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International Comparative Jurisprudence 2020 Volume 6 Issue 1
ISSN 2351-6674 (online) DOI: http://dx.doi.org/10.13165/j.icj.2020.06.001
International Comparative Jurisprudence
ON THE NATURE OF LAW: THE RELEVANCE OF DEONTOLOGICAL NATURAL LAW
PERSPECTIVE IN MODERN TIMES1
Arletta Gorecka2
University of Strathclyde, Glasgow, United Kingdom
E-mail: arletta.voreckaastrarh.ac.uk
Received: 3 March 2020; accepted: 19 May 2020
DOI: htw://dx.doi.or/1O.13165/i.ici.2020.06.OO1
Abstract. This paper considers a perspective of the deontological approach to natural law as constituting a satisfactory opinion of the nature
of law, and analyses the main features of natural law theory providing that the law and morality are interlinked. It is impractical to decide
a case entirely upon codified legal rules, as judges have a duty to apply the moral value of the system. The paper acknowledges that the
concept of law is prominent in the moral values of society, as if the law is exceptionally unjust it should not be applied.
Keywords: natural law, deontology, Fuller-Hart, social contract, morality
Introduction
Law is concerned with maintaining a basic order of people's conduct and affairs, laying down standards on how
humans ought to behave (Veitch et al., 2007, p. 7). Lord Steyn said that '[the court] must act like a court of law
and not like a court of morals. (...) What may count in a situation of difficulty and uncertainty is not the subjective
view of the judge but what he reasonably believes that the ordinary citizen would regard as right' (McFarlane and
Another v. Tayside Health Board [1999], per Lord Steyn at pp. 977-978). Thus, there has been an ongoing debate
in jurisprudence as to what constitutes the best character of the nature of law (Veitchet et al., 2007, p. 123). The
definition of law has been the subject of many debates (Salmond & Fitzgerald, 1966, p. 12), and its notion is
surrounded by philosophical perplexities (Hart, 1963, p. 6). Thus, the law can be regarded as a basic concept of
jurisprudence (King, 1963); with the various theories of law advanced to what the nature of the law might be; so
building up a complete and rounded picture of the subject (Salmond & Fitzgerald, 1966, p. 13). Some authors
argue that there is a lack of existing connection between law and morality (legal positivism; Black, 1979), whereas
others suggest that there is an interplay between law and morality (natural law; Strauss, 1968, p. 137). Presently,
natural law appears to be an important weapon of political and legal ideology (Freeman, 2014, p. 75), and it is
often argued that natural law forms the basis of what the law is.
This article aims to present a discussion of the deontological approach to natural law as being the coherent
approach as to the nature of law, as we have witnessed an upturn of the theory of natural law, with an increased
modern natural law scholarship. Natural law indeed aims at analysing the essence of moral theory, especially in
times of crisis. The notion of natural law could be claimed as being as old as philosophy itself,3 and it is presumed
that its importance is still witnessed in the 21st century. The author assumes that natural law is normatively and
1 The author would like to thank Dr Oles Andriychuk for his helpful comments and support. The usual disclaimer applies.
2 PhD Candidate, University of Strathclyde, Glasgow, United Kingdom.
s Natural law was first invoked by Stoicism which, in an era of a deep political transformation, provided people with a
reference to morality.](ViewImageLocal?handle=hein.journals/icjuris6&div=1&collection=&method=preview&ext=.png&size=3)
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