Natural Law for Dummies 1: The Emergence of Natural Law

Analyzing the impact of various jurists of the classical school of natural law.

What is Natural Law?

  • Natural Law is the starting point of Jurisprudence
  • Natural Law originated as a moral theory which explained the nature of morality and not the nature of law.
  • It later emerged as a moral theory of jurisprudence, which maintains that law should be based on morality and ethics.
  • Natural Law holds that the law is based on what’s “correct.”
  • Natural Law is “discovered” by humans through the use of reason and choosing between good and evil.
  • Therefore, Natural Law finds its power in discovering certain universal standards in morality and ethics.
  • There exist various naturalists on the spectrum of Natural law, each holding diverse opinions about the theories they propound but what unites them all or what is the common denominator in their theories is that morality is inseparably connected to law.

Normative Jurisprudence

  • Natural law school recognizes that there are moral values that pervade our lives and by doing so, they assert the closeness of law with morality.
  • Natural law theory thus exists within the parameters of normative jurisprudence.
  • In law as an academic discipline, the term “normative” is used to describe the way something “ought” to be done according to a value position.
  • Thus when we are discerning what is good, we are using our intelligence differently from when we are determining what exists.

Overlapping Thesis

  • Natural law theory asserts the claim of overlapping thesis which then again closely relates law and morality thereby making them two sides of the same coin.

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Classical Natural Law

  • Most of the classical theorists were based on moral or political theories, asking: how does one act morally? Or specifically, what are one’s moral obligations as a citizen within a state, or as a state official? And what are the limits of legitimate (that is moral) government action?
  • One can find important aspects of the natural law approach in Plato’s dialogues (429-347 BC), Aristotle’s Nicomachean Ethics (384-322 BC) and Cicero’s work (106-43 BC).
  • It is given a systematic form by Thomas Aquinas (1225-1274) in Summa Theologica

The Greeks

  • The relevance of the Greeks is such that we don’t find naturalists from this school of thought but their contributions are so great that natural law theory is influenced by their work. This is enunciated by a quote of Nietzsche where he says: “When we speak of the Greeks, we unwittingly speak of today and yesterday.”

The Sophists:

  • They were wise and informed persons
  • One of the Sophist’s, namely Protagoras (485-410 BC) claimed that: “Man is the measure of all things”
  • The most characteristic and fertile developments of Greek philosophy took form within the Sophists.
  • Sophists were traveling teachers of wisdom who looked within upon their own thought and nature, rather than out upon the world of things.

The Stoics (350-260 BC):

  • This school was found by Zeno
  • Zeno and his followers placed the concept of “nature” in the center of their philosophical system.
  • To Zeno, the whole universe consisted of one substance and this was reason.
  • The law of nature to him was identical to the law of reason>>> Man as part of the cosmic nature was an essentially rational creature.
  • Reason pervaded the whole universe and was the basis of law and justice

There are two giants that dominate the philosophy of the ancient world: Plato and Aristotle. Neither can be described as natural lawyers. But in their philosophies we see strands of natural law

Plato (429-347 BC):

  • To Plato can be traced that strand of natural law thinking that regards values as having: an eternal existence and an eternal verification.
  • Since for Plato the forms of ‘goodness’, ‘virtue’, ‘honesty’ were eternal and immutable, they constituted moral principles of universal and timeless validity existing above and unaffected by changing human attitudes or beliefs; moral principles by reference to which all human actions and views must be judged.

plato-quote

  • “We are discussing no small mater but how we ought to live”- Socrates, as reported by Plato in The Republic
  • According to Plato, despite the variety of opinions and practices, there are indeed some true and valid standards
  • Plato used to have arguments with the Skeptics of that time who were inclined to question or doubt all accepted opinions.
  • The skeptics contended that by nature, naturally the strong and selfish prevail over those who are weak.
  • Plato responded that trying to live ‘naturally’ or to live within the law of nature by ruthless pursuit of one’s desires for power or other satisfaction is incoherent and unreasonable.
  • By nature one’s desires, whether intelligent (say ‘knowledge’ and ‘friendship’), or primarily emotional (food, reputation etc) are in need of being governed and moderated by standards of reason.
  • And these standards include the establishing and maintenance of a good order with, and among one’s fellows
  • Justice is the soul of the society for Plato. He contended that justice in the whole make up of the particular individual is the source of, mirrors and is reflected by justice in society.

Aristotle (384-322 BC):

  • For Aristotle, there is always potential for further change. In everything there is a potentiality striving to reach a further stage of actuality.
  • The philosophy that everything that exists has a predetermined end is termed as teleology.
  • Aristotle postulated a state based on law as the only practicable means of achieving the “good life” – which according to him, was the chief goal of political organization (The Politics)
  • Aristotle sought to identify values through the use of reason. Man by his nature is a political animal; it is in his nature to live in a state.
  • “Man”, he exclaimed, “when perfected is the best of animals but if he be isolated from law and justice he is the worst of all”. (The Politics)

aristotle_quote

The Characteristics of Natural Law:

The classical doctrine of natural law speaks of natural law as having the following characteristics:

  1. Universal: One common conception of ‘Justice’
  2. Immutable: Unchanging and available at all places at all times
  3. Higher Law: The natural lawyer recognizes the existence and need for man-man (human law). But regards this as inferior to natural law. When there is a conflict between human law and natural law, natural law prevails and human law lacks validity.
  4. Discoverable by Reason: It is a characteristic of natural law that the truths it embodies are not made known to man by some Great Architect beyond the skies. The truths of natural law are not revealed truths. The truths of natural law are ascertainable by man through the exercise of the reason with which he is by nature endowed.
  • The truths of natural law are determined by observation followed by reflection, for instance: “What are man’s natural ends?”
  • Thus laws that further the achievement by man of his natural ends assists the achievement of the purposes of nature. Such laws, laws that are in accordance with the ultimate purposes of man constitute natural law.
  • Natural law ordains that society should be ordered in such a way as to assist man in fulfilling his purpose.
  • Thus natural law comprises of a body of permanent, eternal truths, truths embodying precepts of universal applicability, part of the immutable order of things, unaffected by changing human beliefs or attitudes.

The Romans

Cicero (106-43 BC):

  • Cicero was a Roman lawyer and statesman. Drawing on Stoic philosophy, he usefully identified the 3 main components of any natural law philosophy:
  • “ True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting….. It is a sin to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely… God is the author of this law, its promulgator and its enforcing Judge.”

NL2

  • Cicero concurred with the philosophy of the Stoics
  • Like them, he was inclined to identify nature and reason and to assume that reason was the dominating force in the universe.
  • In his famous definition on natural law, Cicero, in ascribing “natural force” to the law, made it clear that the mind and reason of the intelligent man was the standard by which justice and injustice were to be measured.
  • Cicero was of the favour of the position that an utterly unjust law lacks the quality of law.

 St. Augustine (354-430 AD):

  • Saint Augustine was a leading Christian theologian, in keeping with Christ’s instructions had written: ‘What does it matter to a man, in this brief mortal life, under whose rule he lives, provided that the rules do not force him to do evil.’
  • “Justice being taken away , what are kingdoms but robber bands enlarged?”
  • For him government became a necessary tool to restrain men from doing evil through the fear of punishment.

St. Aquinas (1225-1274):

NL3

  • Aquinas developed the writings of Aristotle to reconcile the secular authority of princes with the theological authority of the Church.
  • Man was meant to live in a polis (state) but a Christian one.
  • Natural law was based on reason, and could be understood by reflecting on the nature of man and God’s purpose in creating him.
  • Law according to Aquinas is a rational ordering of things which concern the common good; promulgated by whoever is in charge with care of the community. To the extent that human law partook of natural law, it would oblige in conscience.
  • Aquinas acknowledged a fact of medieval life that is even more apparent today. That the specific content of particular legal systems cannot be reasoned from general ethical principles. For human law goes beyond the natural law question ‘What am I obliged to do by my conscience?’ This is where according to Aquinas, sanctions play a role.
  • Here again, Aquinas’s system represented an ingenious synthesis of Christian scriptural dogma and Aristotelian philosophy.

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Thomas Aquinas further distinguished between 4 different kinds of law:

  1. Eternal Law: Known only to God. The Universe is governed by divine providence or divine reason. The ultimate order is imposed by God and known to God alone. The law of the cosmos, the law of gravity and physics is a good example.
  2. Natural Law: The participation of rational creatures in the cosmic law is called natural law. Good is to be done. Evil is to be avoided. The voice of reason makes it possible for us to distinguish between morally good and bad actions.
  3. Divine Law: It is the law revealed by God through scriptures and is recorded in the old and new testament.
  4. Human Law: “An ordinance of reason for the common good , made by him who has care of the community, and has promulgated it.” – Summa Theologica

Relationship between Natural Law and Human Law according to Aquinas

  • Sometimes human law is simply deduced from the general precepts of natural law. But there is a second way in which human law is created in accordance with natural law and here Aquinas gives an analogy of an architect.
  • Example #1: Aquinas gives the example of an architect and that illustrates the relationship between natural law and human law.
  • Example #2: While natural law requires that thieves be punished, it (natural law) does not specify what the particular punishment should be. Thus what natural law lays down or can be deduced from it by reason alone is specificatio or specified. What man must practically decide about compatibility with natural law by deduction from it, such as the proper punishment for it is a matter of determinatio or something that has to be determined- and this is determination within the boundary set by natural law.

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Conflict Between Natural Law and Human Law for Aquinas

  • According to Aquinas, any purported law which is in conflict with natural law and/or divine law is a mere corruption of law and so not binding by virtue of its own legal quality; nevertheless, even if an enactment is contrary to natural law and so ‘unjust’, obedience may still be proper to avoid a bad example or civil disobedience, avoiding scandal or some particular danger.
  • Aquinas’s theory gives political rulers quite a lot of room to manoeuvre. So long as what they lay down is guided by a reasoned assessment of the common good, it has the poer to bind in conscience.

Grotius (1583-1645):

  • Grotius argued that a common universal law of nations did not require a Catholic or any other religious source for its obligatory force: ‘natural law would retain its validity even if God did not exist.’
  • Because of the eminence of Grotius, the seed of secular natural law docrine was resown
  • Natural law could provide the foundation of a system of ethics, a reason why men should behave in a certain way that was independent of the fact that God’s will revealed in the scriptures directed men to act in the same manner.
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About MaryamAkram

Maryam Akram is a law graduate of University of London and an adjunct faculty member of Pakistan College of Law teaching the subject of Jurisprudence and Legal Theory. Apart from her academic responsibilities, she aspires to be a professional street photographer. An easy going person who loves to laugh and make other people smile as well. She loves eating ice cream. Her philosophy of life can be summed up in three words "Eat (preferably ice cream), pray, love."

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