Document Type

Article

Publication Title

Notre Dame Law Review

Abstract

"Lex iniusta non est lex." John Finnis reminds us, at the end of Natural Law and Natural Rights, that the central tradition of natural law theory did not formulate its thesis about the relation between law and justice by saying things like "an unjust edict cannot be law" or "a morally iniquitous command cannot be law." Instead, says Finnis, "the tradition... has affirmed that unjust LAWS are not law." He offers several elaborate explanations-and, I should say at once, they are helpful and convincing explanations-of why this paradox is not a contradiction. His explanations appeal to the distinction between normative, descriptive, and detached uses of terms such as "law," as well as to the further distinction, central to Finnis's jurisprudence, between the focal meaning and the secondary meanings of such terms. Is natural law theory committed to saying something like that about every law which is unjust? Or, may natural law jurisprudence acknowledge that some unjust laws are-in spite of their injustice - laws in the fullest sense (using "law" in the focal, non-detached, first-person, practical, and normative sense, not just in the hesitant, detached, or descriptive senses)? Finnis, I think, believes the answer is "no." (I shall explain why in a moment, though again I want to emphasize immediately that what he says is much more careful and qualified than what is said by most people addressing the lex iniusta doctrine.) I suspect he is wrong about this. The aim of this Essay is to explicate the possibility I have just outlined-that natural law jurisprudence should acknowledge that some unjust laws are laws in the fullest sense in spite of their injustice.

First Page

1829

Volume

75

Publication Date

2000

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