Natural law Notes for January 21

Main points

We went through an incredibly rapid tour of the natural law tradition. Why? To show what the legal positivists were arguing against.

What is natural law?

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.

What’s alive in the natural law tradition?

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.

1. The religious traditions that support it are still strong.
2. It fits very well with our culture’s belief in human rights.
3. We regard legal obligation as a kind of moral obligation. So we think that laws have to meet the conditions of imposing moral obligations and that appears to be a necessary connection between law and morality (see Fuller’s point at the end of the handout).
4. It supplies something that legal positivism is said to lack, namely, a “theory of adjudication,” that is, a way of guiding judges to make legal decisions in cases where the other sources of law, such as statutes, tradition, and past court cases, do not settle the question at hand.

We will primarily discuss the third and fourth reasons in subsequent classes. But it’s worth bearing the first two in mind.