Although the core of classical and traditional theory of natural law is therefore not tainted by a „naturalistic error“ (Finnis 2018, 2.4.2), the non-practical knowledge of the facts in this theory counts in different ways. Knowing the factual possibility of acquiring (say) knowledge or losing or saving lives is a date (not really a premise) to understand that such a possibility is also an opportunity – that the realization of this possibility would be good for oneself and for others. Other relevant types of facts include facts about certain human radical abilities and their absence in other animals – these facts are the data for understanding the meaning and limits of the class (persons, persons) of „others“ to „good for oneself and for others“. Or, facts about the limited supply of resources and the limited strength of human will (the need for incentives, etc.) 1.5° the appropriation of resources to certain owners as a normal demand of justice towards non-owners and owners. The important things that [conceptual naturalism] is supposed to allow us (e.g., evaluate the law morally and determine our moral obligations in relation to the law) are actually complicated by breaking the distinction between morality and law. If we really want to look at law from a moral point of view, it can obscure the task if we consider that law and morality are essentially linked. Moral criticism and legal reform may be supported by initial moral skepticism of the law. But there is another type of theory of natural law that has to do with the relationship between morality and law. According to natural law theory, there is no clear separation between the concept of law and the concept of morality.
Although there are different versions of the theory of natural law, they all subscribe to the thesis that there are at least some laws that depend for their „authority“ not on a pre-existing human convention, but on the logical relationship in which they stand with moral norms. Otherwise, some norms are authoritative because of their moral content, even though there is no convention that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality overlap in some way is called the overlap thesis. 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. This need for a value-laden selection of terms and concepts to be used in a general theory of social realities such as law is evident in the work of Max Weber, the „worthless“ prophet of the social sciences. His representation of forms of government, for example, identifies three pure, central, and characteristic types (ideal types): charismatic, traditional, and rational (bureaucratic, legal). But the narratives of the first two types differ almost exclusively from the rational type, whose rationality is evident to Weber and his readers on the basis of their own knowledge of human goods (fundamental aspects of human well-being) and related practical truths. See Finnis 1985, pp.
170-72. Natural law theory, as already practiced in Aristotle`s ethics and politics, makes these theorist assessments open and explicit (unhidden and embarrassing) and subjects them to rational examination and debate. According to the legal theory of natural law, the authority of legal norms necessarily derives at least in part from considerations related to the moral value of those norms. There are a number of different types of legal theories of natural law that differ from each other in terms of the role that morality plays in determining the authority of legal norms. John Austin`s conceptual jurisprudence provides a number of necessary and sufficient conditions for the existence of law that distinguish law from lawlessness in all possible worlds. Classical theory of natural law, such as the theory of Thomas Aquinas, focuses on the intersection between moral and legal theories of natural law. Similarly, John Finnis` neo-naturalism is an evolution of classical theory of natural law. In contrast, Lon L. Fuller`s procedural naturalism is a rejection of the conceptual naturalistic idea that there are necessary material moral constraints on the content of the law. After all, Ronald Dworkin`s theory is a response and critique of legal positivism. All these theories support one or more fundamental principles of natural law theory and are important for its development and influence.
Dworkin believes that his theory of judicial obligation is a consequence of what he calls the rights thesis, according to which court decisions always uphold pre-existing rights: „Even if no fixed rules settle the case, one party may still have the right to win. It remains the duty of the judge, even in difficult cases, to discover what the rights of the parties are and not to invent new rights after the fact“ (Dworkin 1977, 81). Legal theorists who present or understand their theories as „positivist“ or as examples of „legal positivism“ take their theories as opposites, or at least clearly separated from it. Natural law theorists, on the other hand, have not conceived their theories in opposition to or even in contrast to legal positivism (contra Soper 1992, p. 2395). The term „positive law“ was first introduced by Thomas Aquinas in a wide philosophical dissemination, and theories of natural law of this kind share, or at least make no effort to deny many, or practically all, „positivist“ theses – except, of course, the simple thesis that theories of natural law are false. or the thesis that a norm is the content of an act of will. The theory of natural law accepts that law can be considered and pronounced both as a simple social fact of power and practice, and as a set of reasons for action that can be valid as reasons and therefore for the reasonable persons to whom they are addressed, and therefore often normative. This dual character of positive law is presupposed by the well-known slogan „Unjust laws are not laws“. Properly understood, this slogan shows why, unless it is based on a skeptical denial of the existence of reasonable grounds for action (a denial that can be set aside because its defense refutes itself), positivist opposition to theories of natural law is useless, that is, superfluous: what positivists typically consider to be realities that must be confirmed, are already confirmed by the theory of natural law. And what they typically consider illusions that need to be dispelled are not part of the theory of natural law.
But because the legal theories conceived by their authors as positivist largely dominate in the circles of those likely to read this article, it seems appropriate to refer to these theories in the hope of overcoming the misunderstandings that (while suggesting some clarifications and improvements to natural law theory) have given rise to unnecessary debate. Since natural law as an ethical theory can be understood as an extension of the scientific and rational study of how the world works, the laws of economics can be understood as natural laws of how economies „should“ function. In addition, the practice of applied economics must be based, at least implicitly, on certain ethical assumptions in which economic analysis is used to prescribe (or prohibit) public policy or how firms should behave: This article considers theories of natural law only as legal theories. This is not to say that legal theory can be properly identified and pursued independently of moral and political theory. Nor can it be denied that there are valid theories of natural law that deal far more with fundamental questions of ethics and political theory than with law or legal theory. An example of these broader and more fundamental theories is Thomas Aquinas` entry on moral, political, and legal philosophy. In this article, „theory of natural law“ should be understood as an abbreviation for theories of natural law, insofar as they refer to law and are theories of it or about it. This focus has the important side effect that many historically important differences between natural law theorists can be omitted, differences that relate more to the foundations of normativity than to the nature and functions („concept“) of positive law.