Jurisprudence
TP1 Notes
, Unit 2 –
Law as Justice
What is natural law?
Two views on the nature of law:
1. As a set of enacted rules and decisions posited by a ruler (positivist)
2. As a set of rights (already in existence) to be enacted by the law (natural law)
Often distinguished from legal positivism
• John Austin – ‘The existence of law is one thing; its merit or demerit is another’
• HLA Hart – ‘It is in no sense a necessary truth that laws satisfy or reproduce the
demands of morality, though in fact they have often done so’
• However, natural lawyers agree with this.
• Austin, Hart and more recent positivist thinkers (mis)characterise natural law as the view
that a human law lose its legal characteristic when contravening a moral rule:
• Lex iniusta non est lex (an unjust law is not a law)
• However, you will struggle to find a natural lawyer agree that an immoral human (or
positive) law loses its human (or positive) legal characteristic.
*Note, Lon Fuller maybe the exception here, but his version of natural law is more aligned to the
rule of law, than the natural law theories stemming from Aristotle.
• This leads natural lawyers to conclude that the positivism v natural law debate is too
simplistic (see the works of John Finnis and Sean Coyle).
• It is largely a fiction of Hart and Fuller, that is built upon a misunderstanding by Austin
What is natural law? (seven commonalities)
1. ‘Natural’ law, named so, as we get to a concept of law that aligns with nature – to
what is natural for humans
2. Natural law is said to exist independently of human will
3. There exists a higher (non-human) norm, based upon morality, against which human
law can be measured
4. An ‘unjust law is not a law’ is not central tenet of most natural law theories – though
it is one put forward by positivist theorists (and so exists in textbooks)
5. Natural law investigates the moral principles that ought to govern law-making, which
can be deduced through our human capacity to reason
6. In this sense, natural law is not revealed law’s product; it is revealed law’s
precondition.
7. Political authority requires moral justification in order to be acceptable to all free,
rational human persons.
Jeremy Bentham drew a distinction between censorial and expository jurisprudence
On the other hand, …
Brian Simpson argues that the law and the concept of justice are inextricably linked.
, ‘In the common law system, no very clear distinction exists between saying that a peculiar
solution to a problem is in accordance with the law, and saying that it is rational, or fair, or
just solution’
What is justice?
• Is justice something a legitimate ruler imposes? (positivist’s claim)
• Does the concept of justice change in different societies? – the relativist position
• Is justice the same for everyone? (natural law’s claim)
• Could be based upon the natural inclination of human beings (and animals) or on
a concept of God (if believers) - the universal position
• Note – it is impossible to agree with both (a contradiction)
Immanuel Kant – act on the maxim that you will becomes a universal law of nature
John Rawls – ‘veil of ignorance’
Code of Hammurabi,
(King of Babylon)1754 BC
"Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring
about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that
the strong should not harm the weak … enlighten the land, to further the well-being of
mankind."
Early Roman thought
Cicero (106-43BC) – immutable, stands as higher law, discoverable by reason
1. Obliges us to contribute to the general good of the larger society.
2. The purpose of positive laws is to provide for "the safety of citizens, the preservation
of states, and the tranquillity and happiness of human life."
3. In this view, "wicked and unjust statutes" are ‘anything but 'laws,’
• Influenced by the concepts of ius naturale and ius gentium – stemmed from Plato,
Aristotle and the Stoics
St Augustine – ‘lex inuista non est lex’
Plato v Aristotle
School of Athens
Raphael, School of Athens, fresco, 1509-1511
Watch this commentary on the painting (to 8min 30sec):
https://www.khanacademy.org/humanities/ap-art-history/early-europe-and-colonial-
americas/renaissance-art-europe-ap/v/raphael-school-of-athens
Note the distinction between the thinkers who focus on the heavens (Plato) to thinkers who
focus on the earth (Aristotle)
TP1 Notes
, Unit 2 –
Law as Justice
What is natural law?
Two views on the nature of law:
1. As a set of enacted rules and decisions posited by a ruler (positivist)
2. As a set of rights (already in existence) to be enacted by the law (natural law)
Often distinguished from legal positivism
• John Austin – ‘The existence of law is one thing; its merit or demerit is another’
• HLA Hart – ‘It is in no sense a necessary truth that laws satisfy or reproduce the
demands of morality, though in fact they have often done so’
• However, natural lawyers agree with this.
• Austin, Hart and more recent positivist thinkers (mis)characterise natural law as the view
that a human law lose its legal characteristic when contravening a moral rule:
• Lex iniusta non est lex (an unjust law is not a law)
• However, you will struggle to find a natural lawyer agree that an immoral human (or
positive) law loses its human (or positive) legal characteristic.
*Note, Lon Fuller maybe the exception here, but his version of natural law is more aligned to the
rule of law, than the natural law theories stemming from Aristotle.
• This leads natural lawyers to conclude that the positivism v natural law debate is too
simplistic (see the works of John Finnis and Sean Coyle).
• It is largely a fiction of Hart and Fuller, that is built upon a misunderstanding by Austin
What is natural law? (seven commonalities)
1. ‘Natural’ law, named so, as we get to a concept of law that aligns with nature – to
what is natural for humans
2. Natural law is said to exist independently of human will
3. There exists a higher (non-human) norm, based upon morality, against which human
law can be measured
4. An ‘unjust law is not a law’ is not central tenet of most natural law theories – though
it is one put forward by positivist theorists (and so exists in textbooks)
5. Natural law investigates the moral principles that ought to govern law-making, which
can be deduced through our human capacity to reason
6. In this sense, natural law is not revealed law’s product; it is revealed law’s
precondition.
7. Political authority requires moral justification in order to be acceptable to all free,
rational human persons.
Jeremy Bentham drew a distinction between censorial and expository jurisprudence
On the other hand, …
Brian Simpson argues that the law and the concept of justice are inextricably linked.
, ‘In the common law system, no very clear distinction exists between saying that a peculiar
solution to a problem is in accordance with the law, and saying that it is rational, or fair, or
just solution’
What is justice?
• Is justice something a legitimate ruler imposes? (positivist’s claim)
• Does the concept of justice change in different societies? – the relativist position
• Is justice the same for everyone? (natural law’s claim)
• Could be based upon the natural inclination of human beings (and animals) or on
a concept of God (if believers) - the universal position
• Note – it is impossible to agree with both (a contradiction)
Immanuel Kant – act on the maxim that you will becomes a universal law of nature
John Rawls – ‘veil of ignorance’
Code of Hammurabi,
(King of Babylon)1754 BC
"Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring
about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that
the strong should not harm the weak … enlighten the land, to further the well-being of
mankind."
Early Roman thought
Cicero (106-43BC) – immutable, stands as higher law, discoverable by reason
1. Obliges us to contribute to the general good of the larger society.
2. The purpose of positive laws is to provide for "the safety of citizens, the preservation
of states, and the tranquillity and happiness of human life."
3. In this view, "wicked and unjust statutes" are ‘anything but 'laws,’
• Influenced by the concepts of ius naturale and ius gentium – stemmed from Plato,
Aristotle and the Stoics
St Augustine – ‘lex inuista non est lex’
Plato v Aristotle
School of Athens
Raphael, School of Athens, fresco, 1509-1511
Watch this commentary on the painting (to 8min 30sec):
https://www.khanacademy.org/humanities/ap-art-history/early-europe-and-colonial-
americas/renaissance-art-europe-ap/v/raphael-school-of-athens
Note the distinction between the thinkers who focus on the heavens (Plato) to thinkers who
focus on the earth (Aristotle)
