Taking norms seriously in new classical jusnaturalism: the need for positive law according to John Finnis and thomistic juridical realism

Abstract

In this article, I intend to show how the possible neglect of the due understanding of the nature of posi­tive law in the tradition of Thomistic natural-law theory of law can be over­come within this same tradition. I will first present John Finnis’s examination of the importance of positive law. Finn­is’s argument has some success in high­lighting the human need to take posi­tive law seriously, but it also seems to be partially exaggerated from the stand­point of the aforementioned tradition when he comes to the conclusion that all law must be contained in positive law. Next, I will analyze the relevant texts of Aquinas in which he develops the idea about the human needs under­lying the very being of positive law from the perspective of justice. Finally, I will analyze the basic elements for an exami­nation of the raison d’être of positive law from the perspective of the contempo­rary study of classical juridical realism.