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If we follow the unequivocal and salutary example of Aquinas, we will make no distinction between lex and ius when the latter term signifies what it signifies in, for example, the phrases ius civile or ius naturale – phrases used by St Thomas entirely synonymously with lex civilis and lex naturalis respectively.7 Hence ―jurisprudence‖ and ―philosophy of law‖ can appropriately be used entirely synonymously, as is usual in English-speaking countries. Of course, both etymological elements in the word ―jurisprudence‖ have some gravitational pull (far from irresistible) towards the relatively more particularized, less universal and hence less philosophical.8 But just as Aquinas treats legis positio as a name not only for the highly particular business of making laws but also for the supreme level of politica, political philosophy/theory, and treats politica as on the same level as philosophy with philosophia moralis – indeed, as being a branch or kind, supremely dignified, of philosophia moralis9 – so too we can rightly take jurisprudence and philosophy of law alike as ranging from the exploration of specific juridical techniques (critically investigating these techniques‘ rational foundations in considerations of human flourishing and moral right) all the way up to the highest and widest principles and other considerations of moral and political theory.
Since ―natural law‖, in the present context, has the same reference as ―the normative principles and standards of ethics and politics‖ (or ―normative political philosophy‖), everything said so far in this article is a piece of natural law theory. That theory autonomously yields, as one of its intrinsic elements, the thesis that human societies need positive law, and an account of many needed features of law, legal systems, and the Rule of Law. Natural law theory, in this context, is just another name for legal philosophy. It is fully positivist, if by that we mean that, properly pursued, it yields a completely sufficient account of the concept and characteristic institutions and sources of positive law and the Rule of Law. There is no proper place for a positivism outside natural law theory.10
The (legal) positivism that is self-conceived as somehow in opposition to natural law theory is (just in so far as it both maintains that self-identification and includes theses differing from those of natural law theory)11 a set of more or less confused and arbitrarily truncated theories, conceived in some instances on the basis of grave misunderstanding12 of the tradition of natural law theory and of some of its theorems, and in other instances as simply the expression of moral scepticism (denial that there are any true propositions about human good and moral right) – and in some instances again, such as Kelsen, on both bases. Neither basis is defensible. Misunderstanding should be abandoned, by attending to evidence and reading classic texts with some care and attention. Scepticism about practical truth may seem at first to be a more worthy basis for legal positivism. But, leaving to one side the responses that can rightly be made to sceptical theses and arguments in ethics (or ―meta-ethics‖),13 it should be acknowledged that if scepticism is correct, there is no philosophy of law. At most there can be historical accounts (tracking competent legal practitioners‘ accounts) of particular communities‘ accepted or imposed normative systems self-interpreted as legal, and of systems analogous to those. The history or set of histories might be eked out by some sort of statistics concerning frequency or ―typicality‖. But if nothing true can be said about human good, there is nothing to be thought or said about normativity, authority, obligation, validity and similar concepts, all of which get their sense on the presupposition that practical reason can distinguish between true and false, good reason and lack of reason, and so forth.
