Date of Award
Doctor of Philosophy
This dissertation proposes to examine the legal positivist theory of legal obligation from the critical standpoint of Thomistic natural law theory.;The difficulty with legal positivism, as the natural lawyer sees it, resides in its inability to present a satisfactory explanation of the normativity of law. In the positivism of Austin and Kelsen there is a propensity to conflate law with force, with the consequence that their positivist theories of law neglect to analyze adequately the distinctive 'ought' character of ascriptions of legal obligation.;To be sure, some contemporary legal thinkers have acknowledged these points. Thus Ronald Dworkin, perhaps the most important of these thinkers, suggests, on non-natural law grounds, that if the law is understood to contain moral principles, the problems that bedevil the positivist position on legal obligation can be overcome. However, I argue that Dworkin's understanding of the role of principles in the law concedes too much to the positivist case.;In view of this, Thomistic natural law theory provides a more acceptable internalist alternative to positivism than that proposed by Dworkin. The natural lawyer contends that there is a conceptual connection between human law and the common good. But the conceptual connection he has in mind here is not the analytic relation of meanings that is found in definitions. Rather, he holds that the exercise of what he terms 'civic prudence' in the act of law-making yields a 'constitutive' means-end relation between the law and the common good. This dissertation will spell-out the precise character of this relation as well as its role in establishing the natural lawyer's claim that legal obligation entails moral obligation to obey the law.;The practical import of this theory of legal obligation is that, in the view of the natural lawyer, there is no obligation, legal or moral, to obey an unjust law qua unjust. Moreover, he argues that the moral concerns which underlie the legal order also provide a justification for resisting unjust laws. I argue, then, that the natural lawyer's view of law can be extended to cover cases where civil disobedience may be required.;Accordingly, the Thomistic natural law theory of legal obligation is attentive to the issues raised by the acknowledgement of the normativity of law, particularly as they pertain to the relation of the individual citizen vis-a-vis the law. (Abstract shortened with permission of author.)
Killoran, John Brendan, "A Natural Law Perspective On The Legal Positivist Theory Of Legal Obligation" (1987). Digitized Theses. 1624.