ABSTRACT
How to Answer this Question Legal philosophers in the natural law tradition tend to take a very positive and upbeat view of law’s potential to further the common good of society. In the more theologically based versions of natural law such as represented by St Thomas Aquinas (1223-1273) human law is
part of the divine plan for mankind where the rulers use human law to concretise or instantiate the requirements of the God given natural law. Until natural law is determined ‘determinatio’ by human law we would not know what to do. The example of the rule of the road is a central example. There is nothing intrinsically valuable in driving on the left as opposed to the right and yet an authoritative human enactment is needed to settle the issue. Natural law thus, is not like a vending machine of legal statutes but takes takes a significant amount of human choice to yield positive human law. Natural law specifies that we should pay heed to physical safety but it requires human determination or choice to decide on whether we all drive on the left or the right or the speed limit is set at 60, 70 or 80 miles per hour on the motorway. Another very good example of the need for human determinatio is the selection of appropriate judicial punishment for criminal offenders. The natural law specifies that criminal offenders should be punished but judges must decide through choice the exact punishment. John Finnis argues at p 178 of Human Rights and Common Good (2011) that natural law dictates that a criminal offender should be punished to subject them to something (punishment) ‘contrary to their will’ and by this act of state punishment the advantage the offender gained by preferring their own will to that required by law is cancelled out. However the natural law leaves it to judicial choice what the exact punishment of an offender shall be. Finnis comments in Human Rights and Common Good (2011):
‘In human punishments, on the other hand, penalties must be chosen by the judge from a range. There is no “natural” measure of punishment, that is to say, no rationally determinable and uniquely appropriate penalty to fit the crime. Punishment is the (natural law) tradition’s stock example of the need for determinatio, a process of choosing freely from a range of reasonable options none of whichh Is simply rationally superior to the others.’
