Traditional natural law Natural law theorists focus on morality and use it to make sure that we have the correct kinds of law Objective is to learn what we can do to make our legal system a better legal system from a moral standpoint Natural law is not descriptive, prescriptive (what we should do) it’s Foundations Divine origin - Beyond the natural realm, exists some realm of divinity and we have an objective moral order with a divine origin Supreme being has created a moral order where thinks are objectively right or wrong Metaphysical rules on par with physical rules not scripture, may provide Religious revelation, through reasoning points of guidance Self-evident - All men are created equal (not obvious to everyone) Natural Law Tradition Handout John Finnis Positive law is supposed to be close to natural law, but an institutional it’s question as to who decides how natural law should be reflected The debate is not between positive and natural law, but between the separation of power The courts should make sure the positive law reflects the content of the natural/moral law A positivist believes that the legislatures should make sure the natural law principle of equality is reflected Robert George George builds on thought Finnis’ The natural law does not tell us how to make positive law conform to natural law It say we need separation of powers or federalism doesn’t Finnis On Unjust Laws Hart thinks that the focus of natural law is on unjust law However, Finnis says unjust law, or how we respond to legal injustice is important, but it is just a subordinate concern The central concern of natural law is engaging in moral analysis to guide the creation of positive law Types of Injustice - ways in which positive law can be unjust Intent An improperly motivated law can still be compatible with justice and promote the common good A use of authority is radically defective if he exploits his opportunities by ruler’s making stipulations that favors himself over the common good or out of malice against a person or group
Traditional natural law Natural law theorists focus on morality and use it to make sure that we have the correct kinds of law Objective is to learn what we can do to make our legal system a better legal system from a moral standpoint Natural law is not descriptive, it’s prescriptive (what we should do) Foundations Divine origin - Beyond the natural realm, exists some realm of divinity and we have an objective moral order with a divine origin Supreme being has created a moral order where thinks are objectively right or wrong Metaphysical rules on par with physical rules Religious revelation, through reasoning not scripture, may provide points of guidance Self-evident - All men are created equal (not obvious to everyone) Natural Law Tradition Handout John Finnis Positive law is supposed to be close to natural law, but it’s an institutional question as to who decides how natural law should be reflected The debate is not between positive and natural law, but between the separation of power The courts should make sure the positive law reflects the content of the natural/moral law A positivist believes that the legislatures should make sure the natural law principle of equality is reflected Robert George George builds on Finnis’ thought The natural law does not tell us how to make positive law conform to natural law It doesn’t say we need separation of powers or federalism Finnis On Unjust Laws Hart thinks that the focus of natural law is on unjust law However, Finnis says unjust law, or how we respond to legal injustice is important, but it is just a subordinate concern The central concern of natural law is engaging in moral analysis to guide the creation of positive law Types of Injustice - ways in which positive law can be unjust Intent An improperly motivated law can still be compatible with justice and promote the common good A ruler’s use of authority is radically defective if he exploits his opportunities by making stipulations that favors himself over the common good or out of malice against a person or group