Natural Law and Positive Law


in In Defense of Natural Law

Published in print February 1999 | ISBN: 9780198267713
Published online March 2012 | e-ISBN: 9780191683343 | DOI:
Natural Law and Positive Law

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This chapter explores the implications of the theory for the scope and limits of judicial authority. It is often supposed that belief in an objective moral law entails the proposition that judges should enjoy a more or less free wheeling authority to, in effect, nullify positive laws that they believe to be incompatible with it. Was it not the teaching of not only Augustine and Aquinas, but also of Cicero, Plato, and others figures of importance in the natural law tradition, that ‘an unjust law is not a law?’ Although it is true that positive law is to be derived from natural law, that does not by itself imply anything about the proper scope of judicial, as opposed to legislative and executive, power. The usurpation of political authority, particularly by judges, violates the moral-political ideal of the rule of law—an ideal central to natural law thinking regarding political morality.

Keywords: judicial authority; moral law; positive law; natural law; political morality

Chapter.  5293 words. 

Subjects: Jurisprudence and Philosophy of Law

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