Chapter Five Natural Law Theory and John Finnis ‘We take it for granted that the laws and legal system under which we live can be criticised on moral grounds, that there are standards against ‘which legal norms can be compared and sometimes found wanting, ‘The standards against which law is judged have sometimes been described fas “a (the) higher law”"' For some, this is meant literally: that there are law-like standards that have been stated in or can be derived from divine revelation, religious texts, a careful study of human nature, or consideration of Nature. For others, the reference to “higher law” is ‘meant metaphorically in which case it at least reflects our mixed int tions about the moral status of law: on one hand, that not everything properly enacted as law is binding morally; on the other hand, that the fay, as law, does have moral weight—it should nae be simply ignored in determining what isthe right thing to do. (To clarify this last point {ifthe law had no intrinsic moral weight, we would feel na need to point toa “higher law” asa justification for ignoring the requirements of our society's laws) ‘TRADITIONAL NATURAL LAW THEORY ‘The approach traditionally associated with the tle “natural law” focused on arguments for the existence of a “higher law”, elaborations ofits content, and analyses of what should follow from the existence ‘of “higher law” fin particular, what response citizens should have to situations where the postive law—the law enacted within particular societies—conficts with the “higher law")? " Sce Beanz Wieacer, A Hier of Pit Lao in Bape (F. Wei, an, Clarendon Pest sire, 1905), p. 205, # Some of the moder writer who ate sominesauccated with natural lw, ike Lom Faler and Ronald Dworkin, have approaches fr outside the traiion deserted in thi Chup Bot Faller (Ch, Band Dn Ch, 7) are diced eater a arinWhile one can express what appr repeal ay part af jot be fred from its obligato Sra ce epeak ofbigher for an expaunder sf ienaiurs of the connection between t divine commands: for example, whed As noted, most of the themes present in Gicero (though, as m al law, natural ! purposes, the deserve [the] de ee ived from natural law. This re the positive law should be work, and Fito, “Laws”, Bo haps * Aguins, Senna Th 2 pa 2, ccmpus, in The Trae a LawNATURAL LAW THEORY AN car regulation of “ i g should be ajust™ aw”) is rit Aquinas never used the c= extent conflicts Boak ¥ ‘TRADITIONAL NATURAL LAW THEORY Ww"? Statements cted in one of tw laws are of any vali manner ted we impugned the v we should not conflate questions of power -for a corrupt legal system might that the putative law was we understa thesame moral force or of laws cons ‘The Posie of Furie Darina (W. oy Pres, types". See Max Weber, Tie and Finch eds, FrR [NATURAL LAW THEORY’ AND JOHN FINES 18 and the probable interpretation for nearly “Aquinas made his remarks, and the probable inter vs not law in the falls sense “4 intended not as 4 tegument. For exam forse and thereto reasons for a generally just legal system, an “ea eh just aw. There en's no bound subjects ifthe las cal Se fas been articulated at greater length by andes bea Jobn Finis as dscssed elo ey ratand Aquinas's perspective a nora Teng wthout purporting tobe inespreting ve cone ing the prominent exponents ofthis pesiton are us doch ark Morphy, 224 PAID Sp caus ofa ich at al aw cory is in some ways more the suc fa Aa ahr than the ful chica estem ie For mow of cg i enn a ie practical ge done and waght and eu 10 be avoided tor Pe prescriptions on specific moral issues more Thay have been that the teachings public dob int ofthis position in Aquinas or greater’ natural law theor ee vet wen a ni cia pwc ea a ron Cocos, 8 rie. 321s ee ‘Fal or dtriances” Bid at 'M. Fens Asis 4, corps, in The Ti eesary “0 a0 30-362 Epes ad Supe om and MEDIEVAL AND RENAISSANCE THEORISTS 3 and the holy books, combined with the reflections of a wise ‘would be sufficient to il in the content of the moral system. MEDIEVAL AND RENAISSANCE THEORISTS In later centuries, discussions abo law were tied in with other issues: asertions about natural law were often the basis of or part of the argument for individual rights and limitations on government; and such discussions were also the groundwork offered for the principles of what ‘would become mown as “international law”. Francisco Suarez (1548-1617) is regarded as the greatest scholastic rural law theory breaks ‘Suarez’s understanding of the “nature” in cdge of the good derived from knowledge of Jhumman nature, in contrast to Aquinas, who had advocated the converse ments can legitimately do, and how nations can legitimately act towards tne another.”” As based on Reason, this was a natural law, as Grotins himself wrote, that dividual rights, and ry, Grotius opened ies of, eg. John Locke (1632-1704) and Jean-Jacques Rousseau (1712-1778) * Ok iit atpp. 245-240, were Aquinas dingy {wall and dow that are slf-vident only the Pein the tues of ll” era “reo? in See, Tiana, Nawal Law nd Nasal Rigi, pp. 45-46; Robert P. George, "Natural | Lave Bi” in A Cain te Phila of Rtg PL. Quinn aod C. Tabalereo eds _p Masel, Oxo, 197). 462 Sexe, Wieacher, A ity of Pre Zw ix Fae, pp 227-296; J. M. Kelly, A Shr isn af Waters Lege Ther (Claendon Press, Oxford, 1982), pp. 324-227, 241-248 ieetiveess ¢ akuplifcation, and a lot oii roposiions which areselFevidentJouN ensis aw THEORY AND, JOHN FINNIS| odern anal id with a social-sc rlern advocates of le I iaw at Jeast since Laws ‘of basic goods, he does not m 1s Eneylical, “il ees ppalconsid foreclosedee FINNS Ddetween noral reasons for ac an ‘one can locate al positivism, Lory of law isnot and George. natural law the Legal Arian Pipe di Gronge80 [NATURAL LAW THEORY AND JORN Frits NATURAL LAW THEORY al iety should follow certain jn the Dividing Line [Natural Law Theory and Legal Positivism”, to be those of classical le Dame Lae Reiew 00) % and Legal Philsophy, in Bdward theory based on & metaphyskally reais (Patni theory of my See Pox Php, h/t ei and meaning.” Inas-moral-palitic _ . » dartmouth Pub. Go., London; New York es (wide-ranging collection of law review Suggested Further Reading — (Oxford University Press, Oxford 2011} tington, R. Daniel Kelemen and Gregory A. Caldeira, ecb. : (Georgecown University Press, Washingtonyeraty Press, Oxford, 2008), pp. 399413, Marphy, Natiad Law in ergradence and Poles (Cambridge University Cambridge, 2006), Natural Law Tracition in Ethics" in E, N, Zalts ed, Sanford Enlopedia ://platostanford.edu/entces/natural-law-thies/ (201, b, Natural Law and Fustce (Harvard University Press, Cambridge, and defense of Finn's theory) NATURAL LAW THEORY ‘Thomas Aquinas, The Ts Press, Notre Dame |Chapter Six eee EEE Understanding Lon Fuller A DIFFERENT KIND OF NATURAL LAW THEORY tapter offered an overview of natural law ‘offered an overview of one ype of natural law as “traditional natural law theory”. One theorists who have been labelled—or who have beled themsclvesas “natural law theorists” nto two groupe The tag Sib, would include dhe theorists discussed in Ch. 5: Cicero, Aquinas ies are by no means theoretical concernsike Hart, category of nurast badly constructed behaviour, then we are nt out that those tirely free w id adapt to the external order, wrote of systems being “leg system which partly but not fully me Jegal” and could be said to have “displayed a greater respect89 Fuller debate a system of tive law process s Suggested Further Reading Symposiam on Lon at stake (for example, w bey the law), le University Pres, New Pres, Stanford, 1984).