It’s been a little while since I announced the relaunch of my series on the law and legal studies, and I think the best way to dive into any serious study of the law is to touch on jurisprudence.
Jurisprudence can roughly be understood as the philosophy of law. Rather than focusing on issues of statutory construction and interpreting the text of law, jurisprudence seeks to answer more general, foundational concerns. One of the persistent and overarching questions in jurisprudence is: what is law? This is a question that has as many answers as there have been scholars seeking to answer it, but the question should give you some idea of the focus of jurisprudence. An understanding of jurisprudence and the theories that have arisen within it provides any person studying law a greater clarity on questions of justice, ethics, and how legal frameworks should function.
There’s simply too much information to tackle in a single post on this very broad topic, so I’m going to be providing primers on various topics within jurisprudence. As natural law theory is my favorite jurisprudential theory, I’m going to start with that.
What is Natural Law Theory?
Natural law theory is a legal theory that focuses on universal rules of conduct, derived from some rule set that exists outside of man-made (or positive) law. These theories are generally normative in nature, though they contain descriptive elements. In other words, they’re concerned with what the law ought to be, and they necessarily combine moral evaluations with any evaluations of law. Unlike utilitarianism or legal realism, natural law theory does not discount the moral content of law, nor does it think this is even a good idea. For natural law theorists, law is an expression of a larger ethical framework and does not exist independently from it.
Early Natural Law Theorists
Cicero (106 BC – 43 BC)
While it would certainly be prudent to start with Aristotle or Socrates, classical natural law theory was condensed neatly by the Roman orator Cicero. He offered what was essentially a restatement and synthesis of Stoic theories of natural law, based heavily on classical Greek philosophers. For the Stoics, there was less interest in a comprehensive system of law than there was for a comprehensive ethical system. As stated above, for natural law theorists, law is just one part of a larger whole.
According to Cicero and the Stoics, there is universal law that binds humanity a priori, or that is true prior to being proven true. The focus of these theorists was on how one could discover this universal law. For this, the focus was on the use of practical reason. Humans had the unique feature of reason and logic, and if one applied these to the natural world around oneself, one could derive rules of conduct that applied to all people. There was also a focus on living the good life; a life of virtue. For the Stoics, this was the pursuit of knowledge and the adherence to reason, alongside other more material concerns like good health and sustainable living. Another aspect of the good life was living for the good of one’s community. For the Stoics and Cicero, an individual pursuing good according to natural law was not seeking it only for himself; he was also seeking the good of his community.
The strong emphasis on nature and deriving rules from nature also came with moral implications. The justice of a law depended heavily on whether it conformed to the natural rules one could discover with reason, and they had to comport with the virtues of the theory employed to discover them. Laws that were not in accordance with this reasoned view of human nature were accordingly unjust.
It is important to note, however, that a law being unjust did not mean that it should not be obeyed. To the contrary, in Plato’s Apology, Socrates rejects the notion that he should escape prison and avoid the sentence of death imposed upon him by the Athenian government. For this line of theory, an unjust law was still a law laid down by an authority, and whatever the injustice in this particular case, it should be followed to avoid eroding trust if this was an otherwise just authority.
Thomas Aquinas (1224 – 1274)
Thomas Aquinas was a Catholic scholar who synthesized prior natural law theories with Christianity. While the Stoics were deists, their natural law theory arose from a much different place of understanding than any theory based in the Christian faith. This set a wall between their view of practical reason and their set of virtues and those of Christianity.
To do this, Aquinas devised four groups of laws. First, there is the Eternal Law. This is the will of God in Aquinas’ framework, and it is the law that rules the operation of the universe. Second, there is Divine Law. Divine Law consists of the explicit commandments and proscriptions handed down by God to mankind, such as in the Ten Commandments and through the teachings of Christ. Third, there is Natural Law. Natural law in Aquinas’ view is remarkably similar to that of earlier philosophers, and it is here that he drew on them to bring them into the fold of the new Christian paradigm. Through the use of practical reason, a person could observe the natural world and derive rules of conduct inherent in nature. Lastly, there is Human Law. Human law is simply the positive law that mankind creates through its enactment of edicts and promulgates (spreads word of) in formal structures.
“Good should be done and sought and evil is to be avoided” is the best summation of Aquinas’ view on ethics, and one that he derived himself. However, on the topic of law, good refers specifically to just law. Positive law can either be just or unjust, and the metric for evaluating the justice of a law is whether or not the law comports with both the Divine Law and the Natural Law. Any legal framework should seek to be just, and thus should seek to comport with both of these legal components.
It’s important to note, though, that this does not mean that human positive law must only be natural and divine law in order to be just. Where there are no discernable specific rules of conduct, human positive law can take whatever form it wants to, so long as it doesn’t violate either the natural or divine law. For example, a law prohibiting murder is obviously just, as it comports with both the divine prohibition on murder and avoiding the evil of destroying life. A law declaring a certain speed limit on a road, on the other hand, does not comport with any specific divine rule, and the only evil that speed regulations prevent is avoiding the harm that reckless driving causes. Neither natural or divine law say what that speed should necessarily be, so it falls on human beings using practical reason to come to a reasonable speed limit.
Aquinas recognized that unjust laws were not laws in the true sense of the word. To quote Aquinas, “[i]f, however, in some point [human positive law] conflicts with the law of nature it will no longer be law but rather a perversion of law.” Whereas just laws created a moral obligation to obey them, unjust laws imposed no such obligation. This did not, however, mean that one should disobey unjust laws in every case. To the contrary, Aquinas took the same view that the Stoics before him did: unjust laws should still be obeyed if disobedience caused some greater harm to come to pass. Since evil was to be avoided, resistance to unjust laws, however morally justified, should still be avoided if the act of resisting caused some greater calamity.
That’s it for the first part of this article on natural theory jurisprudence. In the next article, I’ll be discussing later natural law theorists, particularly John Locke, before moving onto John Finnis, the man leading the modern natural law movement.
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