Natural Law Theory

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  • Created by: Launston
  • Created on: 12-05-14 10:54
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  • Natural Law Theory
    • Refers to a rational order which exists in nature and is discoverable by human reason
      • Constitutes a higher form of Law which is based on morals
    • Thomas Aquinas
      • God directs everything towards its ultimate end/goal (eternal law) by giving us rules to follow to achieve our optimal state
        • Law is rules for guiding our conduct which reason reveals are the route to human flourishing
    • Hugo Grotius
      • Natural Law would still retain its validity even if God did not exist
        • There is an emphasis on natural rights which everybody should be entitled to and have upheld
          • Natural rights are the justification for the American and French revolutions
            • If a government removes people's natural rights, they have the power to revolt and overturn them
    • John Finnis
      • Focal meaning of the Law is rules which secure the common good by co-ordinating the different goals of individuals
        • These rules allow us to achieve the central case of law - securing ensemble of material that help to favour realization of personal development
          • Secondary meaning of law are rules which are undeveloped, primitive, corrupt and deviant - these sit alongside the moralised account of law
            • 7 objective goods which can only be pursued through a communal life
              • We are guided in our pursuit of these goods by requirements of practical reasonableness (such as impartiality) which is a mode of moral obligation
                • Sound human laws will seek to implement these requirements
                  • Lloyd Weinreb - there is no reference to the degree of specificity these laws will take
                    • Not killing is recognised to be a rule but this does not tell us about the exceptions which will exist in the law (self defence)
              • Raz - why are these goods valuable? Who decides these
    • Lon Fuller
      • Law refers to activity with a certain purpose
        • Law is the enterprise of subjecting human conduct to the governance of rules with a certain inner logic of its own
          • If laws have procedural defects, they cannot be followed as rules, so they are technically not law at all
            • Principles of legality suggest that law must conform to these procedural standards, if law is defective it is unjust (retrospective) so procedurally correct law makes for the moral ideal
              • Therefore, you cannot describe the nature of law without recourse to moral concepts
                • This is a procedural version of natural law theory
                  • Focus on the inner characteristics which must be displayed by a system of rules for it to be a legal system - legality is built into our idea of a legal system
              • Hart - principles of legality are only relevant to a law's effectiveness and not substance - can be procedurally correct bad laws
                • Fuller - when law-makers are asked to explain their reasoning, they will more likely pull their decisions towards 'good'
    • Ronald Dworkin
      • Plain-fact view of law - law always historical fact and never morality - legality from social sources
        • Criticises this - judges always resort to moral principles to resolve legal disputes - law by virtue or moral merits
          • Riggs v Palmer decision is based on morals (people cannot benefit from their crime)
            • Judges relying on value judgments like these present a problem for positivists
              • However, Dworkin assumes that positivism is committed to plain-fact view - not always the case


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