University of London LLB International Programme at Horizon Campus

LA3005: Tute for Jurisprudence and Legal Theory

Name of Lecturer - H.R. Chiranthi Senanayake

Natural Law: A Jurisprudential Examination of The Relationship Between

Law and Morality (02)

Beyond the Natural Law of Ancient Greek and Rome

 The natural law theories of ancient Greece and Rome has

had a cascading impact on the development of jurisprudence
because it highlighted a core concern on whether morality
should be a metric of the law. If the validity of law should be
measured by morality, then one may bring about the extreme
argument lex injusta non est lex, i.e. what is unjust as per
natural and political morality can never be the law. For example, if a law was passed which said
that all women must undergo deflowering prior to marriage, then such a law would be invalid on
the basis that it contravenes with morality. It is important to note here that even though the
adopted law originates from a valid authority, it is still deemed invalid because of its content.
 This extreme argument of the natural law theorist is often criticised by legal positivists
because they believe that such a law (even though it is an abhorrent one) has been passed by the
correct authorities. In other words, the dictates of morality can be distinguished from the dictates
of the law. It must be noted here that it is not only natural law scholars who believe that laws
should correspond with moral standards. All jurists criticise the law for contravening with
morality. To be a true natural law scholar, one must apply the test of validity and confirm that a
law is invalid if it contradicts morality. This is a high threshold. For example, Jeremy Bentham
who is a leading legal positivist criticised the English law in many accounts as being “bad” law
but acknowledged the validity of such laws. Therefore, in the face of this criticism of legal
positivists, natural law scholars have been required to present a more plausible and logical
argument in favour of the relationship between law and morality.
 Though natural law scholars commonly agree that law must correspond with morality,
they did not see eye to eye on what this morality is. The consequential theories on natural law
varied in this front because some argued that morality is human intellect, whilst others spoke of
morality as an expression of God’s will.

St. Aquinas and The Theory of Natural Law

 Though ancient civilizations had considered divine sources of morality, the examination
of Greek and Roman scholars evidentiate that God was not a central figure for their perceptions
of morality as a metric of the law. It was the Christianization of these two empires (which were
pagan civilizations) that forced natural law scholars to acknowledge God as a key source and
determinant of morality.

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LA3005: Jurisprudence and Legal Theory
 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

 It was the influence of St. Thomas Aquinas that led to a reconstruction of classical natural
law through Christian theology.

Who is St. Thomas Aquinas?

St. Aquinas was an Italian Dominican friar and priest, who was an
immensely influential philosopher, theologian and jurist in the
tradition of scholasticism; he is known within the scholastic
tradition as the Doctor Angelicus, the Doctor Communis, and
the Doctor Universalis. The name Aquinas identifies his ancestral
origins in the county of Aquino in present-day Lazio, Italy. Among
other things, he was a prominent proponent of natural theology and
the father of a school of thought (encompassing both theology and
philosophy) known as Thomism. He argued that God is the source of both the light of natural
reason and the light of faith1.
 The central idea of St. Aquinas’s approach to natural law theory is that God and his
influence did not conflict or abolish man’s natural sense of morality but merely perfected it. This
led to the creation of a Christianised version of natural law tradition.
 St. Aquinas reformed Aristotle’s teleological perspective 2 and argued that man’s end goal
in life was not to live as a social being who sought knowledge, but as a member of a Christian
community who would come to adore and live by the word of God.
 The jurist identified four separate ‘orders of law’ through which man was able to
appreciate and engage in good practices set forth by God. This allowed mankind to actively
participate in the moral order of nature designed by God. The following are the four orders of
law as seen by St. Aquinas.

(Extracted from the study guide for ease of reference)

Eternal law: The whole universe is governed by divine providence or divine reason, which is
the ultimate order imposed by the Creator.
Natural law: Humans are special creatures in having a special relationship to divine wisdom
or providence, in that since they possess reason and free will, they have a ‘share’ in this divine
wisdom themselves. This participation of man in the ordering of his affairs by reason is
participation in the rational order ordained by God, and this is natural law.
Human law: Human law consists of those particular rules and regulations that man, using his
reason, deduces from the general precepts of natural law to deal with particular matters. For
example, it is a natural law precept that crimes must be punished with a severity that
corresponds with the seriousness of a crime, but it is necessary to specify the actual
punishment that, say, a thief will receive under a particular legal system, and the use of reason
1
John O’Callaghan, ‘Saint Thomas Aquinas’, (Britannica Encyclopaedia, 23 May 2014)
<https://www.britannica.com/biography/Jeremy-Bentham> accessed 15 September 2022.
2
Teleology is a results-oriented approach that defines ethical behaviour by good or bad consequences.

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LA3005: Jurisprudence and Legal Theory
 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

to provide a punishment of, say, two years is the use of reason called ‘human law’. This might
also be called ‘positive’ law, as it is the actual law posited by legal institutions.
Divine Law: This is the law that is revealed by God to man, more or less directly, through the
provision of the 10 commandments or through scripture more generally, or via the divinely
inspired pronouncements of prophets or the Church Aquinas: St Thomas Aquinas (1225–74)
Italianborn Christian (Catholic) theologian and philosopher. page 58 University of London
fathers or the pope. Divine law most directly concerns man in his relation to God and
achieving paradise; it lays down how man is to act in relation to God (in terms of the
requirement to take part in rituals such as baptism and Holy Communion, and in forswearing†
other gods or idols, for example) and furthermore covers those matters of the soul which
human institutions are unfit to regulate, such as evil thoughts, which are nevertheless of vital
importance to a man’s relationship with God.

Though much of divine law would be Church or Canon law, to the extent that religious law
was also enforced by secular authorities like city states or princes (for example laws against
usury or blasphemy or witchcraft), divine law could be instantiated in secular law as well.
Furthermore, there is an overlap between this law of revelation and natural law, in such
matters as are covered by, for example, the 10 commandments, where the prohibitions against
murder, theft, bearing false witness and so on, are declared by divine law but can also be
appreciated as natural law precepts as well

Understanding St. Aquinas’s Legal Reason, Human Law and The Obligation to Obey Law

 St. Aquinas believed that the law was a byproduct of man using his reason to engage with
the wisdom of God. This allowed the law to be a ‘logical deduction’ of general principles
existing in natural law which was also ordained by God.
 Apart from the engagement in moral precepts through reason, there was a second way in
which human law was created in accordance with natural law. He explained this by using the
analogy of a house, where he stated that general architectural principles require a doorway of a
house to be more than 30 cm for it to be functional. However, it does not state the actual height
of a doorway. In the same way, natural law merely states that theft should be punished and
leaves the form and severity of punishment for mankind to determine.
 This distinction between what is laid down by the natural law and what is ultimately
practiced by mankind was defined by St. Aquinas as specificatio and determinatio respectively.
Specificatio – What the natural law lays down and what man ultimately can deduce from it.
Determinatio – The practical implementation of natural law which is left upto the discretion of
mankind alone.
 St. Aquinas also believed that human law has certain limitations as opposed to natural
law (the general precepts of morality) does not have, due to the unique function it serves. The

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LA3005: Jurisprudence and Legal Theory
 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

role of human law is to not only be a general framework for conduct but must also be a
disciplinary force in specific situations. For example, human law must not only state that murder
is illegal but it also should create mechanisms to deal with killers such as Harold Shipman.
Therefore, its task is to create a flourishing human civilization on earth.
 An interesting dimension of St. Aquinas’s theory is that human reason is imperfect. This
requires the law to apply uniformly but provide for exceptional cases to ensure that there is
equity. Such a provision can only be made by the makers of the law and the judges interpreting
the law.
 Since human laws are sourced from natural law but are a more particularized and
humanized version of the latter, it is very possible for the human law to evolve over the course of
time. St. Aquinas believes that such changes must come about only when the harms of the
existing law outweigh the general merits. This is because if the laws change often, then they lose
their legitimacy and credibility as a force of discipline, whilst now allowing for the development
of certain customs.
 Furthermore, St. Aquinas believes that the law can only demand its conscientious
following if it aligns with natural law. Where a law is contrary to natural morality, then such an
unjust law is more a force of violence rather than a force of control. This does not mean an unjust
law is not a law because it will possess certain basic characteristics of an applicable law, as it
was created and enforced by those with legitimate power. As the law is a necessary institution
for communal survival, every member of a society has a duty to follow it and ensure its success.
If one chooses to break the law, they must consider the moral implications of doing so. This is
because if the law is broken on the basis of moral reasoning, it can also be broken for selfish and
personal reasons.

References
O’Callaghan, J. ‘Saint Thomas Aquinas’, (Britannica Encyclopaedia, 23 May 2014)
<https://www.britannica.com/biography/Jeremy-Bentham> accessed 15 September 2022.

Freeman, M. (ed.) Lloyd’s Introduction to Jurisprudence. (London: Sweet & Maxwell, 2014)
ninth edition [ISBN 9780414026728].

Coleman, J. and S. Shapiro (eds) Oxford handbook of jurisprudence and the philosophy of law.
(Oxford: Oxford University Press, 2002) Chapter 1: (John Finnis) ‘Natural law: the classical
tradition’, and Chapter 2: (Brian Bix) ‘Natural law: the modern tradition’.
http://onlinelibrary.london.ac.uk/resources/databases/oxford-handbooks-onlin

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LA3005: Jurisprudence and Legal Theory