Natural Law as A Standard for Evaluating Positive Law

Natural law seems to be a very effective method of determining the fairness of positive law. St. Thomas Aquinas asserts that, “…the rational creature…has a share of the Eternal Reason whereby it has a natural inclination to its proper act and end…as from general and indemonstrable principles, that the human reason needs to proceed the more particular determination of certain matters. These particular determinations, devised by human reason, are called human laws…” (Aquinas, Summa Theologiae: Question 91). That is to say that human posited law is assumed to function as a reflection of the morals valued and upheld by each society. Since coexisting in large groups necessitates having laws to dictate appropriate social behavior so that people may live together with as little conflict as possible, it is necessary to create legislature to safeguard the rights of each individual within the collective. It seems only natural that the laws we create to govern acceptable behavior throughout society should reflect natural laws like those against murder, stealing, and inappropriate sexual conduct. Accordingly, the laws that we utilize to regulate individual actions and interpersonal interaction should in some ways attempt to capture the moral convictions we hold.

Undoubtedly, there are often discrepancies and controversy surrounding the human interpretation of said “general and indemonstrable principles” as jurisprudence matures and develops in each country. For instance, marital laws in 19th century Britain that subjugated women to their husbands, various decrees of dictatorships in Spain and Argentina imposing censorship and political persecution during the 20th century, and Jim Crow laws in America reflect how positive laws can in fact be unjust. However, the standards of natural law and morality partly led to these laws, though enforceable and in many ways following the criteria of the rule of law (such as being clear and made readily available to the general population in a reasonable amount of time to be considered punishable), being repealed. All of these examples are ones of laws that were in place for a significant amount of time, but reflecting the gradual shift in man’s understanding of natural law and how it applies to how groups that are considered the minority (whether by gender, political stance, or race) should be treated. In these and many other cases, what we find morally appropriate, or more precisely what we do not find morally reprehensible, is used as a guide to determine what should be prohibited through law (and thus how people should conduct themselves on a regular basis).

#ruleoflaw #aquinas #naturallaw

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s