Title: The Development and Significance of Natural Law Theory
Natural law has a remarkable history which has assisted in developing the recent “revival of interest in natural law theory within mainstream legal, political and moral theory.”1 Profound significance is given to the concept of natural law in jurisprudential studies and therefore this article will address the significance and the development of natural law. Natural Law theory,
“Is a mode of thinking systematically about the connections between the cosmic order, morality, and law, which, in one form or another, has been around for thousands of years.”2
This essay will concentrate on the contemporary works on natural law theory, which was conceived as the ultimate measure of right and wrong. However, in order to discuss this field, one must acknowledge and comprehend the origin and tradition of the natural law theory, which has given rise to the modern concept. Natural law theorists regard the expression ‘natural law’ to refer to a
“Set of universal prescriptions whose prescriptive force is a function of the rationality which all human beings share in virtue of their common humanity.”3
Natural law has been present from the time of the Greek civilisation, meaning that the definition of natural law may prove some difficulty because around 2,500 years of history of this subject will result in the definition of natural law to alter and not remain static, thus causing some ambiguity. The first expressions of natural law theory in philosophical terms could be derived as early as the sixth century B.C. where “human laws were described as having their place in order of things by virtue of the power of fate which controls everything.”4 Professor Crowe has remarked that “the natural law, as an idea, is almost as old as philosophy itself.”5 The content of natural law may fluctuate with social differences as time progresses. D’Entrèves provides that “many of the ambiguities of the concept of natural law must be ascribed to the ambiguity of the concept of nature that underlies it.”6 Natural law recognises that there are “objective moral principles which depend upon the nature of the universe and which can be discovered by reason.”7 Distinctions will become apparent from the medieval and modern notions of natural law because this area of jurisprudence involves a wide scope of law with different theorists applying their own judgments. Even though natural law theorists may apply the principles of natural law correctly it does not mean that they must conform to a community of shared values.8 Contemporary natural law theorists acknowledge that their ideas are rooted in the works of St. Aquinas and other consequent scholars. Hitherto, the contemporary natural law theorists are not merely restating a completed moral system; instead they are developing the natural law tradition to address the challenges from other ethical approaches.9 The various versions of the natural law doctrine differ momentously in their detail and their philosophical basis; nonetheless to express a common core of the theory, then it would be that natural law “basic principles of morals and legislation are, in some sense or other objective, accessible to reason and based on human nature.”10 Correspondingly, St. Thomas Aquinas points out that defining the term ‘natural’ causes complicatedness, although it cannot remain ambiguous, the term must be given a special technical meaning and not regard ‘natural’ as merely what is usual,good and familiar.11 As later discussions will reveal, some theorist argue that there is an objective standard of ethics that underlies all valid law, or that there are universal values that all decent societies adhere to.
Sir Ernst Barker provides that the
“Origin of the idea of natural law may be ascribed to an old indefeasible movement of the human mind which impels it toward the notion of an eternal and immutable justice”12.
Furthermore, he attributes this justice from the being of God together with the reason of man, which is based on principles. Natural law has developed and can be addressed in terms of either a moral / political theory and as a legal / social theory. One principle obstacle natural law faces is that of whether “moral propositions can be derived from propositions of fact, whether an ‘ought’ can be deduced from an ‘is’.”13 The separation of ‘is’ and ‘ought’ emphasised by Hume14 is seen by positivists as a fundamental flaw in classical naturalist arguments. Some natural law theorists perceive that practical including moral knowledge of human nature can be drawn from such fields of: metaphysics, anthropology, sociology, political science, history and theology.15 Moreover, Hume argues that “one cannot derive an evaluative or prescriptive conclusion from purely descriptive or empirical premises.”16 Therefore this is in contradiction to notion of natural law theory which aims to derive moral prescriptions from statements about the nature of human beings or the nature of the world.17 Theorists such as Grisez, Finnis and Boyle reject the non-cognitivist claim that “since norms cannot be deduced from facts they must be projections of our feelings and desires rather than objects of our reason.”18 However, most prominently Fuller19 and his student Dworkin20 argued that “one cannot conceptually separate law and morality, that one cannot separate what law is from it ought to be.”21 According to naturalism, “law is to be identified by reference to moral or ethical, as well as formal, criteria of identification”22. However, Finnis23 disagrees and argues that
“Normative conclusions of natural law are not based on the observation of human or any other nature but rather a reflective grasp of what is self-evidently good for human beings.”24
Natural lawyers must demonstrate that it is able to derive normative propositions from actual statements. Natural laws are basic and fundamental to human nature and are discoverable by human reason without reference to specific legislative enactments or judicial decisions. Natural law jurisprudence asserts that fundamentally the law is the authoritative promulgation of dictates of practical reason.
Plato25, Aristotle26, students of Socrates27 and along with Cicero28; supported in developing the foundations of natural law theory, which was to be given a systematic structure by Saint Thomas Aquinas29, which will be explored later. Cicero defined true natural law as “right reason in agreement with nature”.30 Such Roman orators were influenced by Stoicism, under which the concept of natural law theory received its most influential formulation. The Stoics believed that the fundamental moral principles that underlie all the legal systems of different nations were reducible to the dictates of natural law.31 Natural law and its connection with God makes one realise the reason for laws and whether it is successful or not in achieving its aims. Thus, the Stoics argued that reason governs the universe and man. Stoic’s school of thought was that it was man’s moral duty to live naturally according to reason, that of divine reason not all individual reason.32
Classical naturalism was significantly developed by the Greeks of whom Plato and Aristotle provided the greatest of contributions to the doctrines of the law of nature to this day. Plato and Aristotle promptly revived natural law, if not in name; then certainly in essence and with the Stoics natural law really came into full flower.33 These theorists set the path for the Christian thinkers of the Middle Ages, although natural law doctrines initially experienced questionable status at the time, “only to receive eventually their most definitive formulation and justification at the hands of St. Thomas Aquinas in the thirteenth century.”34 St. Aquinas introduced the religious element to the natural law doctrine by identifying the God of the Christian religion as the source of the power of divine reason.35 St. Aquinas was considerably influential in this area of jurisprudence, as will become apparent in later discussions below.
Natural law theories of jurisprudence perceives the notion that law is, or should be, derived from some higher principle than mere social good. This higher principle varies from one theory to another. For several theorists, of course, the higher principle is the will of God; this view can be traced back to the forerunners of natural law theory. Although, this notion that law should be developed under the guidance of some higher principle had lead to criticism from theorists like Austin36 who was a particularly vociferous critic of natural law.37 The importance of natural law was expressed by Pufendorf38 when he stated that “natural law is binding because it is willed by God.”39 Furthermore this natural law is viewed as being rationally good, which is the reason behind why God has willed such a law. This position was given support by natural lawyers like Suárez40 and Grotius41 during the medieval period and through the Renaissance. In contrast, Spinoza42 in his Theological-Political Treatise “objected to the idea of God as a law-giver on the basis that laws are commands and were the omnipotent Being to command something, men could not but obey.”43 According to such natural lawyers, positive law should embody natural law tradition. Natural law has a long running primary dispute with other approaches to explaining or understanding society and law; of which the prominent example being the legal positivist theory. Actually, “much of modern natural law theory has developed primarily in reaction to legal positivism”.44 However, natural law may be seen as the primary focus, and “positive law which should be understood in analogy to (or as an imperfect version of) natural law.”45 For positive law to be a genuine law, “must for St. Thomas rest on Natural law and so on morality.”46 Therefore, natural law is opposed to positive law, which is human-made, conditioned by history, and subject to continuous change. Greater deliberation will be given to legal positivism later.
The “role natural law has played in broader religious, moral and political debates has, perhaps unsurprisingly, varied considerably.”47 With the introduction of additional theorists such as Locke,48 and Rousseau49 this wide scope, natural law encompasses, is understandable. Later discussion will be made of how their influence reached into the Age of Reason, when doctrines of natural rights were dominant. Natural law had turns of being significant and then less so throughout the eighteenth and nineteenth centuries, with the latter period being challenging for natural law theory. Natural law during this period was regarded as an “independent and rationalist system, professed and expounded by the philosophers of the secular school of natural law.”50 As one contemporary critic has stated, “the philosophers tended to say that the natural law was not natural, and the lawyers that it was not law.”51 The development of the World Wars had an adverse affect on natural law theory because inter alia of the suppression placed by the Nazis. Consequently, philosophers and political scientists, did not discuss “about natural law or natural rights anymore; and if one did, one was promptly relegated to beyond the pale by scornful colleagues.”52 The fate of the Jews across Europe during the Nazi regime could be regarded as a policy of natural supremacy.Due to the wide nature of natural law theory such acts are committed in the name of natural law meaning that according to its principles the actions will be justifiable.
Natural law tradition must acknowledge individual based issues as well as broader social and international concerns in determining the norms by which the population is ruled because problematically the people have different values and ideas about what the good is.53 To be classed as a natural law theorist all that seems to be required is “that it views values as objective and accessible to human reason.”54 Natural law requires an allegiance to law as in some way natural, and that nature as in some way normative.55 Natural law involves aspects of what is good, what is right, relating to human nature, in a strive to achieve epistemology. In order to achieve this path of knowledge consideration must be given to the connection between natural law and God.56 Natural law theory has become associated with religious belief, particularly with the Catholic Church because they were the main elaborators and defenders of that tradition. Thus religious motivation especially that of Catholics has entered the works of natural law theorists. This being so, it does not mean that other cultural and religious considerations are ignored in the construction of natural law theory because as acknowledged above; the history of natural law is extensive and wide ranging. However, this could have a detrimental effect on natural theory because it could prove problematical to provide a central understanding of natural law thesis.
“Voluntarism is the position that something is good or morally required because - and only because - God has ordered that we do it (or bad / morally - prohibited because of His prohibition).”57
This tradition believed that natural law was willed by God and that it was done so because it was regarded as being rationally good; not that it was rationally good because God had willed it. Augustine provides that “good men should rule far and wide and long, worshipping, the true God and serving Him with true rites and good morals.”58 Natural law theory provides a rational standard for conduct; because it is of the nature of law to provide a set of standards that rational agents should take as a guide to their conduct. Therefore, natural law theory need not require a God for the law to be viewed as rationally good. This is demonstrated by Grotius when he stated that “what we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him.”59 Thus, natural law wishes to disassociate itself from belief in a particular religious tradition or from any kind of belief in a deity. However, due to the extensive scope of natural law and natural law theorists; some state that “one cannot understand the notion of natural law without positing a supernatural being who is ordering compliance.”60 The relation of God to the law of nature has varied throughout history, and the opinion of Grotius has developed considerable support. The intellectualist theory provides that “law is not a decree of the sovereign but an expression of rational order inherent in nature and man”.61 Furthermore, its basic premise was that “what God has shown to be his will, that is law.”62
The natural law tradition posits a normatively ordered universe which often comprises all individuals in society having a set place and corresponding duties. Whereas, natural rights theories often deny or downplay a view of society as a whole except as a function of individuals and their rights.63 Thus, natural law and natural rights have a connection and should be included in this discussion; however it does not mean that the separate theories are linked in any way. Zuckert64 suggests that traditional natural law theory tends towards discussions of duties, while the natural rights analyses of Locke and Hobbes tends towards discussions of liberties.65 Natural law theory attributes the law as the “orders or principles laid down by higher powers that we should follow.”66 Aquinas asserts that officials are directed to pass legislation consistent with natural law. Natural law is often attributed sometimes erroneously to the expression “lex iniusta non est lex (an unjust law is no law at all), and therefore if the laws are unjust then there is no moral obligations to obey them”.67 Raz68 concludes that one cannot ignore moral considerations.69
The above mentioned natural law theorists such as Aquinas, have been inspirational to many of the modern natural law theorists like for example Finnis. However, in modern times natural law has struggled to deal with external threats via other theories which undermined its own, especially that of the debate between legal positivism. It is essential to discuss the impact of legal positivism when writing an essay on natural law theory. This was demonstrated by the exchange between Hart70 and Fuller, of which the former “located the separation between legal positivism and natural law theory at the conceptual separation of law and morality.”71 Natural law thinkers are inclined to believe that law and morality can be equated in some manner. Therefore, nnatural law theorists regarded their theory as superior because it associated the law with moral claims and aspirations. However, it resulted in criticism especially from those that support the positive law theory. In contrast, natural law theorists regard the legal positivism approach as being generally descriptive, largely empirical, and morally-neutral.72 Natural law consults the teleological concept in that it regards the ultimate objective, being a just society, which is achieved via the connection between law and morals. Thus, natural law theory of law incorporates moral evaluation, and therefore will take into consideration aspects of practice and experience of law that the society encounters. In my judgment, the theories of natural law and legal positivism are closely linked with the major difference being that where legal positivism considers law conceptually separated from morality; whilst natural law argues that moral evaluation is central to understanding the law. However, this distinction is so significant that it has lead to great debates suggesting that one theory is correct and the other therefore cannot be.
One of the most prominent of the modern natural law theorists is Finnis, and therefore requires detailed considerations. Finnis has consciously worked within the tradition of St. Aquinas, accentuating moral philosophy and meta-theory, whilst also being a foremost factor to the contemporary debates about the nature of law.73 Finnis’s Natural Law and Natural Rights,74 facilitated in reigniting the classical Thomastic / Aristotelian theory of natural law. Finnis bases his arguments on the foundations of basic goods of which he lists seven, which are: life, knowledge, play, aesthetic experience, sociability / friendship, practical reasonableness, and religion.75 These basic goods are there because we value them for their own sake, which a rational human being would require, due to their nature. In accordance with these basic goods there are a further nine intermediate principles for the treatment of these basic goods; which Finnis labels the basic requirements of practical reasonableness.76 Finnis holds these principles as being self-evident and that he does not envisage people to aspire to one single ideal, supporting the teleological approach. However, Finnis’s moral theory can be criticised because of its connections with claims about its exegetical accuracy. This is whether
“Aquinas is best understood as constructing a teleological view based directly on a view of human nature, or is best understood as offering a kind of virtue ethics – that there are certain goods basic to human flourishing, that we know or discover by using reason, and whose connection to human nature is indirect.”77
The Golden Rule forms the core of the moral norm of fairness; which is that “do to others as you would have them do to you; do not impose on others what you would not be obliged by them to accept.”78 Therefore, Finnis has provided profound crucial needed support for natural law theory. Especially in terms of the standard of positivist critique regarding the distinction between descriptive and normative propositions established by Hume and further developed by the jurisprudence of Bentham. Bentham provided critique of natural law on the basis of the separation of law and morals; how we are to conceive of the nature of legal standards and on the principle of utility.79 Finnis provided that
“Have the natural lawyers shown that they can derive ethical norms from facts? ... the answer can be brisk: They have not, nor do they need to, nor did the classical exponents of the theory dream of attempting any such derivation.”80
Modern natural law theory has developed and changed from the classical sense so much so that Hart, “offered the opinion that there was little if anything in a traditional natural law theory like that of John Finnis that he would have reason to object to.”81 This position has also been affirmed by MacCormick.82 Thus, there is support from what one could class as non-natural law theorists. Correspondingly, Dworkin, neither a supporter of natural law or legal positivism, does consider both of the theories implications, whilst suggesting that what is required is a “theory which accepts the necessary intersection of law and morality.”83 Hart introduces the notion of the minimum content of natural law84 where he offers discussions of the “various ways in which morality and law do overlap”.85 This is important because Hart is recognised as being a vociferous legal positivist, although natural law theorists should not get carried way by Hart’s comments. This is because there is only a minor resemblance between Hart’s argument and traditional natural law theory, which does not run deep. Hart was making an empirical prediction and not presenting a moral theory or a conceptual claim.86 Hart considers the other natural law theories which have been discussed and aims to narrow down the content into a core of good sense.87 Although, distinctions can be made between the different natural law theories Lloyd Weinreb has tried to reconstruct the original ancient Greek understanding of natural law theory, which involves viewing a normative order within nature.88 It is important to keep in mind that natural law tradition is grounded in moral philosophy and that in any consequent debates or discussions this must not be forgotten as it can give rise to the misunderstanding of natural law doctrines within the jurisprudential literature.89
In considering the natural law theory of Locke, it is important to note that “his version of natural law is a continuation of the classical natural law philosophy and not a derivation from it”.90 This provides distinctions in Locke’s natural law theory as compared with for example Hobbes. Locke addresses issues of the concept of natural law together with innate ideas. “It is said that the refutation of innate ideas constitutes a refutation of natural law as well.”91 Locke differentiates these to ideas of innate laws and natural laws. Locke goes on to state that the “knowledge of a God be the most natural discovery of human reason, yet the idea of him is not innate”.92 For Locke’s version of “natural law cannot be conceived without an external, most powerful and most knowing being.”93 This source of natural law provides the law with the notion that it is binding on all human beings. Natural law is “essential to man because it is in ‘conformity’ or ‘harmony’ with his rational nature.”94 Locke’s theory is continuous with the classical Stoicism and Christian natural law tradition, which is based on the “existence of an eternal, rational, and divinely ordained system of order, embracing both morality and law.”95 According to Locke
“The first and fundamental natural law… is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it.”96
The position that Locke represents in natural law theory can be categorised, when Locke stated the following
“The law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions, must, as well as their own and other men’s actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.”97 Furthermore, “the things which are established by divine judgement can be assailed by human presumption; they cannot be overthrown by anyone’s power.”98
In natural law, the term ‘law’ derives from binding because one is bound by a certain course of action, which should also equate for rule and measure of human action, which is know as reason.99 “Natural law is nothing else than the participation of the eternal law in rational creatures.”100 This is based on the principle that all power is derived from the Lord God. Natural law corresponds to the order of our natural inclinations to do good, which is present in everyone’s own nature. These inclinations will result in man to act according to reason; of which there is practical and speculative reason. The former involves issues of necessary truths whilst the latter consults contingent matters involving human action. Even with distinctions within the subject matter it remains generally clear that the law of nature as first principles is the same for all as a norm of right.101
Another key theorist to consider is Fuller, because of his critique of legal positivist which in turn benefited the natural law cause. Fuller criticises the legal positivist idea and firmly believes that law should not be treated as an object, instead it should be regarded as the answer / solution to all emerging problems. The law is central to Fuller’s ideology and that one must acknowledge the moral ideal toward which it is endeavoring. According to Fuller the “most fundamental tenet of natural law is an affirmation of the role of reason in legal ordering.”102 Following on from this Fuller perceives the law as the “enterprise of subjecting human conduct to the governance of rules.”103 Fuller attempts to impose a functional process approach to law rather than an object of study, in so doing Fuller concedes that “the mantra often ascribed to natural law theory, ‘an unjust law is no law at all,’104 begins to make sense.105 Thus, in this approach of natural law theory it is true to say that unjust laws do not create moral obligations to obey them in the way that just laws do. Fuller concludes that legal positivism seems to believe incorrectly that the existence or non-existence of the law is a matter of moral indifference. Furthermore, Fuller criticises legal positivism because they portray law as a “one-way projection of authority, when it is better understood as involving reciprocity between officials and citizens.”106 Fuller proclaimed a theory of law categorised as procedural naturalism which set out the minimal requirements for a recognisable legal system. This approach has raised numerous important issues concerning the understanding of the law. These concerns were focused around the debate upon the morality of the law, which had caused ambiguity because Fuller attributed two levels of morality that of aspiration and of duty.107 These moralities aim to achieve a goal of excellence or even perfection whilst also considering the minimum standards, which must be attained. Therefore on this basis Fuller offers a list of eight ‘principles of legality’ which would “serve as criteria for testing both the minimal duties of a government, and also set the objective of excellence towards which a good government would strive.”108 Fuller adopts anapproach known as the ‘internal morality of law’, which according to Fuller presents a variety of natural law. Fuller regards this approach as a “procedural or institutional kind of natural law … [which] affects and limits the substantive aims that can be achieved through law.”109 Fuller’s approach is an important contribution in the area of natural law even though it is regarded as being somewhat in the peripherals from the mainstream natural law thought. This is because Fuller considers that there is an ‘inner morality’ of law without which “undesirable and even iniquitous results may be produced”.110
The focus now turns to Hobbes, who acknowledges different types of laws of which; he regards natural law as being the unwritten law whilst consulting the other parts of laws; for example the civil law which is the written.111 Hobbes places great significance on nature because he regards nature as the “art whereby God hath made and governs the world”.112 Hobbes’s role in the development of modern natural law theory is instrumental as he is seen along with Grotius as an originator of modern natural law theory. Grotius focused on right reason stating that
“Natural right is the dictate of right reason, shewing the moral turpitude, or moral necessity, of any act from its agreement or disagreement with a rational nature, and consequently that such an act is either forbidden or commanded by God, the author of nature.”113
Hobbes is of the opinion that natural law is the law of reason. Consequently for Hobbes, he defines the law of nature, as “The Dictate of right Reason, conversant about those things which are either to be done, or omitted for the constant preservation of Life, and Members, as much as in us lies”.114
Hobbes therefore, removed the religious and metaphysical characteristics of the doctrine of the law of nature. Hobbes “affirmed the existence of natural law, but stated that individuals entering civil society will voluntarily surrender their rights to act on (their own interpretations of) it.”115
Modern natural law provides a new concept of reason and nature as compared with the medieval natural law discussed above. In that reason is “more pliable and suitable to the new conception of man in the universe.”116 Whilst nature is
“No longer the universal order created by God, but is simply the set of environmental, social, and historical condition which individuals must take into account in order to regulate their social life.”117
Hobbes has been instrumental in the innovation and development of the theory of natural rights. Hobbes values these rights and therefore considers them as the “reason why the sovereign has the duty to respect the laws of nature.”118 Hobbes is a strong advocate of natural law theory as he believes it is superior to positive law. Hobbes has provided a strong basis for modern natural law theory, which can only be given full force when his theory is considered along side those who affirmed this modern natural law theory, such as theorists like Locke. Hobbes does formulate, elaborate and redefine the most sophisticated elements of natural law theory which is that of: the statue of nature, the laws of nature, individual rights and the social contract.119 It can be seen that most modern philosophers do follow in some way the conceptual model of natural law theory which is built on the great dichotomy state of nature – civil society.120
With the differing natural law theories as seen above, a central proposition of natural law doctrines emerges which is that the “law of nature ought to be the governing law for all things and activities, including mankind and human relations.”121 Therefore natural law theory implies that one ought to behave according to the laws of nature; as well as implementing the moral aspect. Modern natural law doctrines have given rise to flexibility due to the variations in theories which has consequently led to fragmentation and ambiguity as compared with the older traditional versions. In a way it could be said that the resurgence in modern positivism has helped natural law to develop further. However, there exists ambiguity over how law has come about in terms of these theories. D’Entrèves provides that “positivist’s answer is to sacrifice the ‘ought’ to the ‘is’; the natural lawyer’s to sacrifice the ‘is’ to the ‘ought’.”122 D’Entrèves leaves open the idea that both aspects of ought and is, should be taken into account in law. For natural law to succeed it will require reason and conscience, and natural law may have to work complementary to the positivism in order to provide a better solution to discovering the nature of laws. Natural law theory entails a wide scope of philosophical considerations; therefore, natural law can be employed as a vehicle of reform or a reaction to various problems. Ross provides that “natural law is at the disposal of everyone. The ideology does not exist that cannot be defended by an appeal to the law of nature.”123
Natural law make easier to answer the problems associated with law and morals; that may have been created by legal positivist theories. It does not mean that if one takes the position against one side say he/she is against legal positivism, then it does not automatically mean that they are of the natural law theory. This is because natural law theory “divides into several branches, encompassing views ranging from the rather moderate to the quite extravagant.”124 This has been demonstrated by discussions made above of the different theorists. Natural law faced uphill struggles for development and support due to its associations to religion and the rise of a scientific ethos which redirected law from right reason to fact.125 After the above critical analysis and discussions, one can acknowledge that a natural law revival has taken place in the modern era. However, according to Macedo126 natural law theory fails to meet the requirements of public justification because of the “large gap between the first principle of natural law and actual norms.”127 To combat such allegations against natural law, certain theorists including St. Aquinas throughout the numerous years have tried to bridge this gap. The first principle of the moral order is that “good should be done and evil avoided”,128 according to the natural law theory of St. Aquinas.
However, different theorists acquire different positions in the natural law doctrine, for example Gewirth129 identifies himself as part of the natural law tradition, whilst criticising the scholastic tradition and implementing his own perspective. Gewirth’s position rests upon a “minimal requirement of rationality, of which all agents are capable”.130 It becomes apparent that there are many natural law theories, some less objectionable than others. However, a common concept remains throughout natural law theory and that is that there is a higher law central to a theoretical project.131 Moreover, according to Fuller, “natural law is a higher law and any human law in conflict with it is invalid.”132
The problem associated with writing such an essay is that natural law theories are always developing with various theorists being able to take up new alternative positions, as well as combating new developments of rival positions. Furthermore there is still scope of analytical development of one’s own theoretical position.133 There are many systems of natural law; of which, “men have drawn their criteria of justice and of right law from many sources”; from the nature of: things, man and of God. These various schools of natural law discussed above, are united and fall under a common rubric because in all of them a certain coalescence of the ‘is’ and ‘ought’ will be found.134 Natural law is a fundamental part of jurisprudence, so much so that the “undying spirit of natural law can never be extinguished”,135 and therefore will remain as an integral part of the historical study of law. Natural law attempts to respond to the problem of defining what is law, and it asserts that law is part of ethics. Natural law could be described as the provider of the name for the point of intersection between law and morals.136
The above natural law theorists are by no means the complete set of natural law theorists, however the aim was to show that these theorists addressed key issues, which should be given considerable acknowledgement. Natural law theorists tackled the ambiguous nature of the relation between law and morals, and their obligations. They also secured the “comparative independence of the law-giver as well as the inviolable rights of the individual conscience.”137 Kant138 has pointed out that where values and norms coincide, is the ultimate origin of law as well as the beginning of moral life proper. This according to D’Entrèves is what is meant by the name of natural law.139 Natural law theory provides great contribution to the totality of legal theory, as well as the other schools of thought. Natural law theory has remained fundamental in the context of modern legal and social discourse.140 The modern natural law tradition has been developed to a certain extent on the classical natural law tradition to help address the constant development of new debates concerning legal theory.
“The basic precepts of natural law are the preservation of life, propagation, education of offspring, the pursuit of truth and the construction of peaceful society. Thus natural law consists of broad general principles reflecting God’s intentions for man in creation.”141
Natural law makes one reflect about “why we have law, what law can achieve and what we should do when we think it is failing.”142 Therefore, natural law should be given the same type of respect and consideration in the modern era, as it did all those years ago. Natural law rests on the self-evident truths of fundamental goods and deduces that human action can be focussed towards what is morally right by practical reason. Natural law’s significance becomes apparent if one was to examine the legal system, where one will come across many traces of natural law theory.
References:
1Freeman, M.,D.,A., Lloyd’s Introduction to Jurisprudence, 7th ed. (2001) Sweet & Maxwell, p.89.
2Bix, B., Natural Law Theory: The Modern Tradition, (2000) OUP, p.1.
3J., Boyle, “Natural Law and the Ethics of Traditions” in R.,P., George (ed.) Natural Law Theory Cotemporary Essays, (1992) Clarendon Press Oxford, p.4.
4Finch, J., Introduction to Legal Theory, 3rd ed. (1979) Sweet & Maxwell, p.31.
5Veatch, H., “Natural Law: Dead or Alive” (1979) vol.1, no.4, Literature of Liberty, Cato Institute.
6D’Entrèves, A.,P., Natural Law, 2nd ed. (1970) Hutchinson University Library, p.16.
7Freeman, M.,D.,A., (2001) op. cit., p.90, above, n.1.
8J., Boyle, (1992) op. cit., p.12, above, n.3.
9supra, p.7.
10O’Connor, D.,J., Aquinas and Natural Law, (1967) Macmillan & Co Ltd., p.57.
11supra, p.81.
12per Sir Ernst Barker, Traditions of Civility, cited in D’Entrèves, A.,P., (1970) op. cit., p.14, above, n.6.
13Freeman, M.,D.,A., (2001) op. cit., p.90, above, n.1.
14David Hume (1711–1776).
15George, R.,P., In Defense of Natural Law, (1999) OUP, p.2.
16Hume, D., Treatise of Human Nature, Part III, 1.1 (1739), cited in Bix, B., (2000) op. cit., p.19, above, n.2.
17Bix, B., (2000) op. cit., p.20, above, n.2.
18George, R.,P., (1999) op. cit., p.17, above, n.15.
19Lon Louvois Fuller (1902-1978).
20Ronald Dworkin (1931-).
21Bix, B., (2000) op. cit., p.21, above, n.2.
22McCoubrey, H., White, N.,D., Textbook on Jurisprudence, 3rd ed. (1999) Blackstone Press Ltd., p.59.
23John Finnis (1940-).
24Freeman, M.,D.,A., (2001) op. cit., p.94, above, n.1.
25(429-347 B.C.) .
26(384-322 B.C.) .
27(470-399 B.C.)
28(106-43 B.C.) .
29(C. 1225-1274) .
30Freeman, M.,D.,A., (2001) op. cit., p.104, above, n.1.
31Morrison, W., Jurisprudence: from the Greeks to Post-Modernism, (1997) Cavendish Publishing Ltd., pp.52-54.
32Finch, J., (1979) op. cit., p.32, above, n.4.
33Veatch, H., (1979) op. cit., above, n.5.
34ibid.
35Finch, J., (1979) op. cit., p.33, above, n.4.
36John Austin (1790-1859).
37McCoubrey, H., White, N.,D., (1999) op. cit., pp.100-101, above, n.22.
38Samuel von Pufendorf (1632-1694).
39Freeman, M.,D.,A., (2001) op. cit., p.92, above, n.1.
40Francisco Suárez (1548-1617).
41Hugo Grotius (1583-1645).
42Baruch Spinoza (1632-1677).
43Bix, B., (2000) op. cit., p.12, above, n.2.
44Bix, B., (2000) op. cit., p.3, above, n.2.
45Hittinger, R., “Natural Law as Law: Reflections on the Occasion of Veritatis Splendor”, (1994) 39 Am. J. Juris. 1, cited in supra, p.8.
46O’Connor, D.,J., (1967) op. cit., p.82, above, n.10.
47Bix, B., (2000) op. cit., p.2, above, n.2.
48John Locke (1632-1704).
49Jean-Jacques Rousseau (1712-1778).
50D’Entrèves, A.,P., (1970) op. cit., p.15, above, n.6.
51Veatch, H., (1979) op. cit., above, n.5.
52ibid.
53Bix, B., (2000) op. cit., p.2, above, n.2.
54See Finnis, J., Natural Law and Natural Rights, (1980) Oxford Clarendon Press, pp.23-25; citied in supra, p.4.
55per Hittinger, R., A Critique of the New Natural Law Theory (1987) University of Notre Dame Press, p.8 cited in R.,P., George, (1992) op. cit., p.83, above, n.3.
56See Talafrro, C., “God’s Natural Laws” in R.,P., George (ed.) Natural Law Liberalism and Morality, (2001) Oxford University Press
57Bix, B., (2000) op. cit., p.10, above, n.2.
58Augustine, The City of God, (1988) Cambridge University Press, Book IV, Chapter IV, p.147.
59See Grotius, H., De Jure Belli Ac Pacis Libri Tres 13, Trans., Francis W. Kelsey, (1925) Clarendon Press, cited in Bix, B., (2000) op. cit., p.9, above, n.2.
60See Garet, Natural Law and Creation Stories, pp.236-37, cited in ibid.
61Singh, R., John Locke and the Theory of Natural Law, (1961) John Wiley & Sons Ltd, p.110.
62Tuck, R., Natural Rights Theories, (1981) Cambridge University Press, p.59.
63Bix, B., (2000) op. cit., pp.11-13, above, n.2.
64Zuckert, M.,P., “Do Natural Rights Derive From Natural Law?”, (1997) 20 Harv. J.L. & Pub. Pol. 695.
65Bix, B., (2000) op. cit., pp.11-13, above, n.2.
66supra, p.13.
67supra, p.15.
68Joseph Raz (1939-).
69Raz, J., The Morality of Freedom, (1986) Oxford Clarendon Press, p.157.
70Herbert Lionel Adolphus Hart (1907-1992).
71See Hart, H.,L.,A., “Positivism and the Separation of Law and Morals”, (1958) 71 Harv. L. Rev. 593; Fuller, L.,L., “Positivism and Fidelity to Law - a Response to Professor Hart”, (1958) 71 Harv. L. Rev. 630, cited in Bix, B., (2000) op. cit., p.20, above, n.2.
72supra, p.21.
73Finnis has also written a detailed commentary on Aquinas. Finnis, J., Aquinas: Moral, Political, and Legal Theory (1998), cited in supra, p.35.
74Finnis, J., (1980) op. cit., above, n.54.
75supra, pp.80-90, cited in Bix, B., (2000) op. cit., p.35, above, n.2.
76supra, pp.100-126.
77Bix, B., (2000) op. cit., pp.38-39, above, n.2.
78J., Finnis, “Natural Law and Legal Reasoning” in R.,P., George, (1992) op. cit., pp148-149, above, n.3.
79Simmonds, N.,E., Central Issues in Jurisprudence, 2nd ed. (2002) Sweet & Maxwell, pp.4-6
80Finnis, J., (1980) op. cit., p.33, above, n.54.
81See Hart, H.,L.,A., Essays in Jurisprudence and Philosophy, (1983), cited in Bix, B., (2000) op. cit., p.48, above, n.2.
82MacCormick, N., “Natural Law and the Separation of Law and Morals”, R.,P., George, (1992) op. cit., pp.105-130, above, n.3.
83See Dworkin, R., Taking Rights Seriously, pp.1-130, cited in Bix, B., (2000) op. cit., p.52, above, n.2.
84Hart, H.,L.,A., The Concept of Law, 2nd ed. (1994) Oxford Clarendon Press, pp.189-200.
85Bix, B., (2000) op. cit., p.53, above, n.2.
86ibid.
87Finch, J., (1979) op. cit., p.39, above, n.4.
88Weinreb, L., Natural Law and Justice, (1990) Harvard University Press, cited in Bix, B., (2000) op. cit., p.54, above, n.2.
89Bix, B., (2000) op. cit., p.55, above, n.2.
90Singh, R., (1961) op. cit., p.106, above, n.61.
91ibid.
92Locke, J., The Works of John Locke in 9 Vols, Volume I: an Essay Concerning Human Understanding, 12th ed. (1824) London Rivington, Part I, Book I.
93Singh, R., (1961) op. cit., p.110, above, n.61.
94supra, p.112.
95ibid.
96Locke, J., Two Treatises of Government, ed. Thomas Hollis (1764) London: A. Millar et al., Chap XI of the Extent of the Legislative Power, §.134.
97supra, §.135.
98Tiernay, B., The Crisis of Church and State 1050-1340, (1964) University of Toronto Press, p.14.
99Aquinas, T., St. Thomas Selected Political Writings, (1959) Oxford Blackwell, excerpts are: Summa Theologica 1ae2ae, p.55.
100supra, p.58.
101supra, pp.62-64.
102Fuller, L.,L., Anatomy of the Law, (1977) Greenwood Press, pp.163-164 cited in Summers, R.,S., Lon L. Fuller, (1984) Edward Arnold, p.64.
103Bix, B., (2000) op. cit., p.23, above, n.2.
104See Fuller, L.,L., The Morality of Law, rev. ed., (1969) Yale University Press, pp.363-366.
105Bix, B., (2000) op. cit., p.24, above, n.2.
106Bix, B., (2000) op. cit., p.24, above, n.2.
107See Fuller, L.,L., (1969) op. cit., pp.5-6, above, n.104.
108supra, pp.33-41.
109supra, p.184.
110Finch, J., (1979) op. cit., p.37, above, n.4.
111Hobbes, T., The English Works of Thomas Hobbes of Malmesbury, ed. Sir William Molesworth, (1651) London: Bohn, Chapter XXVI of civil laws.
112ibid.
113Grotius, H, On the Law of War and Peace, Trans. Campbell, A.,C., (2001) Batoche Books Kitchener, p.9.
114Hobbes, T., De Cive, (1651) London, of Liberty: Part II of the Law of Nature Concerning Contracts.
115Bix, B., (2000) op. cit., p.19, above, n.2.
116Bobbio, N., Thomas Hobbes and the Natural Law Tradition, (1989) University of Chicago Press, p.154.
117ibid.
118ibid.
119supra, p.171.
120supra, p.1.
121Finch, J., (1979) op. cit., p.29, above, n.4.
122D’Entrèves, A.,P., (1970) op. cit., p.179, above, n.6.
123Ross, S., On Law and Justice, (1974) Stevens, p.261 cited in Finch, J., (1979) op. cit., p.40, above, n.4.
124Summers, R.,S., (1984) op. cit., p.62, above, n.102.
125supra, p.63.
126Macedo, S., Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism, (1990) Oxford Clarendon Press, p.211.
127George, R.,P., Wolfe, C., Natural Law and Public Reason, (2000) Georgetown University Press, p.55.
128Crowe, M.,B., The Changing Profile of the Natural Law, (1977) The Hague, p.285
129Alan Gewirth (1912-2004).
130Gewirth, A., Rights and Virtues, p.748 cited in R., Hittinger, “Natural Law and Virtue: Theories at Cross Purposes” in R.,P., George, (1992) op. cit., p.51, above, n.3.
131J., Stout, “Truth, Natural Law, and Ethical Theory” in R.,P., George, (1992) op. cit., p.83, above, n.3.
132Summers, R.,S., (1984) op. cit., p.64, above, n.101.
133J., Boyle, “Natural Law and the Ethics of Traditions” in R.,P., George, (1992) op. cit., p.28, above, n.3.
134Fuller, L.,L., The Law in Quest of Itself, (1940) The Foundation Press, pp.6-7.
135D’Entrèves, A.,P., (1970) op. cit., p.108, above, n.6.
136supra, pp.109-110.
137supra, p.115.
138See Kant, I., The Moral Law: Groundwork of the Metaphysic of Morals, Trans. Paton, H.,J., (1986) London, p.81, cited in ibid.
139D’Entrèves, A.,P., (1970) op. cit., p.116, above, n.6.
140McCoubrey, H., White, N.,D., (1999) op. cit., p.105, above, n.22.
141Morrison, W., (1997) op. cit., p.69, above, n.31.
142Freeman, M.,D.,A., (2001) op. cit., p.140, above, n.1.
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