Editing Jurisprudence (section)

== {{Anchor|Natural law}}Natural law ==
Natural law holds that there are rational objective limits to the power of rulers, the foundations of law are accessible through reason, and it is from these laws of nature that human laws gain force.<ref>Shiner, "Philosophy of Law", ''Cambridge Dictionary of Philosophy''</ref> The moral theory of natural law asserts that law is inherent in nature and constitutive of morality, at least in part, and that an objective moral order, external to human legal systems, underlies natural law.<ref name=":42"/>
On this view, while legislators can enact and even successfully enforce immoral laws, such laws are ''legally'' invalid. The view is captured by the maxim: "[[an unjust law is no law at all]]", where 'unjust' means 'contrary to the natural law.' Natural law theory has medieval origins in the philosophy of [[Thomas Aquinas]], especially in his ''[[Treatise on law]]''. In late 20th century, [[John Finnis]] revived interest in the theory and provided a modern reworking of it.<ref>{{Citation |last=Finnis |first=John |title=Natural Law Theories |date=2016 |editor-last=Zalta |editor-first=Edward N. |url=https://plato.stanford.edu/archives/win2016/entries/natural-law-theories/ |access-date=2019-05-17 |edition=Winter 2016 |publisher=Metaphysics Research Lab, Stanford University |encyclopedia=The Stanford Encyclopedia of Philosophy}}</ref> For one, Finnis has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical [[Thomism|Thomist]] position.<ref>{{Cite book |title=The Blackwell Guide to the Philosophy of Law and Legal Theory |date=2013 |publisher=[[Wiley-Blackwell|Blackwell Publishing]] |isbn=9781782683131 |editor1=Golding, Martin P. |location=Malden, Massachusetts |oclc=841495455 |editor2=Edmundson, William A.}}</ref>

In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on the basis of being analogous to the laws of physical science. Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition. Another approach to natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance.
*''The strong natural law thesis'' holds that if a human law fails to be in response to compelling reasons, then it is not properly a "law" at all. This is captured, imperfectly, in the famous maxim: ''[[lex iniusta non est lex]]'' (an unjust law is no law at all).
*''The weak natural law thesis'' holds that if a human law fails to be in response to compelling reasons, then it can still be called a "law", but it must be recognised as a defective law.

===Aristotle===
[[File:(Venice) Aristotele by Francesco Hayez in gallerie Accademia Venice.jpg|thumb|[[Aristotle]], by [[Francesco Hayez]]]]
Aristotle is often said to be the father of natural law.<ref>Shellens, "Aristotle on Natural Law."</ref> Like his philosophical forefathers [[Socrates]] and Plato, Aristotle posited the existence of [[natural justice]] or natural right (''dikaion physikon'', ''δικαίον φυσικόν'', Latin ''[[ius naturale]]''). His association with natural law is largely due to how he was interpreted by [[Thomas Aquinas]].<ref>Jaffa, ''Thomism and Aristotelianism''.</ref> This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the ''[[Nicomachean Ethics]]'' (Book IV of the ''[[Eudemian Ethics]]''). Aquinas's influence was such as to affect a number of early translations of these passages,<ref>H. Rackham, trans., ''Nicomachean Ethics'', Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), ''Nicomachean Ethics'', Penguin Classics.</ref> though more recent translations render them more literally.<ref>Joe Sachs, trans., ''Nicomachean Ethics'', Focus Publishing</ref>

Aristotle's theory of justice is bound up in his idea of the [[golden mean (philosophy)|golden mean]]. Indeed, his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes.<ref>"Nicomachean Ethics" Bk. II ch. 6</ref> His longest discussion of his theory of justice occurs in ''Nicomachean Ethics'' and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice.<ref>{{Cite book |title=Nicomachean Ethics |edition=2nd |translator-last=Irwin |translator-first=Terrence}}</ref><ref name="ReferenceA">''Nicomachean Ethics'', Bk. V, ch. 3</ref> When a person's actions toward others are completely virtuous in all matters, Aristotle calls them "just" in the sense of "general justice"; as such, this idea of justice is more or less coextensive with virtue.<ref>"Nicomachean Ethics", Bk. V, ch. 1</ref> "Particular" or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably.<ref name="ReferenceA"/>

Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention.<ref>''Nicomachean Ethics'', Bk. V, ch. 7.</ref> This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of the morality enacted as law, not the laws themselves.

The best evidence of Aristotle's having thought there was a natural law comes from the ''[[Rhetoric (Aristotle)|Rhetoric]]'', where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.<ref>''Rhetoric'' 1373b2–8.</ref> The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was adverse to the case being made, not that there actually was such a law.<ref>Shellens, "Aristotle on Natural Law", 75–81</ref> Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong.<ref>"Natural Law", ''International Encyclopedia of the Social Sciences''.</ref> Aristotle's theoretical paternity of the natural law tradition is consequently disputed.<ref>{{Cite web | url=http://www.legalservicesindia.com/article/2105/Greek-Theory-of-Natural-Law.html |title = Greek Theory of Natural Law}}</ref>

===Thomas Aquinas===
{{Main|Thomas Aquinas|Treatise on Law}}
[[File:St-thomas-aquinas.jpg|thumb|[[Thomas Aquinas]] was the most influential Western medieval legal scholar.]]

Thomas Aquinas is the foremost classical proponent of [[natural theology]], and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the [[Roman Catholic Church]]. The work for which he is best known is the ''[[Summa Theologiae]]''. One of the thirty-five [[Doctor of the Church|Doctors of the Church]], he is considered by many Catholics to be the Church's greatest theologian. Consequently, many [[Institutions named after Thomas Aquinas|institutions of learning]] have been named after him.

Aquinas distinguished four kinds of law: eternal, natural, divine, and human:

* Eternal law refers to divine reason, known only to God. It is God's plan for the universe. Man needs this plan, for without it he would totally lack direction.
*[[Natural law]] is the "participation" in the eternal law by rational human creatures, and is discovered by reason
* [[Divine law]] is revealed in the scriptures and is God's positive law for mankind
* [[Human law]] is supported by reason and enacted for the common good.<ref>[[Louis Pojman]], ''Ethics'' ([[Belmont, California|Belmont]], [[California|CA]]: Wadsworth Publishing Company, 1995)</ref>

Natural law is based on "first principles":<ref>{{cite web|url=http://www.ccel.org/a/aquinas/summa/FS/FS094.html#FSQ94A2THEP1|title=Summa Theologica}}</ref>

<blockquote>''...&nbsp;this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this&nbsp;...''</blockquote>

The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based.

===School of Salamanca===
{{Main|School of Salamanca|ius gentium}}

[[Francisco de Vitoria]] was perhaps the first to develop a theory of ''[[ius gentium]]'' (law of  nations), and thus is an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that such affairs ought to be determined by forms respecting of the rights of all and that the common good of the world should take precedence before the good of any single state. This meant that relations between states ought to pass from being justified by force to being justified by law and justice. Some scholars have upset the standard account of the origins of International law, which emphasises the seminal text ''De iure belli ac pacis'' by [[Hugo Grotius]], and argued for Vitoria and, later, Suárez's importance as forerunners and, potentially, founders of the field.<ref>e.g. James Brown Scott, cited in Cavallar, ''The Rights of Strangers: theories of international hospitality, the global community, and political justice since Vitoria'', p.164</ref> Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have founded international law in the modern sense, instead placing its origins in the post-1870 period.<ref>Koskenniemi: "International Law and raison d'état: Rethinking the Prehistory of International Law", in Kingsbury & Strausmann, ''The Roman Foundations of the Law of Nations'', pp. 297–339</ref>

[[Francisco Suárez]], regarded as among the greatest scholastics after Aquinas, subdivided the concept of ''ius gentium''. Working with already well-formed categories, he carefully distinguished ''ius inter gentes'' from ''ius intra gentes''. ''Ius inter gentes'' (which corresponds to modern international law) was something common to the majority of countries, although, being positive law, not natural law, it was not necessarily universal. On the other hand, ''ius intra gentes'', or civil law, is specific to each nation.

===Lon Fuller===
{{Main|Lon L. Fuller}}

Writing after [[World War II]], Lon L. Fuller defended a secular and procedural form of natural law. He emphasised that the (natural) law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argued, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, the law must have a morality that goes beyond the societal rules under which laws are made.

===John Finnis===
{{Main|John Finnis}}

Sophisticated positivist and natural law theories sometimes resemble each other and may have certain points in common. Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work. The natural law theorists of the distant past, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence, while modern natural law theorists, such as John Finnis, who claim to be positivists, still argue that law is moral by nature. In his book ''[[Natural Law and Natural Rights]]'' (1980, 2011), John Finnis provides a restatement of natural law doctrine.<ref>{{Cite book|title=Natural Law and Natural Rights|last=Finnis|first=John|publisher=Clarendon Press|year=1980|location=Oxford|pages=18–19}}</ref>