Arguelles, Keilah Shem S.

BL/1st yr/Block B
Natural Law
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 those morality plays
in determining the authority of legal norms, namely:
1. 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.
2. Classical natural law theory of Thomas Aquinas- focuses on the
overlap between natural law moral and legal theories.
3. Neo-naturalism of John Finnis- is a development of classical
natural law theory.
4. 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.
5. Ronald Dworkin’s 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.

1. Two Kinds of Natural Law Theory

a. Theory of morality, characterized by the following:

1. 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.

2. 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

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.

Overlap Thesis- The idea that the concepts of law and morality
intersect in some way.
 2. Conceptual Naturalism

a. The Project of Conceptual Jurisprudence

The principal objective of conceptual (or analytic) jurisprudence has
traditionally been to provide an account of what distinguishes law as
a system of norms from other systems of norms, such as ethical
norms.

While this task is usually interpreted as an attempt to analyze the

concepts of law and legal system, there is some confusion as to both
the value and character of conceptual analysis in philosophy of law.

b. Classical Natural Law Theory

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

- 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.

2. Natural law

- 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.

3. Human law

- Law that is promulgated by human beings and is valid only insofar

as its content conforms to the content of the natural law

4. Divine law

- 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.
 3. The Substantive Neo-Naturalism of John 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).

4. The Procedural Naturalism of Lon L. Fuller

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

5. Ronald Dworkin's "Third Theory"

Dworkin believes that a legal principle maximally contributes to such

a justification if and only if it satisfies two conditions:

1. The principle coheres with existing legal materials.

 2. The principle is the most morally attractive standard that
satisfies the correct legal principle is the one that makes the law
the moral best it can be.

There are, thus, two elements of a successful interpretation, namely:

1. Since an interpretation is successful insofar as it justifies the

particular practices of a particular society, the interpretation
must fit with those practices in the sense that it coheres with
existing legal materials defining the practices.
2. Since an interpretation provides a moral justification for those
practices, it must present them in the best possible moral light.