But a criterion of actions is thereby established. Some actions correspond to nature, and hence are naturally good; others are repugnant to nature, and hence are naturally bad. This settled, Aristotle advances to the distinction between what is naturally just and what is legally just. Both are objects of justice. Justice, however, taken in the narrower sense (for in the wider sense the virtuous man is the just man purely and simply) and distinguished from morality, is directed to the other, to the fellow man, whether as equal (commutative justice) or as fellow member of the comprehensive polis-community (distributive and, in the behavior of the member with regard to the whole, legal justice). It finds expression in the natural law and in the positive law. The latter originates in the will of the lawmaker or in an act of an assembly; the natural law has its source in the essence of the just, in nature. That which is naturally right is therefore unalterable. It has everywhere the same force, quite apart from any positive law that may embody it. Statute or positive law varies with every people and at different times. Yet the natural law does not dwell in a region beyond the positive law. The natural law has to be realized in the positive law since the latter is the application of the universal idea of justice to the motley manifold of life. The immutable idea of right dwells in the changing positive law. All positive law is the more or less successful attempt to realize the natural law. For this reason the natural law, however imperfect may be its realization in the positive law, always retains its binding force. Natural law, i.e., the idea and purpose of law as such, has to be realized in every legal system. The natural law is thus the meaning of the positive law, its purpose and its ethically grounded norm.
Recognition of the fact that no system of positive law is perfect brought Aristotle to the principle of equity. The law is a general norm, but the actual matters which it has to regulate issue from the diversity of practical life. Of necessity the positive law exhibits imperfections, it does not fit all cases. Equity thereupon requires that the individual case gets it right, i.e., that the imperfection of the formal law be overcome by means of material justice, through the content of the natural law. Thus Aristotle already viewed the judge’s function of filling up the gaps in the law as an attempt to apply the natural law—if indeed the positive law is rightly to bear the name of law at all. The gaps are consequently the gateways through which the natural law continually comes into play. In such cases the judge has to decide in accordance with the norm which the true lawgiver would himself apply if her were present; the true lawgiver of course is always assumed to will what is just. This is a celebrated formula which in these very words or in the form, “which he [the judge] would lay down as lawmaker,” still found its way into the great codifications of civil law undertaken in the nineteenth and twentieth centuries (e.g., the Austrian and Swiss Civil Codes).
~Heinrich A. Rommen: from The Natural Law, A Study in the legal and Social History of Philosophy.
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