Natural Law Theory

Brian Bix

Natural Law
Traditional
o Offers arguments for the existence of a higher law
Literally: derived from divine revelation, religious texts, careful
study of human nature, or consideration of nature.
Metaphorically: reflects mixed intuitions about the moral status
of law
Not everything properly enacted as law is binding morally.
The law, as law, does have moral weight.
Modern

I. Traditional Natural Law Theory
Cicero
o History
1. Wrote in the first century bc
2. Strongly influenced by the works of the Greek Stoic
philosophers
o Characterization of natural law
1. Its unchanging over time
2. Does not differ in different societies
3. Every person has access to the standards of this higher
law by use of reason
4. Only just laws really deserve the name law
5. Theres the idea and principle of choosing what is just
and true
o Ambiguity regarding the reference of natural in natural law
1. Whether the standards were natural because they
derived from human nature
2. Because they were accessible by our natural faculties
3. Because they derived from or were expressed in nature
(physical world)
4. Or some combination of the first three
o Classical writers: source for higher standards is said to be
inherent in the nature of things
o Early Church writers: there is a divine being who actively
intervenes in human affairs. . .
Thomas Aquinas
o History
1. Most influential writer within the traditional approach to
natural law
2. Wrote in the thirteenth century
o Different kinds of law:
1. Eternal law
2. Natural law
3. Divine law
4. Human (positive) law derived from natural law
a. Different aspects:
i. Sometimes natural law dictates what
positive law should be (this first form is like
logical deduction)
ii. Other times, it leaves room for human
choice (referred to as the determination of
general principles)
o Just versus unjust laws
1. Just law
a. Positive laws which are just have the power of
binding in conscience
b. Consistent with the requirements of natural law
i. Ordered to the common good
ii. Law-giver has not exceeded its authority
iii. And the laws burdens are imposed on
citizens fairly
2. Unjust law
a. No obligation to obey that law
b. Lex iniusta non est lex (an unjust law is not law)
i. An immoral law is not a valid law at all
ii. Are not laws in the fullest sense
iii. Does not carry the same moral force or
offer the same reasons for action
3. There are often moral reasons for obeying an unjust law.
4. A citizen is not bound to obey a law which imposes an
unjust burden on its subjects if the law can be resister
without scandal or greater harm.
Natural Law in Early Modern Europe
o Renaissance and beyond
o Assertions about natural law
1. Often the basis of or part of the argument for individual
rights and limitations on government
2. Such discussions were also often the groundwork offered
for principles of international law
3. Natural law did not require the existence of God for its
validity (Hugo Grotius)
o Secular in tone and purpose usually referring to requirements
of reason rather than divine command, purpose, will, or wisdom
Perspective
o Cicero, Aquinas and Grotius
1. Were not concerned with a social-scientific-style analysis
of law
2. Were concerned with what legislators and citizens and
governments ought to do, or could do in good conscience
3. However, they were asking the questions as a starting
point for an ethical inquiry
o Natural law has escaped the confines of theory to influence
directly the standards created and applied by officials.
John Finnis
o His work is an explication and application of Aquinas views
1. Application of ethical questions but with special attention
to the problems of social theory. . .
o Ethical theory
1. Foundation: there are a number of distinct but equally
valuable intrinsic goods basic goods
a. Self-evident cannot be derived from some
foundational proposition but can be supported by
consistent data of experience. . .
2. Natural Law and Rights: Life (and health), knowledge,
play, aesthetic experience, sociability (friendship),
practical reasonableness, and religion
3. Difference between right and wrong cannot be drawn at
the level of basic goods
4. Ethics and morality: second level in Finnis theory
a. There must be principles to guide choice when
alternative courses of conduct promote different
goods
b. Contrast: utilitarian moral theories, under which all
goods can be compared according to their value in
a single unit
5. Morality: offers a basis for rejecting certain available
choices (but there will often remain more than one
equally legitimate choice)
6. Basic requirements of practical reasonableness series
of intermediate principles where the move from basic
goods to moral choices occur
a. The end never justifies the means where the
chosen means entails intending to harm a basic
good
7. Law
a. A way of effecting some goods that could not be
effected without law
b. Also enters as a way of making it easier to obtain
other goods
8. Obligation: to comply with the requirements of an unjust
law only to the extent that is compatible with moral
norms and necessary to uphold just institutions. . .
9. Proper ethical theory is necessary for doing descriptive
theory because evaluation is a necessary and integral
part of theory formation
a. When doing legal theory, one should not take the
perspective of those who accept the law as valid
b. Theory should assume the perspective of those
who accept law as binding (because they believe
that valid legal rules create moral obligations
II. Modern Natural Law Theory
First group: Cicero, Aquinas, Grotius, Finnis, etc.
o Generally taking a particular position on the status of morality
o Had implications for how legislators, judges and citizens should
act (as well as for all other aspects of living a good life)
Second group: focuses more narrowly on the proper understanding of
law as a social institution or a social practice
o Arises as responses to legal positivism and the way legal
positivists portrayed traditional natural law positions
o Contains theories specifically about law, which hold that moral
evaluation is required in describing law in general. . .
The two types of approaches are not contradictory or inconsistent but
they reflect different sets of theoretical concerns. . .
H. L. A. Hart: demarcation of legal positivism from natural law theory
offered conceptual separation of law and morality

a. Lon Fuller
i. Rejected legal positivisms distorted view of law as one-way
projection of authority: government gives orders and the
citizens obey
1. This approach missed the need for cooperation and
reciprocal obligations. . .
ii. Law
1. The enterprise of subjecting human conduct to the
governance of rules:
2. A form of guiding people
3. A particular means to an end, a particular kind of tool
4. If a systems rules are so badly constructed that they
cannot succeed in effectively guiding behavior, then we
are justified in withholding the label law from them
iii. Internal morality
1. A threshold that must be met, a test that must be passed,
before something could be called law
a. Test is one of function than of moral content
b. Questions of procedure have moral implications
2. Consists of series of requirements which Fuller asserted
that a system of rules must meet. . .
3. The eight requirements:
a. Laws should be general
b. Should be promulgated
c. Retroactive rule-making and application should be
minimized
d. Laws should be understandable
e. Should not be contradictory
f. Should not require conduct beyond the abilities of
those affected
g. Should remain relatively constant through time
h. There should be congruence between the laws as
announced and their actual administration
4. Procedural theory, as distinguished from a substantive
natural law
iv. Fullers principles of legality
1. were amoral solutions to problems of efficiency
2. Following the rules
a. A good thing
b. It is not stretching matters to characterize it as a
moral matter and a matter of justice
3. Adherence to the internal requirements of law was as
consistent with a bad legal system as they were to a good
legal system
a. Government which is just and good will likely also
do well in procedural matters
b. When proper procedures are followed, some
officials might be less willing to act in corrupt ways
4. Can be understood as guidelines for making the legal
system more effective in guiding citizen behavior
a. Following the principles of legality is in itself a
moral good
b. The fact that a government follows those principles
may indicate that it is committed to morally good
actions
c. That following such principles may hinder or
restrict base actions
On the other hand,
a. It is probably claiming too much to say that
following those principles would guarantee a
substantively just system
b. Should not conclude that the evaluation of Fullers
entire approach to law should turn on the empirical
question of whether there have ever been wicked
governments which followed the rules of
procedural justice
v. Fullers position
1. That a value judgement about the system described is
part of the way we use the word law
2. That there is analytic value to seeing law as a particular
kind of social guidance. . .
3. Would not be undermined by pointing out legal systems
which were substantively unjust but which seemed to do
well on questions of procedural justice
vi. It is always open to theorists to stipulate the meaning of the
terms they use, even for the limited purpose of a discussion
b. Ronald Dworkin
i. As a legal theorist
1. Probably the most influential English-language legal
theorist now writing
2. He challenged a particular view of legal positivism
a. A view which saw law as being comprised entirely
of rules
b. And judges have discretion in their decision
making where the dispute before them was not
covered by any existing rule
ii. According to law
1. The resources for resolving disputes were more
numerous and varied
2. The process of determining what the law required in a
particular case was more subtle
3. Along with rules, legal systems also contain principles
a. Principles do not act in an all-or-nothing fashion
4. Principles have weight, they favor one result or another
5. Legal principles are moral propositions that are grounded
past official acts
iii. Judges
1. Are told to decide cases based not on whatever principles
(critical) morality might require
2. Should consider a variety of view of what the law requires
in question, rejecting those which do not adequately fit
past official actions
3. Would choose the theory which was morally best, which
made the law the best that it could be
iv. Legal principles: Dworkin argued for its existence by reference
to legal practice
v. Two tenets
1. That law contained principles as well as rules
2. That for nearly all legal questions, there was a unique
right answer
vi. Constructive interpretation
1. Both law and legal theory are best understood as its
processes
2. Both an imposition of form upon the object being
interpreted and a derivation of form from it
vii. Integrity: the argument that judges should decide cases in a way
which makes the law more coherent. . .
viii. Evaluation of theories takes into account
1. A view about the purpose of law in general
2. A view about the objectives of the particular area of law in
which the question falls
ix. Aspects of legal writing that are not easily explained with the
confines of legal positivism:
1. Participants in the legal system argue over even basic
aspects of the way the system works
2. Even in the hardest cases, lawyers and judges speak as
if there were a unique correct answer which the judge has
a duty to discover
3. Both the judges and commentators often speak of the
new rule having already been present or the law
working itself pure
x. Key to understanding
1. Judges and legal theorists should not look at law with
rose-colored glasses
2. Should describe law as it is
3. Must understand Dworkins response to the fact that
there is no simple description of law as it is
4. Law as it is is only the collection of past official
decisions by judges and legislators
a. These cannot offer an answer to a current legal
question until some order is imposed upon them
c. General Considerations
i. Nature/status of claims being made: not immediately clear
1. Could be merely sociological or lexicographical
2. Could be argued that, for better or worse, the way most
people would use the word law includes a moral claim
ii. Normative claim: that law and legal theory are morally better
than the same practices as viewed through the alternative
characterizations of other theories
II. Other Modern Writers
a. Michael Moore: simple descriptive terms, legal terms, and moral
concepts all have meaning determined by the way the world is. . .
b. Lloyd Weinreb: the works of the ancient classical theories were
concerned with the problem of explaining the possibility of human
moral freedom. . .
c. Ernest Weinrib:
i. Law as having an immanent moral rationality, one can speak
of the essence/nature of the law. . .
ii. The essence of law can be worked out to particular normative
propositions. . .
d. Alan Gerwith: engaging in practical reasoning presupposed a
commitment to a number of moral principles
e. Deryck Beyleveld and Roger Brownsword: Gerwiths analysis requires
a rejection of legal positivism in favor of an equation of law with morally
legitimate power
III. Conclusion
a. Traditional natural law theory: sets out a moral theory in which one can
better analyze how to think about and act on legal matters
b. Modern natural law theory: one cannot properly understand or describe
the law without moral evaluation