Natural Law: An Introduction to Legal Philosophy

By A. P. d'entrèves | Go to book overview

CHAPTER IV
THE ESSENCE OF LAW

ANOTHER and different approach to our subject can now be suggested. Enough evidence has been provided of the historical function of natural law. The time has come to assess its general value. That value, if any, can consist only in a specific contribution to the knowledge of law and to the understanding of legal phenomena.

The doctrine of natural law was closely associated with historical development. But some of its features are constant. The theorists of natural law were faced with much the same problems as confront the modern legal philosopher. The first of these problems is that of the essence of law. It is a problem of form or of structure. It is a problem of definition. "Is law an act of the will or of the intellect?" Is the existence of a superior and an inferior the necessary pattern of legal experience? The question may be put in these or in other terms, but it is still controversial. The old discussion about the nature of ius--whether ius quia iustum or ius quia iussum1-- was more than an etymological quibble.

Natural law provided a definite answer. It stands or falls with a particular notion of law. The very condition of its existence is that the identification of law and command be overcome or abandoned. Its logical outcome is an extension of the concept of law which is much more far-reaching and exacting than is at first realized. This is nowhere more apparent than in the many challenges which natural law had to meet in its age-long development. We must begin by examining these challenges. The grouping which is adopted in this chapter should not be taken to imply a chronological succession. It is rather a description of types or modes of thought which have recurred at different epochs. We are here concerned only with what they have in common.

____________________
1
This is a play upon words, iustum meaning "just," and iussum "comnmnded."

-64-

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Natural Law: An Introduction to Legal Philosophy
Table of contents

Table of contents

  • Title Page 1
  • Contents 3
  • Foreword 5
  • Introduction 7
  • Chapter I - A Universal System of Laws 17
  • Chapter II - A Rational Foundation of Ethics 33
  • Chapter III - A Theory of Natural Rights 48
  • Chapter IV - The Essence of Law 64
  • Chapter V - Law and Morals 80
  • Chapter VI - The Ideal Law 95
  • Conclusion 113
  • Index 123
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