THEORIES OF LAW
Natural Law, Legal Positivism,
The Morality of Law
Dworkin's "Third Theory of Law"
Legal Realism and Critical Legal
Studies
1. Thomas Aquinas and Natural Law Theory
Natural law theory like legal positivism has appeared in a variety of forms and in many
guises. One of the most elaborate statements of natural law theory can be found in
Aquinas who distinguished four types of law: eternal, divine, natural, and man-made. So,
according to Aquinas, eternal law reflected God's grand design for the whole shebang.
Divine law was that set of principles revealed by Scripture, and natural law was eternal
law as it applied to human conduct. Man-made law was constructed by human beings to
fit and accommodate the requirements of natural law to the needs and contexts of
different and changing societies. Also, according to Aquinas, the fundamental precepts of
natural law were not only ascertainable (mere mortals like you and me could and did find
them out) but self-evident, i.e., they required no proof. They were, in Aquinas' terms, per
se nota, known through themselves. Like his predecessor, Aristotle, Aquinas
distinguished two kinds of reasoning: theoretical and practical. Human beings were
capable of both sorts of reasoning. Theoretical reason was the capacity to apprehend
certain truths, such as the truths of mathematics. Practical reason was the capacity to
apprehend those principles guiding human conduct which tell us how we ought to live,
what things we should value, what goods we should seek, and how we ought to order our
lives. Like Aristotle, Aquinas believed that there were principles of practical reason and
that they were no less fundamental than the principles of theoretical or speculative
reason. Thus, for Aquinas, the principle of non-contradiction was as self-evident as the
first and most fundamental principle of natural law ("Good is to be done and evil is to be
avoided"). Like the principle of non-contradiction, the precepts of natural law were,
according to Aquinas, general and unchanging. They were the same for everyone. But
man-made or human law has to take the particularities of each human situation into
account. Man-made law must adjust natural law to specific and often changing
circumstances. Man made law is accommodating and changeable. Furthermore, there are
1
,areas of human conduct where natural law does not spell out the particular ways that
human beings ought to behave themselves. Natural law does not dictate, for example, that
we drive on the right hand side of the road. Human communities require a host of
regulations simply in order to function (traffic and tax laws). But even these regulations
are guided, albeit somewhat distantly, by natural law, i.e., by the requirement of natural
law that health and safety be protected. Man-made law may, of course, conflict with
natural law or fail to capture some fundamental feature. Aquinas argued that human laws
that contravene natural law are "acts of violence," and "a perversion of law." Such laws
he argued do not bind the conscience. They have no legal validity and cease, in this
regard, to be law.
2. Martin Luther King's "Letter from a Birmingham
Jail"
King: "You express a great deal of anxiety over our willingness to break laws. This is
certainly a legitimate concern. Since we so diligently urge people to obey the Supreme
Court's decision of 1954 outlawing segregation in the public schools, it is rather strange
and paradoxical to find us consciously breaking laws. One may well ask 'How can you
advocate breaking some laws and obeying others?' The answer is found in the fact that
there are two types of laws: there are just and there are unjust laws. I would agree with
Saint Augustine that 'An unjust law is no law at all.' . . . A just law is a man-made code
that squares with the moral law or the law of God. An unjust law is a code that is out of
harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust
law is a human law that is not rooted in eternal and natural law."
3. John Austin and Legal Positivism
What is law? On Austin's nineteenth century view it is (quite simply) a command issued
by a sovereign. Law is the expression of a desire (I would like you to do this, i.e., "I
would like you to pay your taxes by April 15th" or "I would like you to stop at this red
light") backed up by a credible use of force or threat of punishment. In making sense of
his definition, Austin refused to bring in any value-laden or normative criteria to clarify
its key terms.
2
, So, for example, he did not define "sovereign," for instance, as
someone who had a "right to rule." Nor did he ever argue that the use
of force by a sovereign to back up his commands had to be
"legitimate." The "sovereign," according to Austin, was simply that
person or entity whom most people living within a given territory
happen to obey but who does not himself obey anyone else. The
"sovereign" is simply the fellow (or fellows) who is (who are) obeyed
rather than the one (ones) doing the obeying; the sovereign is the
"unobeying obeyed." The sovereign, for Austin, is not that person who
exercises a legitimate use of force within a given territory. He is
simply the person whose threats of punishment the people who live in
that territory find credible. His threats merely need to be credible or
convincing to the people who live in the territory. The matter of
legitimacy, of the legitimate exercise of force, is a moral issue, a
separate issue, and Austin was eager to establish a way of speaking
about "the law" that was value-neutral. It is not that Austin did not
believe that we could not evaluate a legal system in moral terms, or
that we could not pass moral judgment on this or that legal ruling
within a given territory. We could and, of course, we do make these
sorts of judgments all the time but he believed that it was important to
identify the law itself in non-moral terms, that legality was separable
from morality. The great advantage of Austin's definition lies its
simplicity, but in its simplicity it may simultaneously fail to capture
certain features of the law that we intuitively suspect are intimately
bound up with it. In its simplicity too Austin's definition is seemingly
open to several knock-down objections.
4. Austin's command theory of law and the
separability thesis.
3
Natural Law, Legal Positivism,
The Morality of Law
Dworkin's "Third Theory of Law"
Legal Realism and Critical Legal
Studies
1. Thomas Aquinas and Natural Law Theory
Natural law theory like legal positivism has appeared in a variety of forms and in many
guises. One of the most elaborate statements of natural law theory can be found in
Aquinas who distinguished four types of law: eternal, divine, natural, and man-made. So,
according to Aquinas, eternal law reflected God's grand design for the whole shebang.
Divine law was that set of principles revealed by Scripture, and natural law was eternal
law as it applied to human conduct. Man-made law was constructed by human beings to
fit and accommodate the requirements of natural law to the needs and contexts of
different and changing societies. Also, according to Aquinas, the fundamental precepts of
natural law were not only ascertainable (mere mortals like you and me could and did find
them out) but self-evident, i.e., they required no proof. They were, in Aquinas' terms, per
se nota, known through themselves. Like his predecessor, Aristotle, Aquinas
distinguished two kinds of reasoning: theoretical and practical. Human beings were
capable of both sorts of reasoning. Theoretical reason was the capacity to apprehend
certain truths, such as the truths of mathematics. Practical reason was the capacity to
apprehend those principles guiding human conduct which tell us how we ought to live,
what things we should value, what goods we should seek, and how we ought to order our
lives. Like Aristotle, Aquinas believed that there were principles of practical reason and
that they were no less fundamental than the principles of theoretical or speculative
reason. Thus, for Aquinas, the principle of non-contradiction was as self-evident as the
first and most fundamental principle of natural law ("Good is to be done and evil is to be
avoided"). Like the principle of non-contradiction, the precepts of natural law were,
according to Aquinas, general and unchanging. They were the same for everyone. But
man-made or human law has to take the particularities of each human situation into
account. Man-made law must adjust natural law to specific and often changing
circumstances. Man made law is accommodating and changeable. Furthermore, there are
1
,areas of human conduct where natural law does not spell out the particular ways that
human beings ought to behave themselves. Natural law does not dictate, for example, that
we drive on the right hand side of the road. Human communities require a host of
regulations simply in order to function (traffic and tax laws). But even these regulations
are guided, albeit somewhat distantly, by natural law, i.e., by the requirement of natural
law that health and safety be protected. Man-made law may, of course, conflict with
natural law or fail to capture some fundamental feature. Aquinas argued that human laws
that contravene natural law are "acts of violence," and "a perversion of law." Such laws
he argued do not bind the conscience. They have no legal validity and cease, in this
regard, to be law.
2. Martin Luther King's "Letter from a Birmingham
Jail"
King: "You express a great deal of anxiety over our willingness to break laws. This is
certainly a legitimate concern. Since we so diligently urge people to obey the Supreme
Court's decision of 1954 outlawing segregation in the public schools, it is rather strange
and paradoxical to find us consciously breaking laws. One may well ask 'How can you
advocate breaking some laws and obeying others?' The answer is found in the fact that
there are two types of laws: there are just and there are unjust laws. I would agree with
Saint Augustine that 'An unjust law is no law at all.' . . . A just law is a man-made code
that squares with the moral law or the law of God. An unjust law is a code that is out of
harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust
law is a human law that is not rooted in eternal and natural law."
3. John Austin and Legal Positivism
What is law? On Austin's nineteenth century view it is (quite simply) a command issued
by a sovereign. Law is the expression of a desire (I would like you to do this, i.e., "I
would like you to pay your taxes by April 15th" or "I would like you to stop at this red
light") backed up by a credible use of force or threat of punishment. In making sense of
his definition, Austin refused to bring in any value-laden or normative criteria to clarify
its key terms.
2
, So, for example, he did not define "sovereign," for instance, as
someone who had a "right to rule." Nor did he ever argue that the use
of force by a sovereign to back up his commands had to be
"legitimate." The "sovereign," according to Austin, was simply that
person or entity whom most people living within a given territory
happen to obey but who does not himself obey anyone else. The
"sovereign" is simply the fellow (or fellows) who is (who are) obeyed
rather than the one (ones) doing the obeying; the sovereign is the
"unobeying obeyed." The sovereign, for Austin, is not that person who
exercises a legitimate use of force within a given territory. He is
simply the person whose threats of punishment the people who live in
that territory find credible. His threats merely need to be credible or
convincing to the people who live in the territory. The matter of
legitimacy, of the legitimate exercise of force, is a moral issue, a
separate issue, and Austin was eager to establish a way of speaking
about "the law" that was value-neutral. It is not that Austin did not
believe that we could not evaluate a legal system in moral terms, or
that we could not pass moral judgment on this or that legal ruling
within a given territory. We could and, of course, we do make these
sorts of judgments all the time but he believed that it was important to
identify the law itself in non-moral terms, that legality was separable
from morality. The great advantage of Austin's definition lies its
simplicity, but in its simplicity it may simultaneously fail to capture
certain features of the law that we intuitively suspect are intimately
bound up with it. In its simplicity too Austin's definition is seemingly
open to several knock-down objections.
4. Austin's command theory of law and the
separability thesis.
3
