LEGAL PHILOSOPHY – CHAPTER 2

NATURAL LAW: THE CLASSIC, SCHOLASTIC, ENLIGHTENMENT & POSTMODERN

PHILOSOPHERS

LEGAL THEORY
 A topology of discourses about the origin, purpose, and character of the law.
 It evaluates and prescribes how a body of conduct becomes norm, rules or obtains
binding effect.
THEORY OF A CASE
 Refers to the principles, claims, or grounds under which a litigant proceeds
NATURAL LAW
 an example of “normative jurisprudence” which evaluates the purposes or norms
behind the law
 Laws are rules for man to realize his basic natural goods and when shared, become
society’s common good.
JOHN FINNIS
- Argued that there cannot be a value-free, unprincipled discussion of the law. Legal
theorist will first place require a principle, a criterion, or a value to adopt as basis
his assessment. Laws have purpose and a direction.
- Developed the CENTRAL CASE APPROACH in evaluating law
CENTRAL CASE APPROACH
- The focus and center of law are those ideal cases where natural rights to basic
human goods are served
SEVEN BASIC GOODS NATURAL TO MAN
1. Life
2. Knowledge
3. Play
4. Aesthetic experience
5. Sociability (friendship)
6. Practical reasonableness
7. Spirituality/religion (transcendence)

- These needs or deep human desires are recognized by anyone with sufficient reason
and experience, and thus cannot be eliminated from humanity, which is why they
are “natural”
- Generate into “natural rights” and correlative “natural duties”
- Natural rights are self-evident and non-derogable. These are ascertainable and
require no further proof
- Besides the basic goods are other goods that are either the combination, product or
sophistication of the basic goods.
 - Laws must at least have primary rules to provide these goods, ensure the survival
of the society and give the people “practical reasonableness
THE POSITIVIST THEORY
- Social Living itself has rules – LAW
- POSITIVIST SCHOOL: We follow the law because it is the law, period.
o Positivists are positive on what the law “posits” by the authority given to
the State or by socially accepted rules
- COMMAND THEORY – positivism highlights obedience to the content and
expression of the law “dura lex sed lex” (the law is hard, but that is the law) and
“quod principi placuit legis habet vigorem” (whatever pleases the prince has the
force of law)
- CONVENTIONALISM – Law is purely a product of human will, agreement,
proposition, treaties, or convention, not of some natural law or divine will.
o There is no underlying substance, principle, or content that the law must
conform with. It need only procedurally correct to be valid.

Natural Law Theory Positivism

Normative jurisprudence Analytic Jurisprudence
“ what the law ought to be” (lex frenda) Studies and recognizes law simply for
“what it is” (lex lata). No ifs or buts or
referents to judge the law other than the
law itself

- OVERLAP THESIS or is-ought fallacy – all other approachhes to law (natural

law, sociological, pragmatic) are wrong for confusing “what ought” with “what is”
o Until nullified or amended, one cannot dismiss the law based on what it
should be according to some non-legal standards
o When lawyers make a case, they can only cite the law, and citing the Bible
or non-legal authorities will not hold water
- DAVID HUME
o SEPARABILITY THESIS – what the law “is” is different from idealized
law or what the law “should be”
o Argued that we cannot demonstrate on what the law should be, but on the
facts of what the law is – SOCIAL FACT THESIS
o We argue on legal, not moral, issues.
HUME’S OBJECTION PROPONENTS OF NATURAL
LAW’S ANSWER
Natural, rational, or moral laws cannot Human needs can be mapped clinically
be scientifically postulated and laws can be changed follow suit

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 - JEREMY BENTHAM
o Father or Modern Utilitarianism
o He and his student, John Austin, popularized positivism
o Called natural law “non-sense upon stilts”, and distinguished the
“expositors” of the law (those who explain the law for what it really is) from
the “censors” (those who criticize the law in relation to non-legal notions)
- JOHN AUSTIN
o Professor British Jurisprudence
o Argued that the law is the expression of a desire supported by the credible
use of force or threat of punishment. It is a system of rules, orders, or
commands enforced by power.
- HANS KELSEN
o Wanted to separate “legal science” from “legal politics”, which
compromises law based on what is politically correct
- JUSTICE WENDELL HOLMES JR
o Famous soft positivist
o “The law is a witness and external deposit of our moral life. Its history is
the history of the moral development of our race”
o For a “right study and mastery of law,” the distinction between laws and
morals “is of great importance”
o Laws must be given effect even if it conflicts with our conscience or ideals,
otherwise, these would suffer endless “interference as many consciences
would draw it.”
LEGALISM
- THOMAS HOBBES