Natural law

Natural law
Natural law, or the law of nature , is a system of law that is determined by nature, and so
is universal. Classically, natural law refers to the use of reason to analyze human nature
— both social and personal — and deduce binding rules of moral behavior from it. Natural
law is often compared with the positive law of a given political community, society, or
state. In legal theory, on the other hand, the interpretation of positive law requires
some reference to natural law. On this understanding of natural law, natural law can be invoked
to criticize judicial decisions about what the law says but not to criticize the best
interpretation of the law itself. Some scholars use natural law synonymously with natural
justice or natural right , while others distinguish between natural law and natural right.
Although natural law is often conflated with common law, the two are distinct in that natural
law is a view that certain rights or values are inherent in or universally cognizable
by virtue of human reason or human nature, while common law is the legal tradition whereby
certain rights or values are legally cognizable by virtue of judicial recognition or articulation.
Natural law theories have, however, exercised a profound influence on the development of
English common law, and have featured greatly in the philosophies of Thomas Aquinas, Francisco
Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke,
Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection
between natural law and natural rights, it has been cited as a component in the United
States Declaration of Independence and the Constitution of the United States, as well
as in the Declaration of the Rights of Man and of the Citizen. Declarationism states
that the founding of the United States is based on Natural law.
History The use of natural law, in its various incarnations,
has varied widely through its history. There are a number of different theories of natural
law, differing from each other with respect to the role that morality plays in determining
the authority of legal norms. This article deals with its usages separately rather than
attempt to unify them into a single theory. Plato
Although Plato does not have an explicit theory of natural law (he almost never uses the phrase
natural law except in Gorgias 484 and Timaeus 83e), his concept of nature, according to
John Wild, contains some of the elements found in many natural law theories. According to
Plato we live in an orderly universe. At the basis of this orderly universe or nature are
the forms, most fundamentally the Form of the Good, which Plato describes as “the brightest
region of Being”. The Form of the Good is the cause of all things and when it is seen
it leads a person to act wisely. In the Symposium, the Good is closely identified with the Beautiful.
Also in the Symposium, Plato describes how the experience of the Beautiful by Socrates
enables him to resist the temptations of wealth and sex. In the Republic, the ideal community
is, “…a city which would be established in accordance with nature.”
Aristotle Greek philosophy emphasized the distinction
between “nature” (physis, φúσις) on the one hand and “law”, “custom”, or “convention”
(nomos, νóμος) on the other. What the law commanded varied from place to place,
but what was “by nature” should be the same everywhere. A “law of nature” would therefore
have had the flavor more of a paradox than something that obviously existed. Against
the conventionalism that the distinction between nature and custom could engender, Socrates
and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or
natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these,
Aristotle is often said to be the father of natural law.
Aristotle’s association with natural law may be due to the interpretation given to his
works by Thomas Aquinas. But whether Aquinas correctly read Aristotle is a disputed question.
According to some, Aquinas conflates the natural law and natural right, the latter of which
Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). According
to this interpretation, Aquinas’s influence was such as to affect a number of early translations
of these passages in an unfortunate manner, though more recent translations render them
more literally. Aristotle notes that natural justice is a species of political justice,
viz. the scheme of distributive and corrective justice that would be established under the
best political community; were this to take the form of law, this could be called a natural
law, though Aristotle does not discuss this and suggests in the Politics that the best
regime may not rule by law at all. The best evidence of Aristotle’s having thought
there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the
“particular” laws that each people has set up for itself, there is a “common” law that
is according to nature. Specifically, he quotes Sophocles and Empedocles:
Some critics believe that the context of this remark suggests only that Aristotle advised
that it could be rhetorically advantageous to appeal to such a law, especially when the
“particular” law of one’s own city was averse to the case being made, not that there actually
was such a law; Moreover, they claim that Aristotle considered two of the three candidates
for a universally valid, natural law provided in this passage to be wrong. Aristotle’s theoretical
paternity of the natural law tradition is consequently disputed.
Stoic natural law The development of this tradition of natural
justice into one of natural law is usually attributed to the Stoics. The rise of natural
law as a universal system coincided with the rise of large empires and kingdoms in the
Greek world. Whereas the “higher” law Aristotle suggested one could appeal to was emphatically
natural, in contradistinction to being the result of divine positive legislation, the
Stoic natural law was indifferent to the divine or natural source of the law: the Stoics asserted
the existence of a rational and purposeful order to the universe (a divine or eternal
law), and the means by which a rational being lived in accordance with this order was the
natural law, which spelled out action that accorded with virtue.
As the English historian A. J. Carlyle (1861–1943) notes:
Natural law first appeared among the stoics who believed that God is everywhere and in
everyone. Within humans is a “divine spark” which helps them to live in accordance with
nature. The stoics felt that there was a way in which the universe had been designed and
natural law helped us to harmonise with this. Cicero
Cicero wrote in his De Legibus that both justice and law derive their origin from what nature
has given to man, from what the human mind embraces, from the function of man, and from
what serves to unite humanity. For Cicero, natural law obliges us to contribute to the
general good of the larger society. The purpose of positive laws is to provide for “the safety
of citizens, the preservation of states, and the tranquility and happiness of human life.”
In this view, “wicked and unjust statutes” are “anything but ‘laws,'” because “in the
very definition of the term ‘law’ there inheres the idea and principle of choosing what is
just and true.” Law, for Cicero, “ought to be a reformer of vice and an incentive to
virtue.” Cicero expressed the view that “the virtues which we ought to cultivate, always
tend to our own happiness, and that the best means of promoting them consists in living
with men in that perfect union and charity which are cemented by mutual benefits.”
Cicero influenced the discussion of natural law for many centuries to come, up through
the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero,
who held “an extraordinary grip… upon the imagination of posterity” as “the medium for
the propagation of those ideas which informed the law and institutions of the empire.” Cicero’s
conception of natural law “found its way to later centuries notably through the writings
of Saint Isidore of Seville and the Decretum of Gratian.” Thomas Aquinas, in his summary
of medieval natural law, quoted Cicero’s statement that “nature” and “custom” were the sources
of a society’s laws. The Renaissance Florentine chancellor Leonardo
Bruni praised Cicero as the man “who carried philosophy from Greece to Italy, and nourished
it with the golden river of his eloquence.” The legal culture of Elizabethan England,
exemplified by Sir Edward Coke, was “steeped in Ciceronian rhetoric.” The Scottish moral
philosopher Francis Hutcheson, as a student at Glasgow, “was attracted most by Cicero,
for whom he always professed the greatest admiration.” More generally in eighteenth-century
Great Britain, Cicero’s name was a household word among educated people. Likewise, “in
the admiration of early Americans Cicero took pride of place as orator, political theorist,
stylist, and moralist.” The British polemicist Thomas Gordon “incorporated
Cicero into the radical ideological tradition that travelled from the mother country to
the colonies in the course of the eighteenth century and decisively shaped early American
political culture.” Cicero’s description of the immutable, eternal, and universal natural
law was quoted by Burlamaqui and later by the American revolutionary legal scholar James
Wilson. Cicero became John Adams’s “foremost model of public service, republican virtue,
and forensic eloquence.” Adams wrote of Cicero that “as all the ages of the world have not
produced a greater statesman and philosopher united in the same character, his authority
should have great weight.” Thomas Jefferson “first encountered Cicero as a schoolboy learning
Latin, and continued to read his letters and discourses as long as he lived. He admired
him as a patriot, valued his opinions as a moral philosopher, and there is little doubt
that he looked upon Cicero’s life, with his love of study and aristocratic country life,
as a model for his own.” Jefferson described Cicero as “the father of eloquence and philosophy.”
Some early Church Fathers, especially those in the West, sought to incorporate natural
law into Christianity. The most notable among these was Augustine of Hippo, who equated
natural law with man’s prelapsarian state; as such, a life according to nature was no
longer possible and men needed instead to seek salvation through the divine law and
grace of Jesus Christ. In the twelfth century, Gratian equated the
natural law with divine law. A century later, St. Thomas Aquinas in his Summa Theologica
I-II qq. 90–106, restored Natural Law to its independent state, asserting natural law
as the rational creature’s participation in the eternal law. Yet, since human reason could
not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law.
(See also Biblical law in Christianity.) Meanwhile, Aquinas taught that all human or positive
laws were to be judged by their conformity to the natural law. An unjust law is not a
law, in the full sense of the word. It retains merely the ‘appearance’ of law insofar as
it is duly constituted and enforced in the same way a just law is, but is itself a ‘perversion
of law.’ At this point, the natural law was not only used to pass judgment on the moral
worth of various laws, but also to determine what the law said in the first place. This
principle laid the seed for possible societal tension with reference to tyrants.
The natural law was inherently teleological and deontological in that although it is aimed
at goodness, it is entirely focused on the ethicalness of actions, rather than the consequence.
The specific content of the natural law was therefore determined by a conception of what
things constituted happiness, be they temporal satisfaction or salvation. The state, in being
bound by the natural law, was conceived as an institution directed at bringing its subjects
to true happiness. In the 16th century, the School of Salamanca
(Francisco Suárez, Francisco de Vitoria, etc.) further developed a philosophy of natural
law. After the Church of England broke from Rome, the English theologian Richard Hooker
adapted Thomistic notions of natural law to Anglicanism. There are five important principles:
to live, to learn, to reproduce, to worship God, and to live in an ordered society.
Those who see biblical support for the doctrine of natural law often point to Paul’s Epistle
to the Romans: “For when the Gentiles, which have not the law, do by nature the things
contained in the law, these, having not the law, are a law unto themselves: Which shew
the work of the law written in their hearts, their conscience also bearing witness, and
their thoughts the mean while accusing or else excusing one another. (Romans 2:14–15).
The intellectual historian A. J. Carlyle has commented on this passage, “There can be little
doubt that St Paul’s words imply some conception analogous to the ‘natural law’ in Cicero,
a law written in men’s hearts, recognized by man’s reason, a law distinct from the positive
law of any State, or from what St Paul recognized as the revealed law of God. It is in this
sense that St Paul’s words are taken by the Fathers of the fourth and fifth centuries
like St Hilary of Poitiers, St Ambrose, and St Augustine, and there seems no reason to
doubt the correctness of their interpretation.” English jurisprudence
Heinrich A. Rommen remarked upon “the tenacity with which the spirit of the English common
law retained the conceptions of natural law and equity which it had assimilated during
the Catholic Middle Ages, thanks especially to the influence of Henry de Bracton (d. 1268)
and Sir John Fortescue (d. cir. 1476).” Bracton’s translator notes that Bracton “was a trained
jurist with the principles and distinctions of Roman jurisprudence firmly in mind”; but
Bracton adapted such principles to English purposes rather than copying slavishly. In
particular, Bracton turned the imperial Roman maxim that “the will of the prince is law”
on its head, insisting that the king is under the law. The legal historian Charles F. Mullett
has noted Bracton’s “ethical definition of law, his recognition of justice, and finally
his devotion to natural rights.” Bracton considered justice to be the “fountain-head” from which
“all rights arise.” For his definition of justice, Bracton quoted the twelfth-century
Italian jurist Azo: “‘Justice is the constant and unfailing will to give to each his right.'”
Bracton’s work was the second legal treatise studied by the young apprentice lawyer Thomas
Jefferson. Fortescue stressed “the supreme importance
of the law of God and of nature” in works that “profoundly influenced the course of
legal development in the following centuries.” The legal scholar Ellis Sandoz has noted that
“the historically ancient and the ontologically higher law—eternal, divine, natural—are
woven together to compose a single harmonious texture in Fortescue’s account of English
law.” As the legal historian Norman Doe explains: “Fortescue follows the general pattern set
by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means
of law that this is accomplished. Fortescue’s definition of law (also found in Accursius
and Bracton), after all, was ‘a sacred sanction commanding what is virtuous and forbidding
the contrary.'” Fortescue cited Leonardo Bruni for his statement that “virtue alone produces
happiness.” Christopher St. Germain’s Doctor and Student
was a classic of English jurisprudence, and it was thoroughly annotated by Thomas Jefferson.
St. Germain informs his readers that English lawyers generally don’t use the phrase “law
of nature,” but rather use “reason” as the preferred synonym. Norman Doe notes that St.
Germain’s view “is essentially Thomist,” quoting Thomas Aquinas’s definition of law as “an
ordinance of reason made for the common good by him who has charge of the community, and
promulgated.” Sir Edward Coke was the preeminent jurist
of his time. Coke’s preeminence extended across the ocean: “For the American revolutionary
leaders, ‘law’ meant Sir Edward Coke’s custom and right reason.” Coke defined law as “perfect
reason, which commands those things that are proper and necessary and which prohibits contrary
things.” For Coke, human nature determined the purpose of law; and law was superior to
any one man’s reason or will. Coke’s discussion of natural law appears in his report of Calvin’s
Case (1608): “The law of nature is that which God at the time of creation of the nature
of man infused into his heart, for his preservation and direction.” In this case the judges found
that “the ligeance or faith of the subject is due unto the King by the law of nature:
secondly, that the law of nature is part of the law of England: thirdly, that the law
of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable.”
To support these findings, the assembled judges (as reported by Coke, who was one of them)
cited as authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue,
and St. Germain. As early as the thirteenth century, it was
held that “the law of nature…is the ground of all laws” and by the Chancellor and Judges
that “it is required by the law of nature that every person, before he can be punish’d,
ought to be present; and if absent by contumacy, he ought to be summoned and make default.”.
Further, in 1824, we find it held that “proceedings in our Courts are founded upon the law of
England, and that law is again founded upon the law of nature and the revealed law of
God. If the right sought to be enforced is inconsistent with either of these, the English
municipal courts cannot recognize it.” American jurisprudence
The U.S. Declaration of Independence states that it has become necessary for the people
of the United States to assume “the separate and equal station to which the Laws of Nature
and of Nature’s God entitle them”. Some early American lawyers and judges perceived natural
law as too tenuous, amorphous and evanescent a legal basis for grounding concrete rights
and governmental limitations. Natural law did, however, serve as authority for legal
claims and rights in some judicial decisions, legislative acts, and legal pronouncements.
Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation
and the common law, in turn, rests on a classical natural law foundation.
Islamic natural law Abū Rayhān al-Bīrūnī, an Islamic scholar
and polymath scientist, understood natural law as the survival of the fittest. He argued
that the antagonism between human beings can only be overcome through a divine law, which
he believed to have been sent through prophets. This is also the position of the Ashari school,
the largest school of Sunni theology. Averroes (Ibn Rushd), in his treatise on Justice and
Jihad and his commentary on Plato’s Republic, writes that the human mind can know of the
unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the
Islamic sharia or to protect religion, life, property, offspring, and reason. The concept
of natural law entered the mainstream of Western culture through his Aristotelian commentaries,
influencing the subsequent Averroist movement and the writings of Thomas Aquinas.
The Maturidi school, the second largest school of Sunni theology, posits the existence of
a form of natural law. Abu Mansur al-Maturidi stated that the human mind could know of the
existence of God and the major forms of ‘good’ and ‘evil’ without the help of revelation.
Al-Maturidi gives the example of stealing, which is known to be evil by reason alone
due to man’s working hard for his property. Killing, fornication, and drinking alcohol
were all ‘evils’ the human mind could know of according to al-Maturidi. The concept of
Istislah in Islamic law bears some similarities to the natural law tradition in the West,
as exemplified by Thomas Aquinas. However, whereas natural law deems good what is self-evidently
good, according as it tends towards the fulfilment of the person, istislah calls good whatever
is connected to one of five “basic goods”. Al-Ghazali abstracted these “basic goods”
from the legal precepts in the Qur’an and Sunnah: they are religion, life, reason, lineage
and property. Some add also “honour”. Ibn Qayyim Al-Jawziyya also posited that human
reason could discern between ‘great sins’ and good deeds.
Hobbes By the 17th Century, the Medieval teleological
view came under intense criticism from some quarters. Thomas Hobbes instead founded a
contractualist theory of legal positivism on what all men could agree upon: what they
sought (happiness) was subject to contention, but a broad consensus could form around what
they feared (violent death at the hands of another). The natural law was how a rational
human being, seeking to survive and prosper, would act. Natural law, therefore, was discovered
by considering humankind’s natural rights, whereas previously it could be said that natural
rights were discovered by considering the natural law. In Hobbes’ opinion, the only
way natural law could prevail was for men to submit to the commands of the sovereign.
Because the ultimate source of law now comes from the sovereign, and the sovereign’s decisions
need not be grounded in morality, legal positivism is born. Jeremy Bentham’s modifications on
legal positivism further developed the theory. As used by Thomas Hobbes in his treatises
Leviathan and De Cive, natural law is “a precept, or general rule, found out by reason, by which
a man is forbidden to do that which is destructive of his life, or takes away the means of preserving
the same; and to omit that by which he thinks it may best be preserved.”
According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV
of Leviathan (“of the first and second natural laws; and of contracts”); the others in chapter
XV (“of other laws of nature”). The first Law of nature is that every man
ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain
it, that he may seek and use all helps and advantages of war.
The second Law of nature is that a man be willing, when others are so too, as far forth,
as for peace, and defence of himself he shall think it necessary, to lay down this right
to all things; and be contented with so much liberty against other men, as he would allow
other men against himself. The third Law is that men perform their covenants
made. In this law of nature consisteth the fountain and original of justice… when a
covenant is made, then to break it is unjust and the definition of injustice is no other
than the not performance of covenant. And whatsoever is not unjust is just.
The fourth Law is that a man which receiveth benefit from another of mere grace, endeavour
that he which giveth it, have no reasonable cause to repent him of his good will. Breach
of this law is called ingratitude. The fifth Law is complaisance: that every
man strive to accommodate himself to the rest. The observers of this law may be called sociable;
the contrary, stubborn, insociable, froward, intractable.
The sixth Law is that upon caution of the future time, a man ought to pardon the offences
past of them that repenting, desire it. The seventh Law is that in revenges, men look
not at the greatness of the evil past, but the greatness of the good to follow.
The eighth Law is that no man by deed, word, countenance, or gesture, declare hatred or
contempt of another. The breach of which law is commonly called contumely.
The ninth Law is that every man acknowledge another for his equal by nature. The breach
of this precept is pride. The tenth law is that at the entrance into
the conditions of peace, no man require to reserve to himself any right, which he is
not content should be reserved to every one of the rest. The breach of this precept is
arrogance, and observers of the precept are called modest.
The eleventh law is that if a man be trusted to judge between man and man, that he deal
equally between them. The twelfth law is that such things as cannot
be divided, be enjoyed in common, if it can be; and if the quantity of the thing permit,
without stint; otherwise proportionably to the number of them that have right.
The thirteenth law is the entire right, or else…the first possession (in the case of
alternating use), of a thing that can neither be divided nor enjoyed in common should be
determined by lottery. The fourteenth law is that those things which
cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor;
and in some cases to the first born, as acquired by lot.
The fifteenth law is that all men that mediate peace be allowed safe conduct.
The sixteenth law is that they that are at controversie, submit their Right to the judgement
of an Arbitrator. The seventeenth law is that no man is a fit
Arbitrator in his own cause. The eighteenth law is that no man should serve
as a judge in a case if greater profit, or honour, or pleasure apparently ariseth out
of the victory of one party, than of the other. The nineteenth law is that in a disagreement
of fact, the judge should not give more weight to the testimony of one party than another,
and absent other evidence, should give credit to the testimony of other witnesses.
Hobbes’s philosophy includes a frontal assault on the founding principles of the earlier
natural legal tradition, disregarding the traditional association of virtue with happiness,
and likewise re-defining “law” to remove any notion of the promotion of the common good.
Hobbes has no use for Aristotle’s association of nature with human perfection, inverting
Aristotle’s use of the word “nature.” Hobbes posits a primitive, unconnected state of nature
in which men, having a “natural proclivity…to hurt each other” also have “a Right to every
thing, even to one anothers body”; and “nothing can be Unjust” in this “warre of every man
against every man” in which human life is “solitary, poore, nasty, brutish, and short.”
Rejecting Cicero’s view that men join in society primarily through “a certain social spirit
which nature has implanted in man,” Hobbes declares that men join in society simply for
the purpose of “getting themselves out from that miserable condition of Warre, which is
necessarily consequent…to the naturall Passions of men, when there is no visible Power to
keep them in awe.” As part of his campaign against the classical idea of natural human
sociability, Hobbes inverts that fundamental natural legal maxim, the Golden Rule. Hobbes’s
version is “Do not that to another, which thou wouldst not have done to thy selfe.”
Cumberland’s rebuttal of Hobbes The English cleric Richard Cumberland wrote
a lengthy and influential attack on Hobbes’s depiction of individual self-interest as the
essential feature of human motivation. Historian Knud Haakonssen has noted that in the eighteenth
century, Cumberland was commonly placed alongside Hugo Grotius and Samuel Pufendorf “in the
triumvirate of seventeenth-century founders of the ‘modern’ school of natural law.” The
eighteenth-century philosophers Shaftesbury and Hutcheson “were obviously inspired in
part by Cumberland.” Historian Jon Parkin likewise describes Cumberland’s work as “one
of the most important works of ethical and political theory of the seventeenth century.”
Parkin observes that much of Cumberland’s material “is derived from Roman Stoicism,
particularly from the work of Cicero, as “Cumberland deliberately cast his engagement with Hobbes
in the mould of Cicero’s debate between the Stoics, who believed that nature could provide
an objective morality, and Epicureans, who argued that morality was human, conventional
and self-interested.” In doing so, Cumberland de-emphasized the overlay of Christian dogma
(in particular, the doctrine of “original sin” and the corresponding presumption that
humans are incapable of “perfecting” themselves without divine intervention) that had accreted
to natural law in the Middle Ages. By way of contrast to Hobbes’s multiplicity
of laws, Cumberland states in the very first sentence of his Treatise of the Laws of Nature
that “all the Laws of Nature are reduc’d to that one, of Benevolence toward all Rationals.”
He later clarifies: “By the name Rationals I beg leave to understand, as well God as
Man; and I do it upon the Authority of Cicero.” Cumberland argues that the mature development
(“perfection”) of human nature involves the individual human willing and acting for the
common good. For Cumberland, human interdependence precludes Hobbes’s natural right of each individual
to wage war against all the rest for personal survival. However, Haakonssen warns against
reading Cumberland as a proponent of “enlightened self-interest.” Rather, the “proper moral
love of humanity” is “a disinterested love of God through love of humanity in ourselves
as well as others.” Cumberland concludes that actions “principally conducive to our Happiness”
are those that promote “the Honour and Glory of God” and also “Charity and Justice towards
men.” Cumberland emphasizes that desiring the well-being of our fellow humans is essential
to the “pursuit of our own Happiness.” He cites “reason” as the authority for his conclusion
that happiness consists in “the most extensive Benevolence,” but he also mentions as “Essential
Ingredients of Happiness” the “Benevolent Affections,” meaning “Love and Benevolence
towards others,” as well as “that Joy, which arises from their Happiness.”
Liberal natural law Liberal natural law grew out of the medieval
Christian natural law theories and out of Hobbes’ revision of natural law, sometimes
in an uneasy balance of the two. Hugo Grotius based his philosophy of international
law on natural law. In particular, his writings on freedom of the seas and just war theory
directly appealed to natural law. About natural law itself, he wrote that “even the will of
an omnipotent being cannot change or abrogate” natural law, which “would maintain its objective
validity even if we should assume the impossible, that there is no God or that he does not care
for human affairs.” (De iure belli ac pacis, Prolegomeni XI). This is the famous argument
etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
However, German church-historians Ernst Wolf and M. Elze disagreed and claimed that Grotius’
concept of natural law did have a theological basis. In Grotius’ view, the Old Testament
contained moral precepts (e.g. the Decalogue) which Christ confirmed and therefore were
still valid. Moreover, they were useful in explaining the content of natural law. Both
biblical revelation and natural law originated in God and could therefore not contradict
each other. In a similar way, Samuel Pufendorf gave natural
law a theological foundation and applied it to his concepts of government and international
law. John Locke incorporated natural law into many
of his theories and philosophy, especially in Two Treatises of Government. There is considerable
debate about whether his conception of natural law was more akin to that of Aquinas (filtered
through Richard Hooker) or Hobbes’ radical reinterpretation, though the effect of Locke’s
understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist
grounds. Locke turned Hobbes’ prescription around, saying that if the ruler went against
natural law and failed to protect “life, liberty, and property,” people could justifiably overthrow
the existing state and create a new one. While Locke spoke in the language of natural
law, the content of this law was by and large protective of natural rights, and it was this
language that later liberal thinkers preferred. Political philosopher Jeremy Waldron has pointed
out that Locke’s political thought was based on “a particular set of Protestant Christian
assumptions.” To Locke, the content of natural law was identical with biblical ethics as
laid down especially in the Decalogue, Christ’s teaching and exemplary life, and St. Paul’s
admonitions. Locke derived the concept of basic human equality, including the equality
of the sexes (“Adam and Eve”), from Genesis 1, 26–28, the starting-point of the theological
doctrine of Imago Dei. One of the consequences is that as all humans are created equally
free, governments need the consent of the governed. Thomas Jefferson, arguably echoing
Locke, appealed to unalienable rights in the Declaration of Independence, “We hold these
truths to be self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness.” The Lockean idea that governments need the consent of the governed was also
fundamental to the Declaration of Independence, as the American Revolutionaries used it as
justification for their separation from the British crown.
The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular
conception of natural law in the liberal tradition. Libertarian theorist Murray Rothbard argues
that “the very existence of a natural law discoverable by reason is a potentially powerful
threat to the status quo and a standing reproach to the reign of blindly traditional custom
or the arbitrary will of the State apparatus.” Ludwig von Mises states that he relaid the
general sociological and economic foundations of the liberal doctrine upon utilitarianism,
rather than natural law, but R.A. Gonce argues that “the reality of the argument constituting
his system overwhelms his denial.” David Gordon notes, “When most people speak of natural
law, what they have in mind is the contention that morality can be derived from human nature.
If human beings are rational animals of such-and-such a sort, then the moral virtues are…(filling
in the blanks is the difficult part).” However, a secular critique of the natural
law doctrine was stated by Pierre Charron in his De la sagesse (1601): “The sign of
a natural law must be the universal respect in which it is held, for if there was anything
that nature had truly commanded us to do, we would undoubtedly obey it universally:
not only would every nation respect it, but every individual. Instead there is nothing
in the world that is not subject to contradiction and dispute, nothing that is not rejected,
not just by one nation, but by many; equally, there is nothing that is strange and (in the
opinion of many) unnatural that is not approved in many countries, and authorized by their
customs.” Contemporary Christian understanding
The Roman Catholic Church holds the view of natural law provided by St. Thomas Aquinas,
particularly in his Summa Theologiae, and often as filtered through the School of Salamanca.
This view is also shared by some Protestant churches, and was delineated by C.S. Lewis
in his works Mere Christianity and The Abolition of Man.
The Catholic Church understands human beings to consist of body and mind, the physical
and the non-physical (or soul perhaps), and that the two are inextricably linked. Humans
are capable of discerning the difference between good and evil because they have a conscience.
There are many manifestations of the good that we can pursue. Some, like procreation,
are common to other animals, while others, like the pursuit of truth, are inclinations
peculiar to the capacities of human beings. Some contemporary Catholic theologians, such
as John Wijngaards, dispute the Magisterium’s interpretation of Natural Law as applied to
specific points of sexual ethics, such as in the areas of contraceptives and homosexual
unions. To know what is right, one must use one’s
reason and apply it to Aquinas’ precepts. This reason is believed to be embodied, in
its most abstract form, in the concept of a primary precept: “Good is to be sought,
evil avoided.” St. Thomas explains that: However, while the primary and immediate precepts
cannot be “blotted out”, the secondary precepts can be. Therefore, for a deontological ethical
theory they are open to a surprisingly large amount of interpretation and flexibility.
Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary
precept, for example: Drunkenness is wrong because it injures one’s
health, and worse, destroys one’s ability to reason, which is fundamental to man as
a rational animal (i.e., does not support self-preservation).
Theft is wrong because it destroys social relations, and man is by nature a social animal
(i.e., does not support the subsidiary precept of living in society).
Natural moral law is concerned with both exterior and interior acts, also known as action and
motive. Simply doing the right thing is not enough; to be truly moral one’s motive must
be right as well. For example, helping an old lady across the road (good exterior act)
to impress someone (bad interior act) is wrong. However, good intentions don’t always lead
to good actions. The motive must coincide with the cardinal or theological virtues.
Cardinal virtues are acquired through reason applied to nature; they are:
Prudence Justice
Temperance Fortitude
The theological virtues are: Faith
Hope Charity
According to Aquinas, to lack any of these virtues is to lack the ability to make a moral
choice. For example, consider a man who possesses the virtues of justice, prudence, and fortitude,
yet lacks temperance. Due to his lack of self-control and desire for pleasure, despite his good
intentions, he will find himself swaying from the moral path.
In contemporary jurisprudence In jurisprudence, natural law can refer to
the several doctrines: That just laws are immanent in nature; that
is, they can be “discovered” or “found” but not “created” by such things as a bill of
rights; That they can emerge by the natural process
of resolving conflicts, as embodied by the evolutionary process of the common law; or
That the meaning of law is such that its content cannot be determined except by reference to
moral principles. These meanings can either oppose or complement each other, although
they share the common trait that they rely on inherence as opposed to design in finding
just laws. Whereas legal positivism would say that a
law can be unjust without it being any less a law, a natural law jurisprudence would say
that there is something legally deficient about an unjust law. Legal interpretivism,
famously defended in the English-speaking world by Ronald Dworkin, claims to have a
position different from both natural law and positivism.
Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue
ethics that it is a live option for a first principles ethics theory in analytic philosophy.
The concept of natural law was very important in the development of the English common law.
In the struggles between Parliament and the monarch, Parliament often made reference to
the Fundamental Laws of England, which were at times said to embody natural law principles
since time immemorial and set limits on the power of the monarchy. According to William
Blackstone, however, natural law might be useful in determining the content of the common
law and in deciding cases of equity, but was not itself identical with the laws of England.
Nonetheless, the implication of natural law in the common law tradition has meant that
the great opponents of natural law and advocates of legal positivism, like Jeremy Bentham,
have also been staunch critics of the common law.
Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism).
The most prominent contemporary natural law jurist, Australian John Finnis, is based in
Oxford, but there are also Americans Germain Grisez, Robert P. George, and Canadian Joseph
Boyle. All have tried to construct a new version of natural law. The 19th-century anarchist
and legal theorist, Lysander Spooner, was also a figure in the expression of modern
natural law. “New Natural Law” as it is sometimes called,
originated with Grisez. It focuses on “basic human goods,” such as human life, knowledge,
and aesthetic experience, which are self-evidently and intrinsically worthwhile, and states that
these goods reveal themselves as being incommensurable with one another.
The tensions between the natural law and the positive law have played, and continue to
play a key role in the development of international law.

Maurice Vega

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