagreement because experiences differ
between humans, as well as their abilities to think. This means that never will there develop a

17
consensus about what the natural laws are. The guidance of natural law theory will, therefore,
leave man in perpetual conflict about what is correct.3

CONCLUSION
Also to say that human laws which conflict with the Divine law are not binding, that is to say, are
not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most
opposed to the will of God, have been and are continually enforced as laws by judicial tribunals.
Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the
penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the
sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall
not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have
impugned the validity (Austin 1995, 158).

Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is
always possible for a court to enforce a law against a person that does not satisfy Austin's own
theory of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the possibility of
moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for
legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the
legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey
Murphy (1990, 18) put the point:

The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate
the law and determine our moral obligations with respect to the law) are actually rendered more
difficult by its collapse of the distinction between morality and law. If we really want to think
about the law from the moral point of view, it may obscure the task if we see law and morality as
3 http://www.newcivilisation.com/home/2358/ideas-philosophy/a-critique-of-natural-
law-theory/

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essentially linked in some way. Moral criticism and reform of law may be aided by an initial
moral skepticism about the law.

There are a couple of problems with this line of objection. First, conceptual naturalism does not
foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can
plausibly be claimed that the content of a norm being enforced by society as law does not
conform to the natural law, this is a legitimate ground of moral criticism: given that the norm
being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not
legally valid. Thus, the state commits wrong by enforcing that norm against private citizens.

Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law
by pointing to its practical implications a strategy that seems to commit a category mistake.
Conceptual jurisprudence assumes the existence of a core of social practices (constituting law)
that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is
to articulate the concept of law in a way that accounts for these pre-existing social practices. A
conceptual theory of law can legitimately be criticized for its failure to adequately account for
the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative
quality or its practical implications.

A more interesting line of argument has recently been taken up by Brian Bix (1996). Following
John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual
naturalists, arguing instead that the claim that an unjust law is not a law should not be taken
literally:

A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust
laws are not laws "in the fullest sense." As we might say of some professional, who had the
necessary degrees and credentials, but seemed nonetheless to lack the necessary ability or
judgment: "she's no lawyer" or "he's no doctor." This only indicates that we do not think that the
title in this case carries with it all the implications it usually does. Similarly, to say that an unjust
law is "not really law" may only be to point out that it does not carry the same moral force or
offer the same reasons for action as laws consistent with "higher law" (Bix 1996, 226).

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Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- naturalism
of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be made
in favor of Bix's view, the long history of construing Aquinas and Blackstone as conceptual
naturalists, along with its pedagogical value in developing other theories of law, ensures that this
practice is likely, for better or worse, to continue indefinitely.

Founded in our nature and revealed to us by our reason, the moral law is known to us in the
measure that reason rings a knowledge of it home to our understanding. The question arises:
How far can man be ignorant of the natural law, which, as St. Paul says, is written in
the human heart (Romans 2:14). The general teaching of theologians is that the supreme and
primary principles are necessarily known to everyone having the actual use of reason. These
principles are really reducible to the primary principle which is expressed by St. Thomas in
the form: "Do good and avoid evil". Wherever we find man we find him with a moral code,
which is founded on the first principle that good is to be done and evil avoided. When we pass
from the universal to more particular conclusions, the case is different. Some follow immediately
from the primary, and are so self-evident that they are reached without any complex course of
reasoning. Such are, for example: "Do not commit adultery"; "Honour your parents".
No person whose reason and moral nature is ever so little developed can remain in ignorance of
such precepts except through his own fault. Another class of conclusions comprises those which
are reached only by a more or less complex course of reasoning. These may remain unknown to,
or be misinterpreted even by persons whose intellectual development is considerable. To reach
these more remote precepts, many facts and minor conclusions must be correctly appreciated,
and, in estimating their value, a person may easily err, and consequently, without moral fault,
come to a false conclusion.

A few theologians of the seventeenth and eighteenth centuries, following some older ones,
maintained that there cannot exist in anyone practical ignorance of the natural law. This opinion
however has no weight .Theoretically speaking, man is capable of acquiring a full knowledge of
the moral law, which is, as we have seen, nothing but the dictates of reason properly
exercised. Actually, taking into consideration the power of passion, prejudice, and other

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influences which cloud the understanding or pervert the will, one can safely say that man,
unaided by supernatural revelation, would not acquire a full and correct knowledge of the
contents of the natural law . In proof we need but recall that the noblest ethical teaching
of pagans, such as the systems of Plato, Aristotle, and the Stoics, was disfigured by
its approbation of shockingly immoral actions and practices.

As the fundamental and all-embracing obligation imposed upon man by the Creator, the natural
law is the one to which all his other obligations are attached. The duties imposed on us in
the supernatural law come home to us, because thenatural law and its exponent, conscience, tell
us that, if God has vouchsafed to us a supernatural revelation with a series of precepts, we are
bound to accept and obey it. The natural law is the foundation of all human law inasmuch as it
ordains that man shall live in society, and society for its constitution requires the existence of an
authority, which shall possess the moral power necessary to control the members and direct them
to the common good. Human laws are valid and equitable only in so far as they correspond with,
and enforce or supplement the natural law; they are null and void when they conflict with it.

Logically, chronologically, and ontologically antecedent to all human society for which it
provides the indispensable basis, the natural or moral law is neitheras Hobbes, in anticipation
of the modern positivistic school, taughta product of social agreement or convention, nor a
mere congeries of the actions, customs, and ways of man, as claimed by the ethicists who,
refusing to acknowledge the First Cause as a Personality with whom one entertains
personal relations, deprive the law of its obligatory basis. It is a true law, for through it the
Divine Mind imposes on the subject minds of His rational creatures their obligations and
prescribes their duties.4

4 http://www.newadvent.org/cathen/09076a.htm

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 BIBLIOGRAPHY
o http://www.newadvent.org/cathen/09076a.htm
o http://www.iep.utm.edu/natlaw
o http://www.newcivilisation.com/home/2358/ideas-philosophy/a-critique-of-natural-law-
theory/
o http://en.wikipedia.org/wiki/Law

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