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Lecture 7

SOSC 2350 Lecture Notes - Lecture 7: Positive Law, Divine Law, Physis


Department
Social Science
Course Code
SOSC 2350
Professor
Amelie Barras
Lecture
7

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Natural Law and Legal Positivism
November 1, 2017
Natural Law - Antigone
Kreon: And yet you dared to overstep the law?
Antigone: It was not Zeus who made that proclamation to me; nor was it Justice,
who resides in the same house with the gods below the earth, who put in place for
men such laws as yours. Nor did I think your proclamation so strong that you, a
mortal, could overrule the laws of the gods, that are unwritten and unfailing
Natural Law
Natural law claims to be universal, immutable and objective.
It transcends any political or historical context.
The same for all human beings and at all times
An unchanging rule or pattern which is there for human beings to discover.
Through reason man can discover the content of natural law
philosophers consider natural law superior over positive law
Western philosophers put forth the idea of natural law
Rely on an absolute source
Cicero
True law is right reason on agreement with Nature; it is of universal application,
unchanging and everlasting… it is a sin to try to alter this law, nor is it allowable to
repeal any part of it, and it is impossible to abolish it entirely… And there will not be
different laws in Rome and Athens… but one eternal and unchangeable law will be
valid for all nations and for all times, and there will be one master and one ruler,
that is God, over us all, for us all, for he is the author of this law, its promulgator and
its enforcing judge.
idea of inalienable rights
means that no state what so ever can interfere with our natural rights
a result of being more human not being a part of a particular community
Are inherent in the human being
"An unjust law is no law at all" -St. Augustine
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Natural Law and Morality
Natural law proposes that the validity of law depends not just on its form but on its
content.
Connection between law and morality
Natural law tells us what ought to be (not the same as physical laws that tell us how
things are (e.g. gravity))
Natural law is said to be superior to human law and therefore to have the power to
determine whether positive law is binding.
No rule can count as a law unless what it requires is at least morally permissible
Objectively derived from the nature of human beings
In terms of the authority of legal standards they're derived from a large part of
moral standards
argument: what natural law legal theory have in common/intersect-- is that most
laws based their authority not on societal agreement but on logical obvious
agreement that connects the law to; norms become authoritative even when the law
doesn't require morality this is the case (behind all laws there is a relationship to
morality)(a non conventional relationship)- connection between law and moral
framework
God's law trumps man made law ; man- made (positive law) doesn't conform to
eternal law
Classical Natural Law
(e who bids the law rule may be deemed to bid God and reason Aristotle
- Physis (nature) [natural law] - vs. - custom/rules (nomos) [positive law]
-what the law commanded would be expected place to place but what is in nature is
obeyed regardless
Gods law is: imprinted upon us . . . The light of natural reason, whereby we discern
what is good and what is evil, is nothing else than an imprint on us of the divine
light (St Thomas Aquinas)
-all of our understanding of good and bad are imprinted upon us by God in nature
Why morally one obeys the law?
-only if the content of the law itself is moral than you are obliged to obey the law,
only if this is so.
How should a morally serious and reflective person consider the law?
When is such a person morally obligated to obey the law?
One is obligated to obey the law only if the content of the law is itself moral.
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Natural Law and St. Thomas Aquinas
Law is: man ordinance of reason directed towards the common good and
promulgated by the one who has the care of the community
Gods law is: imprinted upon us . . . The light of natural reason, whereby we discern
what is good and what is evil, is nothing else than an imprint on us of the divine
light
Asserted that a norm that does not conform to the natural law cannot be legally
valid: an unjust law is really no law at all.
Aquinas Typology
Eternal law - comprising all scientific laws (ex. laws around physics, biology,
psychological) laws of the universe order; identical to the mind of God because God
created the universe; laws that govern the universe naturally
Divine law - Refers to divine commands; comes from revelation (scripture/biblical
law); rules in scripture we need to satisfy these rules to meet human eternal
salvation
Natural law - Comprised of precepts that govern the behaviour of human beings
that have reason and free will need to follow standards. Law with a moral content.
(natural law is more perfect than human law because it is based on the eternal
law that is meant to govern human behaviour; the moral content makes it more
perfect);
Rules of Natural law: 1. do good things 2. Avoid evil
Human law - Content conforms to the content of natural law
Aquinas
Moral duty consisted in acting in accord with [the essential purposes implanted by
God in nature], and we were supposed to discover the essential purposes of
creatures such as ourselves. The virtuous human life consisted of living consistently
with our natural (perhaps God-designed) function, and systems of social coercion
were properly called legal only if consistent with such functions.
* Murphy & Coleman
Critiques of Natural Law
Natural law not as universal as it claims to be
-Judeo-Christian influences
Malleability of natural law.
That we are all going to have the same conclusion of what is "right" ---biggest issue
No way to know what is right and what is wrong
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