We went through an incredibly rapid tour of the natural law tradition. Why? To show what the legal positivists were arguing against.
Specifically, the natural law tradition holds that there is a necessary connection between the way the law is and the way it ought to be. Exactly what is that connection? And why is there such a connection? Different natural law theories give different answers to those questions.
Few people hold that what the law is exactly corresponds with everything people ought to do. But most of them hold that what counts as a genuine law can come apart from what people call a law on the grounds that the putative laws fail a moral test.
The qualification in the last sentence is both important and tricky. The legal positivists maintain that what people call laws can be different from what laws really are. If you call my cat a law, you will be wrong by anyone’s lights. What’s distinctive about the natural law theories is that they hold that genuine laws are partly identified by their moral character. That’s what the legal positivists deny.
It can be difficult to see the dispute between the natural law tradition and the legal positivists as a live one, rather than a piece of intellectual history. But I think that there are at least four reasons why natural law persists.
We will primarily discuss the third and fourth reasons in subsequent classes. But it’s worth bearing the first two in mind.