Definition of Natural Law
Rational order which exists in nature and is discoverable by human reason. It constitutes a higher form of law which all man-made laws must adhere to in order to have full legitimacy.
Everything has an optimum state which they strive to become. God directs people towards their ultimate end through eternal law. Law is a set of rules for guiding our conduct which reason reveals are the route to human flourishing.
Natural Law would still retain its validity even if God did not exist, there is no need for a theological basis. The emphasis has switched from natural law to natural rights which everybody should be allowed to enjoy. If a government infringes upon people's natural rights they should be able to overthrow the government and so this provides justification for the American and French revolutions.
Distinguished between the focal meaning of law (rules which secure the common good by co-ordinating the different goals of individuals) and the secondary meaning of law (undeveloped, primitive, corrupt and deviant laws which sit alongside focal laws). Focal laws help achieve the central case (securing ensemble of materials that favour realisation of personal development).
7 objective goals which can only be pursued in communal life, we are guided in our pursuit of these goals by the requirements of practical reasonableness (impartiality). Sound human laws will seek to implement these requirements.
Lloyd Weinreb criticises this view as he says there is no reference as to what forms the law will take. It is a principle that we do not kill, but this does not tell us anything about whether the law will permit self defence and other exceptions.
Law is activity with a certain purpose and it is the enterprise of subjecting human conduct to the governance of rules, which has a certain inner logic of its own.
If the law is procedurally defective, people will not be able to follow them as rules, and they will not function as law. There are certain principles of legality which laws must fulfil, such as prospectiveness, availability and application to all people. It is a necessary truth that the law must satsify these in order to be effective. These principles constitute the moral ideal as defects would make for unjust law. Therefore, we cannot describe the nature of law without recourse to moral concepts.
This is a procedural version of natural law which focuses on the characteristics of a set of rules if they are to amount to a good legal system. The ideal of legality, which is a moral concept, is therefore built into our definition of a legal system.
Hart disputes this view. He claims that the principles of legality only refer to the effectiveness of the law and not whether it is morally good or not. The principles are equally as compatible with bad laws.
Fuller hits back by saying that if the principles of legality are followed, law-makers will naturally enact good law as they will need to explain it to others.
Dworkin criticises what he calls the 'plain-fact' view of law. Under this view, all legal rules are a matter of historical fact and are never based upon morality. The criteria of legality therefore emanates from social sources.
He claims that this view cannot be correct as judges always resort to moral principles to resolve legal disputes, these principles are part of law by virtue of their moral merits. This is evident in the case of Riggs v Palmer, where the judges were unwilling to apply the existing legal rules as these would allow the defendant to benefit from his crime, which is morally unacceptable outcome. Dworkin says this is a huge blow to many positivist theories.
However, Dworkin's views can be disputed. He appears to assume that all positvists rely on the plain-fact view of the law, but Hart's inclusive positivism shows this is not always the case.