Philosophy of Law

Thesis 14

Thesis Statement: Natural Law theory as a foundation for lawmaking decisions and as a
fundamental framework that integrates practical decision making and natural universal
principles. It is here that Natural law, in contrast to Legal Positivism, provides a firmer and
practical means of the application of law.

Discussion/Answer:

In chapters four and five of Dennis Lloyd’s The Idea of Law it discusses two main themes

in viewing legal philosophy and that is Natural Law and Legal Positivism, which in essence

discusses the realities of an inherent objective moral/just truth or that of a man-made creation.

Now, in the interest of the discussion, and as well as providing a clear position on the direction of

this paper, there exist a real debate in both the courts of nations and in the academe regarding the

status of statutes, laws, morality, and human nature in either the objective nature of authority/order

or in the lack thereof of such natural law theory places fundamental and the objective truth of

reason and a real existing natural order that is inherently present in both moral and law making

decision making. Legal positivism on the other hand argues the order and laws are artificially

constructed by man with absolutely no relation towards any form of supposedly metaphysical

basis. In this paper that Natural Law Theory provides a stronger position in moral and ethical

decision making but must be tempered with the material conditions.

It is important to have a general understanding of the key principles of what Natural Law

Theory forwards. Natural Law links any and all forms of the authority of laws, morality, and human

action towards something outside of the manifestation of the law itself, as it is written, spoken, or
acted out.1 The best examples of such an outside force or authority is clearly displayed in religious

justifications of personal, social, and national level laws that expounds a great effect in the

construction and following of the law insofar as it follows the established demands of an

institutionalized religion. Islamic Shariah law and the ten commandments in Judeo-Christian

religions in its essence gain its authority from the notion of an ultimate source of authority that is

linked to God, which sets the imperative basis of authority and obedience of its followers.2

. Now, within Natural Law it stresses absolute to strictly follow that reason alone connects

the fundamental reality of an objective moral and structural truth that obligates all of humanity to

follow by sheer principal fact of recognition of the other alone, that does not ultimately depend on

a piece of written legislation but on an ultimate legislation that orders laws and action. It is here

that Natural law finds basis both within religious frameworks/doctrines and in secular

dispositions.3 Now forwarding the discussion on Natural law it is important to discuss the

strengths and the overall authority it provides. Natural law sets out a universal moral foundation,

while admittedly it will vary, for legal reasoning that is grounded in reason and objective principles

of justice based on this universal foundation of an absolute objective truth, be it in the form of

religious texts or in that of a secular universal maxim.

It also provides a universal applicability that encompasses all societies, legal systems,

moral frameworks, and cultures in a universal understanding but in a varied application. 4 It also

provides an untestable recognition of the inherent worth and dignity of the human person and seeks

1
Dennis Lloyd Baron Lloyd of Hampstead, The Idea of Law (New York: Penguin Group, 1976), 72.
2
Dennis Lloyd Baron Lloyd of Hampstead, Natural Law, 79.
3
Dennis Lloyd Baron Lloyd of Hampstead, Natural Law, 82.
4
Dennis Lloyd Baron Lloyd of Hampstead, Natural Law, 83.
to protect this and extends towards the execution and acting out of power in order to ensure the

protection of this uncontestable inherent right within the simple act of existence of the being.5

But Natural law holds its own weaknesses that prove to be rather controversial,

contradictory, and limiting within its theory and praxis. Natural law in its major flaws lies in its

tendency to be too abstract and vague to the extent that it becomes problematic to apply in specific

cases by sheer fact that a identified principle, in this case of Kant’s categorical imperative that

leaves either with too much space for deliberation or with too little leeway in application. This

trend follows in the conflicting assumptions on human nature in general with varied outlooks on

either an inherently good, evil, or neither basis which greatly affects the supposed objective moral

principles and the basis of morality and of legislation/law.

Insight:

Natural law, in its secular version at least, provides possibly the best means of grounding

and framing the legal system into a framework of integrating a universally applicable system into

case specific application. A universal principle, that of a universal constitution, aimed at unifying

the legal system with the express focus on refining the capacity to deal with case specific issues.

Conclusion:

This approach of a Universal Constitution requires a very optimistic view towards the

realities of present day politics in all nations, there must be a much needed revolution or push

universally towards political and social maturity in the form of large coalitions of nations within

5
Dennis Lloyd Baron Lloyd of Hampstead, Natural Law, 84.
the factors of identity, culture, and societal formation in order to adjust accordingly to each nation’s

identity, and its sub-identities within its constituents, but also providing the political and economic

means of mutual cooperation. This would also greatly come into the next step of a large-scale

representation and deliberation of all representatives of minorities and majorities in order to cater

to a refined and reasoned universal constitution with it following arduous legislative process of

lawmaking.

Reference: Dennis Lloyd Baron Lloyd of Hampstead. (1976). The idea of law. Penguin Group