On the Dividing Line Between Natural Law Theory and Legal Positivism

This chapter considers the points of agreement and disagreement between natural law theory and legal positivism, with particular emphasis on John Finnis&s;s views of the "debate" and his contributions to it. Natural law theory discussions of human positive law tend to focus on moral obligations: what laws should a legislator pass, and when does a citizen have a moral obligation to obey the law. In a recent provocative essay, Finnis concedes that there were some basic truths to legal positivism, but most of them had been articulated, at least in rough form, hundreds of years ago by a theorist best known for his development of natural law theory: Thomas Aquinas. Finnis attributes to Aquinas the move "of taking human positive law as a subject of consideration in its own right, a topic readily identifiable and identified prior to any question about its relation to morality".