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natural law

Last modified: Thu Feb 23 16:37:37 2006

Natural law theories of jurisprudence take the view that law is, or should be, derived from some higher principle than mere social good. What that higher principle is varies from one theory to another. For many, of course, the higher principle is the will of God; this view can be traced back at least as far as the Roman writer Cicero. Others have argued that there is an objective standard of ethics that underlies all valid law, or that there are universal values that all decent societies adhere to. The feature of natural law theories that has experienced most sustained criticism is not, perhaps surprisingly, the view that law should be developed under the guidance of some higher principle. John Austin, a particularly vociferous critic of natural law, would probably have agreed with this. Instead the main criticism is that natural law thinkers tend to believe that law and morality can be equated in some way. There is in natural law an implicit notion that an unjust law is not, in some sense, a `law' at all. For supporters of LegalPositivism this is simply nonsense. Even the most unjust and despotic pronouncement can be a law, if it has the charactersitics of law. For positivists, it is not justice or goodness that makes a law, it is something else entirely. What that `something else' is distinguishes different positivist theories in the same way that different natural law theories are differentiated by the underlying principles they espouse.

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