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Jurisprudence Essay - Natural Law and Legal Positivism
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Jurisprudence Essay on Natural Law and Legal Positivism
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Shania Phillips Legal Philosophy formative 1Module: LAW2311 Word Count: 1515
Of course, laws can be unjust. But this obvious fact is neither adequately explained nor
understood by natural lawyers.
Discuss
It is an unconvincing argument that natural lawyers neither adequately explain nor understand the
fact that laws can be unjust. This misconception only considers the classical view of natural law,
reflected by the legal maxim ‘lex injusta not est lex’. In comparison, contemporary natural lawyers,
like Finnis, effectively demonstrate this thesis to be contradictory and not accurately represent the
natural law position. Subsequently this essay will defend and prove the above statement to be false
through the lens of modern natural law.
Firstly, this essay will examine the different understandings of the concept of unjust law proposed by
theorists representing the classic and modern interpretations of natural law. Continuing the debate
between these two groups, this essay will then investigate the effect of injustice on legal validity,
comparing Radbruch’s position and subsequent formula with Finnis’ categorisation of laws into
primary and secondary meanings. The subsequent impact on legal and moral obligation will then be
examined, highlighting the issue of grossly unjust laws. It will then be concluded that natural lawyers
successfully explain how unjust laws possess legal validity, as defective laws, and consequently entail
a legal obligation to obey the law. However, depending on the degree of injustice, moral obligation
varies.
What is an unjust law?
The Classic Natural Law Position:
, Shania Phillips Legal Philosophy formative 1
Module: LAW2311 Word Count: 1515
Classical natural law theorists consider unjust laws are not law because of their moral inequity and
are therefore neither legally valid nor obligatory 1. This is a plausible view because without separating
law and morals in the assessment of validity, unjust laws are determined to be ‘morally wrong’,
which is invalidity in the “only form of validity they recognise” 2. However, this means that classically
positioned natural lawyers are confronted with the predicament generated by the “sheer facticity of
unjust laws and illegitimate legal systems”3. It is not clear how classic natural law theorists can
overcome this objection.
The Modern Natural Law Position
In comparison, Finnis successfully explains that laws can be and much too often are bad or unjust 4.
Fundamental to his argument is a distinction between two categorisations of law, influenced by
Aristotle’s discussion of three forms of friendship5. The first category is the primary or focal sense of
the law, otherwise understood to be a ‘just law’, which “has a proper relationship to practical
reasonableness”6. Subsequently, this is the only category which necessitates a connection between
morality and the law. Whereas the secondary meaning of the law is based on how removed a
specific instance of law is to this primary meaning 7.
Are unjust laws legally valid?
1
J.Finnis, Natural Law and Natural Rights (2nd edn, Clarendon Law Series, 1881) 364.
2
ibid 26.
3
D.Dyzenhaus, ‘Dworkin and Unjust Law’ in Wil Waluchow and Stefan Sciaraffa (eds), The Legacy of Ronald
Dworkin (Oxford University Press 2016).
4
J.Finnis, Natural Law and Natural Rights (2nd edn, Clarendon Law Series, 1881) 365.
5
ibid 370.
6
T.S.Becker, ‘John Finnis on the obligation to follow unjust law; (2011) ETD Collection for Fordham University 74.
7
ibid 75.
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