Abstract
In this chapter, Matti Ilmari Niemi sets the stage for a novel approach to legal theory that captures the fundamental intuitions of natural law and positivist theories of law while fending off the core objections against them. Concerning natural law jurisprudence, Niemi argues that this approach properly captures that legal systems share many common values and protect human goods. However, mainstream natural law theorists are problematic because their principles either have a religious foundation or might appear as arbitrary. In turn, while legal positivism captures the factual dimensions of law, it fails to adequately capture the role that principles of morality and justice have in the interpretation of legal materials and the application of laws to specific cases. To overcome these issues, Niemi outlines the foundation of a view of law as an “expression of adopted justice.” In his view, this theory captures both the factual dimension of legal materials emphasized by positivists, while also describing the role of principles and substantive reasons in legal interpretation and the application of these materials.
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Notes
- 1.
See Bix (1996), p. 228.
- 2.
Aquinas (1943), first part of the second part, question 91, article 1.
- 3.
- 4.
- 5.
Aquinas (1943), first part of the second part, question 90, article 3.
- 6.
Finnis (1980), pp. 49, 402 and 403.
- 7.
- 8.
See Finnis (2002), p. 1.
- 9.
Finnis (1980), p. 24. In addition to natural and human (positive) law Thomas Aquinas defines and mentions two other laws: eternal and divine (divided into old and new). On the other hand, Aquinas seems to deny law in the fomes of sin. See Aquinas (1943), first part of the second part, question 91 and 93. According to Aquinas, the principles (precepts) of the natural law are many in themselves but are based on one common foundation and principle (the first principle). The first principle is “good is to be done and pursued, and evil is to be avoided”. Aquinas (1943), first part of the second part, question 94. Finnis mentions the fulfilment of all basic human goods as the master principle. Finnis (2002), p. 28.
- 10.
See, for instance, in the case of knowledge (“knowledge is good”) as a basic value and a practical principle. Finnis (1980), p. 64.
- 11.
- 12.
- 13.
Finnis (1980), p. 28.
- 14.
Aquinas (1943), first part of the second part, question 95, article 1. On the other hand, positive law also is deficient in relation to natural law. Positive law does not forbid all vicious acts, by the obligation of a precept, as neither does it prescribe all acts of virtue. Aquinas, first part of the second part, question 96, article 2 and 3.
According to Aquinas (1943), the natural law is a participation of the eternal law and therefore endures without change, owing to the unchangeableness and perfection of the Divine Reason, the Author of nature. But the reason of man is changeable and imperfect: wherefore his law is subject to change. The natural law contains certain universal precepts, which are everlasting: whereas human law contains certain particular precepts, according to various emergencies. Moreover, human law is rightly changed, in so far as such change is conducive to the common weal. Aquinas (1943), first part of the second part, question 97, articles 1 and 2.
- 15.
See Finnis (2002), pp. 30 and 34.
- 16.
Finnis (2002), p. 38.
- 17.
Aquinas (1943), first part of the second part, question 95, article 2. Here, Aquinas appeals to Saint Augustine.
- 18.
See Finnis (1980), p. 354; Bix (1996), p. 226; Finnis (2002), pp. 12 and 22.
The eternal and given principles of natural law appearing as practical reasoning and moral (good) reasons and as part of law and legal reasoning demonstrates the necessary relation between law and morals. As far as acceptable positive law and jurisdiction is concerned, the necessary relation is granted. On the other hand, sections of statutes, precedents or other judgements, that is, positive law or its applications can be immoral and unacceptable, that is, contrary to the principles. In this sense, paradoxically, there is no necessary relation between law and morals even according to natural law thinking. The first approach bears internal approach to law, the essential approach, obeying the principle ‘no ought from mere is’ and the second one the external approach to law describing certain decisions as “legal facts”. The latter one is not treated as a sufficient or intrinsic approach. See Finnis (2002), pp. 11, 14 and 16.
- 19.
Aquinas (1943), second part of the second part, question 57, article 1 and 2.
- 20.
Aquinas (1943), first part of the second part, question 94, articles 3, 4 and 5.
- 21.
Aquinas (1943), first part of the second part, question 94, article 4.
- 22.
Finnis (1980), p. 31.
- 23.
Bix (1996), p. 225.
- 24.
Finnis (1980), p. 33.
- 25.
- 26.
Finnis (1980), p. 103.
- 27.
Bix (1996), p. 223.
- 28.
- 29.
- 30.
See Finnis (2002), p. 28.
- 31.
According to Bix, “Natural law theory often has little if anything to do with ‘law’ as that term is conventionally used”. Bix (2002), p. 70. Bix’s sentence can be interpreted in the following way. Natural law theory is remote and irrelevant from the viewpoint of conventional legal knowledge, legal reasoning and legal doctrine. Instead, it can be treated as an ethical theory, and as such it is, nevertheless, relevant on the level of jurisprudence. This is why we are here discussing about natural law theory.
From this viewpoint, the description of natural law approach, introduced by Finnis, is understandable. According to him, natural law approach manifests an internal viewpoint. The dominant concern is judging for oneself what reasons are good reasons for adopting or rejecting specific kinds of option. Standards and norms of conduct are never constituted by the facts of convention, custom or consensus. Finnis (2002), p. 4.
- 32.
Coleman and Leiter (1996), p. 241.
- 33.
Kelsen (1970), pp. 73 and 79.
- 34.
Hart (1994), p. 201.
- 35.
- 36.
- 37.
Humanities and social sciences were under a great pressure assessed by the prevailing positivistic philosophy at the end of nineteenth and at the beginning of twentieth century. Kelsen, like many other theorists, felt obligated to defend legal doctrine as an acceptable branch of science. In addition, Kelsen found it necessary to transform legal doctrine into a branch of science acceptable from the viewpoint of positivistic philosophy. On the other hand, supporters of legal realism went ahead much further in this way.
- 38.
See e.g. Hart (1960), p. 145; Hart (1984a), p. 23; Hart (1994), p. 94. The influence of the mature Wittgenstein on Hart is obvious here. That is why the phrase ‘use in the language’ (Gebraucht in der Sprache) is important in this respect. An existing practice can be seen as the core of Wittgenstein’s idea. See Wittgenstein (1958), I, p. 43. At the level of legal issues, Hart interprets this approach as the thesis according to which a concept’s meaning (content) is determined by its use (as a social practice). For the dynamic character of positive law, see also Kelsen (1961), p. 399.
- 39.
- 40.
Both Kelsen and Hart define a crucial crossing point which belong to the world of ought (sollen) and to the world of is (sein). Kelsen defines legal rules as existing facts with the content of ought. Hart defines the rule of recognition as a norm and, at the same time, an existing fact of a society. See Kelsen (1970), p. 4.
- 41.
- 42.
Kelsen (1970), pp. 234 and 237.
- 43.
Hart (1994), p. 252.
- 44.
Finnis (1980), pp. 11, 12 and 19.
- 45.
Finnis (1980), pp. 13–15 and 18.
- 46.
Here Finnis appeals to Max Weber. See Finnis (1980), p. 16.
- 47.
Dworkin (1977), p. 22.
- 48.
Kelsen (1970), p. 4.
- 49.
See Dworkin (1977), pp. 24 and 35.
- 50.
See Dworkin (1977), p. 82.
- 51.
Here appears an additional difference compared with traditional and conventional natural law thinking. Following Aristotelian philosophy, it is presumed in natural law tradition that personal goods can be reduced to common good, that is, the goals of the societies of people. Therefore, there cannot be any genuine difference or tension between justified goods of individual people and the goals of their societies. However, the tension between rights belonging to people and common good, that is, policies of their societies is one of the main theses of contemporary legal thinking, emphasized, for instance, by Ronald Dworkin. See Aristotle (2002), book I, chapter 2, 1094b, Aquinas (1943), first part of the second part, question 91, article 2, Finnis (1980), p. 214 and Dworkin (1977), pp. 22, 82, 90.
- 52.
In practice, nevertheless, expressions of substantial justifications of decisions or interpretations are limited. Often, references to sections of statutes are enough. Easy or routine decisions, for instance, made by a policeman or another officer, are normally made without any references to principles, values or other substantial reasons. For practical reasons, it is not necessary. Lack of substantial justifications means here that the decision-maker considers the case easy and unproblematic. Even in these cases, however, the decision or interpretation has to be justified and, for instance, in a case of appeal or contest, one must be able to show the substantial justifications in the needful extent. In other words, they shall not prove to be problematic in the substantial inspection. Eventually, in the profound analysis, it must be possible to show the material justice of all decisions and interpretations.
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Niemi, M.I. (2021). Law as an Expression of Adopted Justice. In: Fabra-Zamora, J.L., Villa Rosas, G. (eds) Conceptual Jurisprudence. Law and Philosophy Library, vol 137. Springer, Cham. https://doi.org/10.1007/978-3-030-78803-2_9
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