5 - Ideas of Justice: Natural and Human

Summary

Although the distinction between natural and human justice – phusis and nomos – structures the foundations of Western political thought, the language and discourse of natural justice, law, right, and so forth have fallen into fairly profound disrepute. Indeed, that disrepute can be extended to the last two or three centuries if we can agree that the Western “discovery” of variation in religious and moral notions across time and place gave rise to a certain skepticism concerning the idea of “natural” or divine justice. Nonetheless, over the last fifty years moral realism and natural law theory have made a comeback in the legal academy. For instance, in the late 1950s, legal positivist H. L. A. Hart entered into a debate with Lon Fuller in the Harvard Law Review, a debate that was eventually joined by Ronald Dworkin concerning the extent to which there is necessarily some kind of “natural” moral content in law. This debate in turn gave rise to an important Thomistic rejoinder – from the likes of Jacques Maritain, Yves Simon, Henry Veatch inter alia – concerning the nature of the relationship between so-called natural law and a lawgiver. Notably, debates about natural law have not been limited to academia. The Natural Law Party has branches in the United States, Canada, Great Britain, Israel, New Zealand, and Pakistan. Thus, although nomos seemed to have won out in a historical contest over phusis, the ideas of natural justice and natural law are far from finished.