Natural Law: An Introduction to Legal Philosophy

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

CHAPTER VI
THE IDEAL LAW

IT has been the purpose of this enquiry to show that the theory of natural law provided answers to many problems which still face the modern legal philosopher. No assessment of that theory would, however, be complete without taking into account what may well be said to constitute its most constant feature all through the ages: the assertion of the possibility of testing the validity of all laws by referring them to an ultimate measure, to an ideal law which can be known and appraised with an even greater measure of certainty than all existing legislation. Natural law is the outcome of man's quest for an absolute standard of justice. It is based upon a particular conception of the relationship between the ideal and the real. It is a dualist theory which presupposes a rift, though not necessarily a contrast, between what is and what ought to be.

This must not be taken to mean that the doctrine of natural law is at heart a revolutionary doctrine. Nothing indeed would be more remote from the truth. If natural law played a revo- lutionary part at certain epochs of Western history, it is equally true that, during most of its age-long development, the doctrine was limited to a mildly progressive, and at times to a frankly conservative function. The recognition of the existence of an ideal law did not necessarily imply that positive law should be overruled by it in cases of conflict. Natural law could serve as well to support revolutionary claims as to justify an existing legal order. It could even lead to the glorification of a particular system of law, as when Roman law, after its reception on the Continent as the "common" law of Europe, came to be considered as the ratio scripta, or as when Sir Edward Coke described the English Common law as "nothing else but reason".1 Justice Holmes humorously described this parti- cular outcome of natural law by remarking:

"It is not enough for the knight of romance that you agree that his lady is a very nice girl--if you do not admit that she is

____________________
1
The Institutes of the Laws of England, First Part ( 1628).

-95-

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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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