It has been over forty years since I graduated from law school, and as far as I can remember, the question “What is law?” has not been addressed in any of my mandatory courses. During law school, it was necessary to acquire a general sense of the nature and purpose of law, but this was never explicitly addressed. When we looked at cases and laws, we were left with the assumption that the law was really just an instrument that could be used by those in power to get what they wanted. This is called “pragmatic instrumentalism” and it is the perspective of law that is obviously or latent taught in most law schools. The explanation says that it is the laws of nature and the God of nature that are the parameters of this nation. If a society has a humanistic or human-centered worldview that has no real parameters except what man decides for reasons of utility or because it is pragmatic, the law becomes only a tool. Instead of being under the law, man claims to be the law. We no longer have the opinion that God and the law are supreme, but that man himself is the highest. This leads to a legal system that reflects society`s ever-changing values, rather than the idea that the law should set the standard of conduct to which citizens must adapt. 1 Timothy 1:8-11 says: But indifferent to the things themselves, the case is completely different. These become just or unjust duties or offenses, just or unjust, as the local legislature deems just, in order to promote the welfare of society and more effectively pursue the goals of civic life.
Thus, our own common law has stated that the property of the wife immediately after marriage becomes the property and right of the husband; and our legal law has declared that all monopolies are public offences: but this right and this offence have no basis in nature; but simply created by law for the needs of civil society. And sometimes, when the thing itself is born of natural law, the particular circumstances and the manner in which it is made become good or bad, as prescribed by the laws of the land. For example, in civil law obligations; Obedience to superiors is the doctrine of revealed and natural religion: but who these superiors should be, and under what circumstances or to what extent they should be obeyed, is a matter of human right. With respect to injury or crime, it should be left to our own legislator to decide when confiscating someone else`s livestock amounts to a crime of theft; and when it is a justified act, for example when a landlord rents it out in case of emergency. Blackstone, however, was very clear that all law depends on the law of nature and the law of revelation. He explained: “On these two foundations, the law of nature and the law of revelation, all human laws depend; That is, no human law should be endured that contradicts them. Thus, although there are areas of our civil society that leave both divine and natural law to human freedom, no law deemed necessary for the good of society can contradict the natural law or the law of revelation. As for the first, the declaratory part of domestic law, it depends not so much on the law of revelation or nature, but on the wisdom and will of the legislator. This lesson, which has been touched on slightly before, deserves a more detailed explanation.
The rights that God and nature have created, and are therefore called natural rights, such as life and liberty, do not need the help of human laws to be invested more effectively in every human being than they are; Nor do they receive additional force if they are declared inviolable by municipal laws. On the contrary, no human legislator has the power to shorten or destroy them unless the owner himself commits an act that amounts to decomposition. Even divine or natural duties (such as worshipping God, maintaining children, etc.) do not receive a harsher punishment if they are also declared duties under the law of the land. The case is the same as for crimes and misdemeanours prohibited by higher laws and therefore called mala in se, such as murder, theft and perjury; which cannot declare further turpitude illegal by the subordinate legislature. For this legislator acts in all these cases only, as we have already mentioned, in subordination to the great legislator by transcribing and publishing his commandments. So the declaratory part of municipal law, as a whole, has no force or effect with respect to actions that are natural and inherently good or bad. The second thesis, which is at the heart of the moral theory of natural law, is the assertion that moral norms are somehow derived or implied by the nature of the world and the nature of man. St. Thomas Aquinas, for example, identifies the rational nature of man as what defines the moral law: “The domination and measure of human actions is reason, which is the first principle of human action” (Thomas Aquinas, ST. I-II, Q.90, A.I). Since humans are rational beings by nature, it is morally appropriate that they behave in a manner consistent with their rational nature. Thus, Thomas Aquinas draws the moral law from the nature of man (i.e.
from the “natural law”). This view of the types and nature of law advocated by Blackstone was defended by our founding fathers and has continued in American jurisprudence for more than 100 years. James Kent, the black stone of American law, wrote in his Commentaries (1873): Like classical naturalism, Finnis` naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship, religion and aesthetic experience. Each of these goods, according to Finnis, has an intrinsic value in the sense that, in the face of human nature, it should be valued for itself and not just for another good to which it can contribute. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The purpose of moral principles, from this point of view, is to give an ethical structure to the pursuit of these fundamental goods; Moral principles allow us to choose between competing goods and to define what a person can legitimately do in pursuit of a fundamental good. Again, it must be emphasized that Finnis is careful to deny that there is a necessary moral test of legal validity: “My view of the nature and purpose of explanatory definitions of theoretical concepts would simply be misunderstood if one were to assume that my definition `excludes as non-laws` laws that are not or not fully fulfilled, one or another element of the definition” (Finnis, 1980, p. 278).