Natural Law and Thomistic Juridical Realism
Prospects for a Dialogue with Contemporary Legal Theory
Imprint: Catholic University of America Press
This book proposes a rather novel legal-philosophical approach to understanding the intersection between law and morality. It does so by analyzing the conditions for the existence of a juridical domain of natural law from the perspective of the tradition of Thomistic juridical realism. In order to highlight the need to reconnect with this tradition in the context of contemporary legal philosophy, the book presents various other recent jurisprudential positions regarding the overlap between law and morality. While most authors either exclude a conceptual necessity for the inclusion of moral principles in the nature of law or refer to the purely moral status of natural law at the foundations of the legal phenomenon, the book seeks to elucidate the essential properties of the juridical status of natural law. In order to establish the juridicity of natural law, the book explores the relevant arguments of Thomas Aquinas and some of his main commentators on this issue, above all Michel Villey and Javier Hervada. It establishes that Thomistic juridical realism observes the juridical phenomenon not only from the perspective of legal norms or subjective individual rights, but also from the perspective of the primary meaning of the concept of right (ius), namely, the just thing itself as the object of justice. In this perspective, natural rights already possess a fully juridical status and can be described as natural juridical goods. In addition, from the viewpoint of Thomistic juridical realism, we can identify certain natural norms or principles of justice as the juridical title of these rights or goods. The book includes an assessment of the prospective points of dialogue with the other trends in Thomistic legal philosophy as well as with various accounts of the nature of law in contemporary legal theory.
"A significant contribution to scholarship. Popovic develops a Thomistic theory of juridicial natural law as an answer to the contemporary question of the law-morality intersection, thus bringing Thomistic ideas directly into conversation with contemporary thought."~Peter Koritansky, author of Thomas Aquinas and the Philosophy of Punishment (CUA Press)
"Petar Popović’s lucid and learned study opens a new window onto St. Thomas Aquinas’s natural law teaching, bringing to light unexpected implications for legal theory generally. That Thomas lays a moral basis for the juridical order is widely recognized. That his teaching has a truly juridical dimension of its own, however, is seldom even noticed, let alone exploited. With texts in hand, Dr. Popović carefully delineates that dimension and unfolds its significance. The book is a must study for anyone interested in the relation between natural law and positive law."~Stephen L. Brock, University of Chicago, Pontifical University of the Holy Cross, Rome
"Petar Popović's book is important if only for its introduction to Anglophone readers of the work of Michel Villey and Javier Hervada. But it does much more. Popović has begun a conversation between the classical juridical realists and contemporary Anglo-American philosophical jurisprudence, drawing on a tradition with roots in medieval Aristotelianism and the ius commune. The result is a fresh and fascinating perspective on familiar questions about the relationship between morality and positive law, which also promises to illuminate other seemingly familiar questions in legal theory"~V. Bradley Lewis, The Catholic University of America
"Understanding the relationship between positive law and morality is a pressing and perennial question in general jurisprudence. Popović offers a provocative intervention in this conversation. He argues that contemporary theorists, including natural law scholars, misunderstand this relationship by failing to understand the juridical character of the natural law. Drawing on Aristotle, Roman law, Aquinas, and synthesizing for English speakers the work of Thomistic interpreters Hervada and Villey, Popović presents a careful, serious, and lucid argument that contemporary philosophers must grasp the juridical character of the natural law to offer a satisfying account of its relationship with positive law. The book brings classical learning into conversation with current jurisprudence in a way that will engage a wide range of scholars interested in the natural law tradition."~Jeffrey Pojanowski, Notre Dame Law School, editor of The American Journal of Jurisprudence