Intro to Natural Law

Question 1

What is a brief description of Natural Law?

Answer 1

• Natural law is associated with the idea that a human law must be backed by decisive reasons for action
• Usually those reasons are divine or to achieve a common good
• This differs from legal positivism where so long as it is made by the appropriate authority, one has total obligation to follow the law.

Question 2

What is a strong thesis of natural law?

Answer 2

• If a human law fails to be backed-up by decisive reasons, then it is not properly called a “law” at all
• “lex injusta non est lex”= an unjust law is no law at all
• Aquinas, Locke, Grotius (notably all older jurists)
• critics: very black and white

Question 3

What is a weak thesis of natural law?

Answer 3

• If a human law fails to be backed-up by decisive reasons, then it can still be called a “law”, but it must be recognised as a defective law.
• examples: Finnis, Alexy, Murphy, Radbruch
• Alexy’s Qulificatory (defective?) and Classificatory (validity?) consequences.
• eg: Fuller believes that a partial failure of his 8 deseridata would only amount to a qualificatory, and not classificatory consequence (to use Alexy’s terms) and the law would only be defective, not actually invalid.

Question 4

What is the substantive component of natural law?

Answer 4

• Morality provides substantive constraints on content of individual laws.
• everyone besides Hart and Fuller

Question 5

What is the procedural component of natural law?

Answer 5

•How law is administered and constructed.
• morality constraints the entire legal system
eg: Hart and Fuller

Question 6

What is the relationship between Natural Law and Legal Positivism?

Answer 6

• some Natural Jurists agree with Legal Positivists that there are some scenarios where law is authoritative even thought it is unjust
[eg: Radbruch, Finnis, Alecy]
• More modern Natural Jurists realise the importance of certainty being prioritised over morality (to a certain limit)
[Eg: Radbruch’s 1st Formula]

Question 7

What is the relationship between Natural Law and Current Law?

Answer 7

in common law systems: “judges consider themselves to be legally free (and perhaps morally bound) to change law this way.” (can’t find article again)