A Theory of Law

By Claudius Mollokwu

This work is a work about the natural law- a tradition that for the best of two millenia has informed legal systems all across the European and western traditions. In late modernity, it declined before making a comeback in the mid twentieth century. This works aims to explain the natural law and seeks to note that the natural law is the best type of legal thought that can inform the European and western traditions of legal thought and legal practice.

• Language: English
• Publisher: AuthorHouse UK
• Release date: Jun 12, 2024
• ISBN: 9798823088206

Claudius Mollokwu

Claudius Mollokwu is a writer. He has degrees in history and law from the University of London and the University of Oxford. Claudius is the author of a prize winning work on the Victorians.

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© 2024 Claudius Mollokwu. All rights reserved.

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Published by AuthorHouse  06/11/2024

ISBN: 979-8-8230-8819-0 (sc)

ISBN: 979-8-8230-8820-6 (e)

Library of Congress Control Number: 2024911503

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CONTENTS

Introduction

PART 1: FIRST PRINCIPLES

1. The Natural Law Tradition

2. On Practical Reason

PART 2: CONTENTS OF THE NATURAL LAW

3. Goods and Rights

4. On Authority

5. The Meaning of Law

PART 3: POLITICS

6. The Civic Square

Concluding thoughts

Postcript

Bibliography

INTRODUCTION

This work is a work about the natural law- a tradition that for the best of two millenia has informed legal systems all across the European and western traditions. In early modernity, it declined before making a comeback in the mid twentieth century. This works aims to explain the natural law and seeks to note that the natural law is the best type of legal thought that can inform the European and western traditions of legal thought and legal practice.

Given that I first trained in the law at Oxford, it was only a matter of time before I revisited my first academic subject. I thoroughly enjoyed my studies in Jurisprudence which whilst challenging has proven to be of use in terms of my understanding as to the theoretical underpinnings of the law.

Oxford is a university very much versed in and acquainted with analytic philosophy and analytic legal theory. Whist often difficult and technical it is a welcome development of philosophy since it wishes to deal with philosophical subjects in detail in plain, clear and accessible language.

Despite being schooled in the positivist and antipositivist schools which contained the likes of HLA Hart, Ronald Dworkin, Joseph Raz, Neil Mccormick and PS Hacker I did not come across the works of natural law scholars with the exception of Professor John Finnis’ ‘Natural Law and Natural Rights’ and even then I was only dealing with his views concerning Hart’s internal point of view and not much else.

I was always a natural law lawyer even though I was not aware of such a term. I was always roman and always catholic- hence in that sense I had always supported a theory of a god and morality which makes itself known to the individual and the community and makes its way into an account of societies and its various norms and principles that allows such societies to function well and accordingly.

This work gives me a chance to explore and document my views concerning the natural law tradition.

Put simply, the natural law believes that law and morality are inextricably bound up with one another- there is little or no difference between the two- law is moral and morality is lawful. Like the Roman Catholic philosopher and theologian Saint Thomas Aquinas I note that all laws have their origin, subsist in and derive from God. Like Aquinas, I also accept much- if not all of the positivist agenda bar one or two issues here or there. The natural law has moved on- no longer is it so much primarily about individual initiative and laws deriving from nature- it is now about norms derived from the rules of society- positive law- in short it is an account of social practice derived from practical and critical reason in relationship with and informed by morality and faith. The new natural law is also much more bolder and more confident about identifying the goods that are necessary to secure in order to lead the moral and beneficent life.

This work, like Professor John Finnis’ welcome contribution and classic restatement of natural law in ‘Natural Law and Natural Rights’ is an attempt to explain the main issues of law from a background informed by the natural law. In modern times with the likes of Jeremy Bentham, Austin, Emile Durkheim and Auguste Comte, the law has become more positivist and more secularist abandoning any account of the law as being underpinned by an account of morality and religion. However since the release of Professor Lon Fuller’s ‘The Morality of Law’ which presented law from a natural law point of view- albeit it in its secular guise, the debate between the positivists and natural lawyer has naturally moved on. As Finnis notes, there is little difference between the positivists and the natural law. All accept that the law is positive, normative and has a relationship with morality, even if they disagree as to what type and form of morality informs such an enterprise. Like positivism the natural law has an account of practical reason which deciphers norms, hence in that sense it agrees with the works of Hart and Dworkin that jurisprudence is normative- where they differ from one another, is which norms count as definitive and valid in society, and which norms do not and remain invalid.

What dives the two- positivism and the natural law tradition, is that the first uses the enlightenment’s account of human reason to configure and decipher norms that govern society. Meanwhile, the natural law tradition as a result of its Christian infused body of thought uses faith to inform its account of the norms that govern society. However in recent times, scholars from the enlightenment tradition are beginning to accept faith as an accompaniment in assisting human reason to advance the norms that govern society. For example, in a celebrated meeting Jurgen Habermas, a scholar well known for his support of the enlightenment and Cardinal Joseph Ratzinger of the roman catholic church, In what was a game changer, Habermas agreed that faith too has a role to play in configuring the norms that govern society- it has a role to play in society- he pointed out that any liberal’s wish to outlaw religion in the public square would be highly liberal, and highly counter to and paradoxical to their original principles.

Through the likes of Finnis, Germain Grisez and Boyle, the natural law tradition has moved on- the new natural law through these three theorists including Fuller has accepted and broadly incorporated many of the tenets of positivism. What is at issue and the dividing line between the two is what I call the ‘sources argument’. The positivists believe that the use of practical human reason can inform much about the law. The new natural lawyers disagree- though they accept the positivists’ device and use of practical reason which can configure accurate real, objective and universal facts about the law, the new natural lawyers still believe in the traditional relationship between reason and faith- for them faith can inform and supplement practical reason when the latter runs into epistemological difficulties. For the new natural lawyers, positivism and positivist laws are grounded in an account of god, faith and revelation which supplements and informs legal data and legal knowledge.

This work is a work of analytical jurisprudence, a school I have been fortunate to have been brought up and educated in. It is also a work of normative philosophy- like the new natural law tradition I have more faith in the capacity of human reason to decipher the norms, principles and goods that constitute the virtuous and good society. I also use and incorporate moral and political philosophy as well as legal philosophy into my expositions. This work sees me accepting for the most part, all of the positivists argument- that debate is over and done with- the new natural law is normative, positivist and has an account of practical and critical reason. As Professor Susan Dimock notes, all accounts of natural law theories are distinguished by their believe in the efficacy of normative and prescriptive agents- however even the positivists such as Hart, accept that norms govern society- it is not just descriptive- it’s also normative and prescriptive.

What divides myself as a natural lawyer and positivists such as Hart and Raz is that unlike them I note the validity of Catholic Christian thought to inform and guide human reason to a fuller and more richer appreciation of the law and all that such views entails. I chiefly draw upon the knowledge of the Roman Catholic church which has been issued since as Finnis notes the Roman and Catholic church in alliance with her teaching magisterium and her scholars, have legitimate claims to be the main and chief promulgator of the natural law tradition. This work is a defence of the natural law informed by the thoughts of Aristotle and Saint Thomas Aquinas, though of course as well as these two, I use the thoughts of many other philosophers where appropriate and where apposite to substantiate and make my points.

For those interested in the first principles of legal philosophy, the first two chapters contained in Part 1 are of note. For those who want a deeper and in-depth discussion of legal and moral philosophy they should acquaint themselves with Part 2. For those interested in political philosophy and political thought, Part 3 will suffice.

PART 1

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FIRST PRINCIPLES

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CHAPTER 1

THE NATURAL LAW

TRADITION

T HE NATURAL LAW TRADITION HAS for the best of two millenia informed both the English-speaking common law world and the European and western civil system. The nineteenth century judge, Lord Edmund Coke identified the natural law as part of England’s common law system. Put simply, natural law is law derived from an account of human reason informed by the dictats of morality and faith. The Roman Catholic church