What is law?
We judge claims like “It is illegal in society S to do X” or “It is legal in society S to do Y” to be true or false. To do this, we need to know the content of the law in society S. But what is it that gives law its content? Legal Positivism: law’s content is given by social facts, e.g. “The Congress has passed a bill banning X, and the President has signed it,” or perhaps “Since its earliest days, the community has always exiled people who do X.” Natural Law Theory: law’s content is given by social facts together with moral facts.
Classical Natural Law Theory
Classic Natural Law Theorists: Cicero, Augustine, Aquinas.
Aquinas on Law
1) Eternal law = principles of order God has implanted into things, which define their various functions. 2) Natural law = principles of eternal law applicable to human beings. This is derived from our characteristic mode of functioning, namely, our rationality. Simplifying, we might describe the essence of the natural law as Be Reasonable!
3) Divine law = the law it is necessary to follow for salvation. 4) Human law = Rules framed by head of community for the common good. (“Law is nothing else than an ordinance of reason for the common good, promulgated by him who has the care of the community.”) Aquinas: “[E]very human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.” Motto of Aquinas’s Natural Law Theory: An unjust law is no law at all. How should we interpret this motto? Ontological interpretation: An unjust “law” is legally null and void, a “counterfeit law,” a non-existent law. Deontic interpretation: An unjust law exists as a law, but not as a morally binding law. We have no moral duty to heed it. Modern scholars debate over which interpretation Aquinas meant. But traditionally the ontological interpretation has been assumed. Questions for Natural Law Theory, so understood:
Does any degree of injustice render a “law” null and void? Or is this true only of egregiously unjust “laws”? Consequences of Natural Law Theory: You’ve no legal obligation to obey an (egregiously?) unjust law. That is , you can fail to follow that “law” without being a lawbreaker. Courts can, consistent with their legal obligations, refuse to enforce that “law.” In following that “law” you cannot later claim as an excuse that you were acting lawfully.