Law and Justice: Natural Law

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 Thomas Acquinas
• Ancient Natural Law Theory of Thomas Acquinas:
Aquinas married Aristotle’s natural law theory with the
Christian tradition to develop the most refined theory
of natural law before the twentieth century, and his
work is a fundamental reference point for all natural
law theorists. Acquinas’s natural law theory shows
man, because of his reason, to be a participant in
divine wisdom, whose purpose is to live in a flourishing
Christian community. Law is a necessary institution in
such a community, and just laws will reflect directly
(specificatio) or indirectly (determinatio) the universal
morality of natural law.

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 Lon Fuller
• Modern natural law theory II: Lon Fuller: Unlike Finnis, Fuller did
not aim to produce a morality of law on the basis of a general moral
theory in keeping with the ancient natural law traditions; rather, he
sought to explain the moral content in the idea of ‘the rule of law’,
i.e. governance by rules and judicial institutions as opposed to
other sorts of political decision-making or ordering, such as military
command or bureaucratic administration. The morality he describes
is morality as ‘legality’, meaning morally sound aspects of governing
by rules. For this reason, Fuller is often credited with devising a
‘procedural’ natural law theory, in that he does not focus on the
substantive content of legal rules and assess them as to whether
they are moral or not, but rather concerns himself with the
requirements of just law-making and administration.

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 Hart-Fuller Debate: The Nazi Grudge
Informer Case
• Legal Positivism: HLA Hart: Hart’s defences against natural law theory: The Nazi Grudge Informer Case: Hart-Fuller
Debate: The grudge informer case arises in well-known debate between Professor Hart and Professor Lon Fuller of the
Harvard Law School in 1958. The debate is a classic of modern jurisprudence, Hart taking the positivist line and Fuller the
anti-positivist natural law line. The facts were that in 1944 the defendant denounced her husband to the Gestapo for having
said something insulting about Hitler when the husband was home on leave from the German army. She had a ‘grudge’
against him – something such cases were not uncommon at the time. The husband was arrested and sentenced to death in
accordance with a Nazi statute that made it illegal to make statements detrimental to the German government. In 1949, the
wife was charged, in a West German Court, with having committed the offence of unlawfully depriving a person of his
freedom which was a crime under the German Criminal Code of 1871, which had remained in force continuously since its
enactment. (The Nazi statute that had made it illegal to make disparaging statements about the German government had
been repealed by 1949.) The wife pleaded in defence that what she had done was lawful when she did it in 1944. That is,
she had not unlawfully deprived her husband of freedom, because it was made lawful by the Nazi statutes in force then.
When the case came to the appeal court, although the woman was allowed her appeal on other grounds, the court
accepted the argument that the Nazi statute would not have been valid if it were so contrary to the sound conscience and
sense of justice of all decent human beings. If so, it would have followed that this statute did not make it lawful to deprive
people of their freedom when they denounced Hitler, so that, at the time the defendant informed the Gestapo about her
husband’s remarks, she could have committed an offence under the German Criminal Code of 1871. According to positivism,
the grudge informer acted legally but immorally. According to natural law, her immoral action did not afford her a legal
defence. Hart says the positivist way of understanding the position is better because it rightly allows the grudge informer a
defence. This argument suggests that Hart thinks positivism must be justified by reference to its producing in practice
morally better results than natural law. If so, that implies that there is a moral basis to his theory of positivism.

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