Ministers of the Law: A Natural Law Theory of Legal Authority

Ministers of the Law: A Natural Law Theory of Legal Authority

Ministers of the Law: A Natural Law Theory of Legal Authority

Ministers of the Law: A Natural Law Theory of Legal Authority

Synopsis

Jean Porter is John A. O'Brien Professor of Theology at the University of Notre Dame. Her other books include Natural and Divine Law and Nature as Reason.

Excerpt

Western legal systems typically operate in accordance with their own internal structures, which function more or less independently of other institutions or wider social processes. the independence of the law is maintained through a range of characteristic institutional forms, including formal procedures for legislation and adjudication and the construction of a detailed, comprehensive system of legal precepts. What is more, the independence of law is closely tied to widely shared social values — that legislation and adjudication should be carried out without regard to extra-legal considerations, that the validity of these processes does, or at any rate should depend on authority or correct procedure and not on considerations of probity or intrinsic reasonableness, and that adjudication should be guided by authoritative laws, and not exclusively by general considerations of morality or expediency.

The high degree of independence of law characteristic of Western legal systems has generated — or at least sharpened — distinctive problems pertaining to the authority and the normative force of the laws. Almost no one today would be prepared to argue (as some early legal positivists did) that the law rests on arbitrary commands, backed by the threat of force. Yet what is the alternative? Most legal scholars would not accept the contrary view that positive law depends on and closely reflects the dictates of a preconventional moral or natural law. Law depends for its proper functioning on norms of due process and proper procedure that sometimes require us to bracket wider moral considerations. What is more, the independence of the laws apparently presupposes that the legal force of enactments does not depend on their moral soundness. Yet how can we offer a credible normative justification for legal authority itself, together with criteria for evaluating and reforming particular laws, without drawing on extra-legal consid-

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