PHILOSOPHY OF LAW MIDTERM NOTES has instilled it into human minds so as to be known by them
naturally; “good is to be done and pursued, and evil
St. Thomas Aquinas and Natural Law
 See Summa Theologica
 Aquinas acknowledges that there are four types of laws:
Eternal, Divine, Natural and Human Law
 Law in general sense is “a certain rule and measure of acts
wherby a man is induced to act or is retrained from acting”
 A good law for Aquinas is “an ordinance of reason for the
common good, made by him who has care of the community,
and promulgated”
The way to understand NATURAL LAW THEORY as you
have learned in your readings is to dissect and analyze the thinking
of St. Thomas Aquinas because its been the readings of Natural
Law theorists. All others.. All other natural Law Theorists are but
some sort of modifications, improvements of St. Thomas
Aquinas’. But of course, it is not to say that St. Thomas Aquinas is
the original Natural Law Theorist. In fact, in his works he
mentioned St. Agustine and other saints and thinkers before him.
But what made his work special is because he was specific in his
analysis of the Law and to the extent that he even by way of
explaining what Natural Law is he in fact discussed all other types
of Laws in hes work, remember? So he mentioned about Eternal
Law, Divine Law, Natural Law and Human Law by way of trying
to explain the relationship between these Laws.
Okay, so in his SUMMA THEOLOGICA, he started with
of course this observation of what Law is and he said. Basically
and in general terms. Law is a certain rule and measure of acts
where by man is induced to act or is restrained from acting. And
then he said, you know his work, he started with an analysis of the
nature of law and then he was trying to suggest that for Law to be
considered Law it must comply with what he thought as the
components or elements of Law and this is where he mentioned
about “Law as an Ordinance” after he made an analysis of the
nature of Law he then concluded therefore that Law is an
ordinance of reasons for the common good made by him who has
care of the community and promulgated.
Types of laws according to Aquinas
 Eternal Law - the whole community of the universe is
governed by God, the “divine reason” who “is not subject to
time, but is eternal; it is the source of all laws
 Divine Law - the will of God as “revelation” (God’s word
revealed);
 Natural Law - “It is promulgated by the very fact that God
avoided”; it is “the rational creature’s participation in the
eternal law”
 Human Law - “the more particular determinations of certain
matters devised by human reason”; it is meant to “implement
natural law.
But before we go to this, Lets take a quick look at his types
of Laws, we have: Eternal, Divine, Natural and Human Law. As
you can clearly recall, Aquinas started with the idea of everything
in this community is governed by the divine reason, which is
GOD And because God is not human. God therefore is infinite and
divine reason therefore is timeless. So when we speak of Eternal
Law, it is timeless. Like you remember our discussion about same-
sex marriage case, while truly, probably marriage may develop
because society also develop, the way we think also develops. But
actually, the work of St. Thomas Aquinas, he already mentioned of
some moral standards as being ABSOLUTE UNCHANGING.
Although gi-distinguished ni Aquinas that there are things in this
world that do change but there are things that are absolute and he
said MORAL STANDARDS are absolute unchanging and this is
where he said, because our moral standards have to spring from
Eternal Law as you have learned from his work, in fact all our
Laws must be a reflection of Eternal Law. By the ways, so thats a
Eternal Law for St. Thomas Aquinas.
Then you have Divine Law. Well, Eternal Law (idk why he
said eternal law) is specific its just a singular idea of a Law that is
based on reason as mandated by God. Specific instructions of
God, in relation to specific human endeavor or activity, they have
been translated in some religious books probably lour Old and
New Testaments. So, those are the specific instructions of God in
relation to specific human conduct or endeavor thats why when
we say Divine Law is actually the will of God as revealed. So, if it
is for example for good reason that we should remain loyal to our
spouse like the Old testaments says “thou shall not covet thy
neighbour’s wife” di ba? That’s one specific revelation of God’s
wish.
Then Natural Law on the other hand is promulgated by the
very fact that God has instilled into human minds so as to be
known by them naturally and this idea of REASON which is
basically being able to tell what is right and what is wrong is
based on what God has instilled in our mind this ability to doo
good and avoid evil. It is through Natural Law that the essence of
Eternal Law becomes manifest.
Human Law, more particular determinations of certain
matters devise by human reason and it is meant to implement
Natural Law. This is because according to St. Thomas Aquinas in
his definition of Law that while it should be based on reason and
that it is what is instilled on us by God that however should be
translated into Human Law so that of course there is faces for
enforcement and the demand for compliance of that Law. So we
have Human Law precisely to implement Natural Law.

For Aquinas, Law is...
(1) an rodinance
(2) Of reason
(3) For the common good
(4) Promulgated
(5) By one who has care of the community
If you look at the definition of St. Thomas Aquinas again we
can actually divide this into several parts. We can begin with for
example, for Aquinas Law is an ordinance of reason for the
common good promulgated by one who has the care of the
community. So we take a look at the meaning of each components
of Law.
(1) “an ordinance”
 Law therefore is a “command”
 It is not a sugggestion
 Therefore it is binding
Why an ORDINANCE?
Because, for Aquinas, Law is a COMMAND, it is not a
suggestion. And therefore being a command it is BINDING. So
even in Naturalism there is still the idea that it is a command
meaning it is something that should be complied with. Okay? So if
I tell you for example to get a piece of paper and then I’m not
saying that if you don’t do there are some consequences then I am
just therefore suggesting other than saying you get a piece of paper
because there is a test and an examination and you have to comply
with it otherwise you will fail. So the mandate of that rule is that it
is to be complied with. In fact, even in Natural Law, (well don’t
think that this is a command theory) but even in natural law, there
is an idea that “Law is Law if it is BINDING” - to distinguish
therefore Law from all others that do not require compliance. So
that is the meaning of ordinance.
(2) of reason
 “reason”. Which is the ability to tell what is right and
what is wrong is God-given, hence naturally exists in the
individual
 Law expresses the mind or will of the authority
 Law must be reasonable, just and useful for achieving
its end
 The “end” of life is “happiness” or “beatitude”
Based on REASON
It is based on reason which is natural in every individual
because it is instilled by God toevery human being. Now it is
based on reason so that as a rule LAW must be REASONABLE,
JUST, and USEFUL for achieving its END. You remember the
words of Aquinas that everything is towards a particular SOCIAL
END which is happiness or beatitude. So a Law that is not based
on reason, a law that is unjust, a law that is not for the common
good is not based on reason and therefore should NOT be
considered Law.
In your reading of Blackwell you might have encountered
the STRONG and the WEAK reading of St. Thomas Aquinas’
work. When we say Strong and Weak reading, we are referring to
the interpretation of legal theorists on the work of Aquinas. So if
we say, you are interpreting St. Thomas Aquinas’ work on the
matter as under the strong reading then you are saying that Law is
unjust then it is not a Law, that is actually the thinking also of St.
Augustin, if Law is unjust it is not Law.
But the WEAK reading of the work of St. Thomas Aquinas
as analyzed by Finnis for example, he would say that, actually it
can be said that because St. Thomas Aquinas also accepted the fact
that there is indeed UNJUST LAWS, so the weak reading of
Aquinas really is that - Law that is unjust is still a Law but you
just call it as unjust law.
Okay? It’s different when you say that it is not Law if it is
Unjust. Because if it is not a Law then it is not binding. Okay?
And if you say, a Law that is unjust is still a law but it is an unjust
law then there may still be a coercive power of the law except that
it is not legitimate that the state will have to exercise their
coercive power. Because if you based it on the strong reading, the
State will not even be allowed or permitted to exercise its coercive
power if the law is unjust because that is not a law in the first
place.
So you remember the distinction of the strong and weak
readings of St. Thomas Aquinas. This is just interpretations of his
work. There are thinkers who interpret the words of Aquinas that
way and others the other way.
(3) For the common good
 Law is not given to just one individual, butt to a
community
 It does not govern a single act, but it is a rule of action
for all that are covered by the law
 It is, therefore, general
E2For the COMMON GOOD
 And this is the substantive element also of St. Thomas
Aquinas’ definition. Well, it should be for the common good
because as you know, Law is not just intended for an Individual
but it is intended for the entire community. And therefore, for him,
Law must be general in application. And because it is general in
application. It must be promulgated by one who has the care of the
community precisely. But when we say promulgated.
(4) Promulgated
 Law must be made known to those for whom it is intended
to be binding
 It must be made public because law is not intended to be
binding only upon an individual
It must be promulgated by one who has the care of the
community. Precisely, but when you say promulgated according to
St. Thomas Aquinas because the law is binding it is important that
it will be made known to the governity. That is I think the meaning
of being promulgated. It be be known to those whom intended to
be bounded. Therefore, mode applicable to the public.
(5) By one who has the care of the community
 The one who hands down the law must have “authority” to
do so, it is important that it
 The authority must be rightful
 The authority must act for the common good
By one who has the authority over the subject of the law. It it
imposed, issued and promulgated by one who has the authority
then it is based on St. Thomas Aquinas has considered as a
component of law, even if it is for the common good, but not
promulgated by one who has the authority then is not part of what
St. Thomas considered as component.
Aquinas & the Overlap Thesis
“Every human law has just so much of the nature of law as is
derived from the law of nature. But if in any point it deflects from
the law of nature, it is no longer a law but a perversion of law”
Augustine: “an unjust law is no law at all”
Overlapped - law and morality are related, sometimes law is
judge on the basis of acceptability, validity and legitimacy on the
basis of its moral standard.
To St. Thomas Aquinas, it was not morality, as we know
today, which is morally similar to ethical standard but when you
say morally under the natural law theory, it is simply based on
natural law which is REASON.
Morality on the work of St. Thomas , it is not so much of the
ethical standard. He said “every human laws has so much of of the
nature of law as derived in the law of nature. But in any point
deflects from the law of nature, it is no longer a law but perversion
of the law”
Strong reading - is not a law
Weak reading - is still a law but a perverted law
In the strong reading, it is not a law, so the state is not
permitted, and it is legitimate exercise of a coercive power if the
law is to be implemented.
But weak reading, it is still a law but is a perversion of the
law, then the state is given justification to coerce, to exercise its
coercive power - but that may not be legitimate as it is exercising
an enforcing an unjust law.
You can also encounter this is the work of HLA Hart.
Neo-naturalism of John Finnis
 The essential function of law is to provide a justification for
state coercion;
 An unjust law can be legally valid, but it cannot provide an
adequate justification for use of the state coercive power and
is hence not obligatory in the fullest sense;
 Thus, an unjust law fails to realize the moral ideals implicit
in the concept of law.
 An unjust law is legally binding, but is not fully law.
St. Thomas Aquinas is the classical natural law theory.
For John Finnis, the essential function of the law is to
provide a justification, meaning, the only question for the validity
of law is whether the implementing the law is justiciable or not on
the part of the state, and by implementing the law, meaning, the
state exercises it coercive power.
That is simply based that you don't obey the law then it is justified
in imposing penalty - that is the exercise of its coercive power.
For John Finnis, that is the ultimate purpose of the law, law is
valid, if its justifies its coercion unlike in the case o St. Thomas
Aquinas, law is based on reason.
So an unjust law can actually be legally valid, meaning it justifies
state’s coercion but it cannot provide for the adequate justification
for the use of the coercive power and therefore, not obligatory in
the fullest sense. Mae be obligatory, it exist as a law but the sense,
it is an unjust law, then there is no justification for the exercise for
the exercise of coercive power but of course, the state can exercise
coercive power, because it is still a law than the rest.
The law may be harsh but it is the law
= the law may be harsh in applying to you and under certain
circumstances surrounding your case but it still a law nonetheless.
An unjust law is legally binding but not fully a law. This is
actually an expression of the weak reading of natural law, that is
John Finnis interpreting the work of St. Thomas Aquinas.
John Finnis & Naturalism:
The term “law” ... Refer primariy to rules made, in accordance
with regulative legal rules, by a determinate and effective
authority (itself identified and, standardly, constituted as an
institution by legal rules) for a ‘complete’ community, and
buttressed by sanctions in accordance with the rule-guided
stipulations of adjudicative institutions, this ensemble of rules and
institutions being directed to reasonably resolving any of the
community’s coordination problems (and to ratifying, toleratin,
regulating, or overriding co-ordination solutions from any other
institutions or sources of norms) for the common good of that
community (Finnis 1980, 276)
Why is john Finnis theory/thinking still considered part of natural
law?
- it is because what he said about the law that in the end, it should
still be for the common good of the community.
Legal Positivism
 Law is a matter of what has been “posited”
 Denies “Overlap Thesis” of Naturalism
 John Austin’s Comman Theory” (influenced by Jeremy
Bentham and Thomas Hobbes): “laws are commands of the
sovereign:, “combined with a willingness and ability to
impose and evil if that wish is not complied with”
 John Austin’s “Separability Thesis”: “The existence of law is
one thing; its merit or demerit is another. Whether it be or be
not is one enquiry; whether it be or be not conformable to an
assumed standard, is a different enquiry”
 H.L.A Hart on the Separability Thesis: “It is in no sense a
necessary truth that laws reproduce or satisfy certain
demands of morality, though in fact they have often done so”
(Hart 1994, 185-186).
Legal Positivism - law is rather rather of what has been
posited, what has been ordered. Law is law because it is what has
been ordered, it is enacted, directed to govern, it is fixed. Thatt
what makes a law a law, the mere fact that is is fixed, posted and
ordered.
That is basically the thinking of the Command Theory of
John Austin.
At first, legal positivvism existed because it wanted to deny
the relationship between law and morality. Remember what John
Austin said that Command theory “the exercise of law is one
thing, its merit or the merit is anotheer thing, whether it be or be
not if one inquiry, whether it be or not conformable to an assume
standard is also different....”
So lahi ang pag think of law sa binding sa legitimate law,
different sad whether it conforms to some assumer moral standard
(Utilitarianism)
John Austin’s Command Theory
- laws are command of the sovereign - one who is not a
subject to a control or any other sovereign power.
This is his ideal of relationship between morality and law
and even HLA Hart., it exposes separability when he said it is with
no sense that necessary truth that laws reproduce or satisfies
certain demands of morality though in fact they are often done so.
oIt is not necessary that law is substantively advances some
principles of morality.
o That legal positivism is all about; morality is not a test of
the validity, acceptability or efficacy of the law.
o Note: that legal positivism DEVELOPS. In the past where
society thought of kings, monarchs as absolute rulers. Thus,
the idea of command theory persisted but not long. In the
mid of 20th century where democracy started to flourished
and states began to think differently because of civilization.
As a result of some liberalist thinkers from Montesquieu ,
Rousseau, john locked think also the development of how
they think of what is law. That law shouldn’t be thought
simply as one as in doubt. Their are other aspect of society
that should be considered in order to test the validity of law
and this is where modern positivist theorist started to
include in the determination of the validity of laws other
than the fact that it is handed down by the sovereign.
Consideration such as ; “ how the a law is to be implemented?
How the law is promulgated?
Legal Positivism
 By mid-20th century, command theory lost its influence on
modern legal theorists: Hans Kelsen, H.L.A Hart, and Joseph
Raz;
 Hans Kelsen’s Basic Norm Theory: “Law is not, as it is
sometimes said, a rule. It is a set of rules having the kind of
unity we understand by a system.: (1945); the reason for the
validity of a norm must always be another norm (i.e.,
“presuppose” the basic norm).
 H.LA Hart: the validity of a legal system is a social rule that
exists only because it is being “practiced” (see Hart’s source
determining “rule of recognition)

 Hart disagrees with Austin in that Austin’s theory refers only
to what Hart called “primary rules”
 But, modern legal systems are actually a union of “primary
rules” and “secondary rules” (rules of recognition, rules od
change, and rules of adjudication) that make primary rules
effective.
Hans Kelsen’s Basic Norm Theory:
oIt is not necessary that law is substantively advances some
principles of morality.
o That legal positivism is all about; morality is not a test of
the validity, acceptability or efficacy of the law.
o Note: that legal positivism DEVELOPS. In the past where
society thought of kings, monarchs as absolute rulers. Thus,
the idea of command theory persisted but not long. In the
mid of 20th century where democracy started to flourished
and states began to think differently because of civilization.
As a result of some liberalist thinkers from Montesquieu ,
Rousseau, john locked think also the development of how
they think of what is law. That law shouldn’t be thought
simply as one as in doubt. Their are other aspect of society
that should be considered in order to test the validity of law
and this is where modern positivist theorist started to include
in the determination of the validity of laws other than the
fact that it is handed down by the sovereign.
Consideration such as ; “ how the a law is to be implemented?
How the law is promulgated?
H.L.A Hart: the validity of a legal system is social rule that
exists only because it is being “practice”
o A law is a valid if it is in fact socially practiced.
According to hart the first rule on the secondary rule
means that if you have a law/rule you must be able to
recognize where it came from.
o The modern interpretation of Hart’s work can also mean
under the theory of recognition. (i.e think a specific rule
and think why should law be published? Because law as
basic practiced need to be published for its effectivity.
Article 2 CC)
Hart disagrees with Austin:
o According to Hart, Austin has made a mistake in
oversimplifying his idea of a rule. If you think a rule that
is something ordered to be done backed by threat of
force/evil then this means as primary rules. If law is
simply referring to primary rules then it is only
prescribing of what is actually governing a primitive
state.
o Primitive state/society has only primary rules. (i.e in
Primary rules: ordered all inhabitants of his territory
can only eat twice and only the king and queen and
children will eat thrice. WHAT can you test the validity
of this primary rules?) Remember, in a primitive state
there’s NO. But in modern society that rule can be
assailed as discriminatory, unfair and unjust (basis is the
secondary rules).
o According to hart in a modern society laws are made
more effective and to be more effective there must be a
secondary rule (“rules about the rules”.) rules that tell
how primary rules to be implemented and to be observe.
o It’s a new development in positivism because while
Austin, Bentham, Thomas Hobbes and even
Blackstone thought of rules a pertaining to primary
rules under the command theory that it develop
something else which refer to the work of Hans
Kelsen basic Norm and HLS Hart primary and
secondary rules.
Lon Fuller & Procedural Naturalism
 The only formula that might be called a definition of Law
offered in these writings is by now thoroughly familiar: law
is the enterprise of subjecting human conduct to the
governance of rules. Unlike most modern theories of of law,
this view treats law as an activity and regards a legal system
as the product of a sustained puposive effort (Fuller 1964,
106)
 To the extent that a definition of law can be given, then, it
must include the idea that law’s essential function is to
“achieve [social] order through subjecting people’s conduct
to the guidance of general rules by which they may
themselves orient their behavior” (Fuller 1965, 657)
“Atty. Didn’t expound this”
Lon Fuller “Internal Morality” of law
A system of rules must satisfy the following principles;
(P1) The rules must be expressed in general terms;
(P2) The rules must be publicly promulgated;
(P3) The rules must e prospective in effect;
(P4) The rules must be expressed in understandable
terms;
(P5) The rules must be consistent wit one another;
(P6) The rules must not require conduct beyond the
powers of the affected parties;
(P7) The rules must not be changed so frequently that the
subject cannot rely on them; and
(P8) The rules must be administered in a manner
consistent with their wording
o Lon Fuller work is something naturalism. The neo-
naturalism of John Finnis and positivism.
o Some author would say that Lon Fuller’s work is more
on positivism. But Lon fuller itself clarified that his
 standard of the validity of law have nothing to do with
the substance but only in the procedure.
o The internal morality of law is considered as the
principles in order to have a valid system or rules.
o That rules must be expressed in general terms….(refer to
the principles of the internal morality of law of Lon
Fuller.)

Lon Fuller’s “Internal Morality” of law does nor

ental substantive morality of law

“What I have called the internal morality of

law is… a procedural version of natural law.. {in
the sense that it is} concerned, not with the
substantive aims of legal rules, but with the ways in
which a system of rules for governing human
conduct must be constructed and administered if it is
to be efficacious and at the same time remain what it
purports to be” (Fuller 1964, 96-97)