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Natural law is law that exists independently of the positive law of a given political order, society or nation-state. It is simultaneously a legal philosophy or perspective, and a genre of law - depending on the jurisdiction in which the term is used.
As a genre, natural law is the law of nature - that is, the principle that some things are as they are, because that is how they are. This use is especially valid in Scotland, where "natural law" operates as a genre of law parallel to both civil and criminal law, and its discussion is not limited to human beings. The law of gravity, for example, is a natural law in this sense.
As a philosophical perspective, especially in the English and American legal traditions, the principles of natural law are expressed, obliquely or openly, in such documents as Magna Carta and the Declaration of Independence, when rights are discussed, explicitly or implicitly, as being inherent. For example, the phrase "all men are created equal and endowed by their creator with certain rights" expresses a natural law philosophy.
The use of natural law, in its various incarnations, has varied widely through its history. It currently has meanings in ethics and jurisprudence, despite the core claims of both fields being logically independent. According to natural law ethics, the moral standards that govern human behavior trace to the nature of human beings, to a supreme being, or to the cosmos in general. According to natural law jurisprudence, the fundamental principles of all law derive from nature and the natural world, or from a supreme being, depending on the particular perspective - but it is never the creation of human societies or governments. Social contract theorists, such as Hobbes, Locke or Rousseau all believed in a natural law and in natural rights, which were transferred from the individual subject to the sovereign state. The state would then protect individuals from each other through the mediation of its monopoly on the legitimate use of physical force. The idea that the concepts of law and morality intersect in some way is called the "overlap thesis".
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 will deal with its usages separately rather than attempt to give a single concept that ties them all together.
History
Greek philosophy was highly concerned with the difference between "nature" (physis, φúσις) on the one hand and "law" or "custom" (nomos, νóμος) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. It was in accordance with the latter that philosophers strove to live. The development of this tradition into a natural law is usually attributed to the Stoics. This law was how a rational human being, seeking his own true happiness, would act. These theories became highly influential among Roman jurists, and consequently played a great role in subsequent legal theory.
Despite its pagan origins, a number (though not all) of the early Church Fathers sought to incorporate the natural law tradition into Christianity (the suspect devotion of the Stoics to pagan worship no doubt aided in this adoption). 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. In the Twelfth Century, Gratian reversed this, equating the natural and divine laws. Thomas Aquinas restored natural law to its independent state, asserting that, as the perfection of human reason, it could approach but not fully comprehend the divine law.
All human laws were to be judged by their conformity to the natural law. An unjust law was in a sense no law at all. The common law accepted this in determining the content of the law in a particular case. 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.
The natural law was inherently teleological in that it aimed at human happiness. Its content was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction (as with the Stoics) or salvation (as with the Christians). The state, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness.
By the Seventeenth Century, such a view came under intense criticism from some quarters. Thomas Hobbes instead founded a 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. 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.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. 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. Thomas Jefferson, echoing Locke, employed natural law in his appeal 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.
In contemporary philosophy
The Roman Catholic Church understands natural law to be immanent in nature; this understanding is in large part due to the influence of Thomas Aquinas (1225-1274 A.D.), often as filtered through the School of Salamanca.
It 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. It describes human persons as being inclined toward the good. 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.
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 the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
In contemporary jurisprudence
In jurisprudence, natural law is the doctrine 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.
These two aspects are actually very different, and 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. In either case, natural law is considered something that exists independent and outside of the human legal process itself, rather than a principle whose origin lies inside the legal system.
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 embodied natural law principles since time immemorial and set limits on the power of the monarchy. The concept of natural law was expressed in the Magna Carta, the English Bill of Rights, the United States Declaration of Independence, and others.
Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). Many legal philosophers, including Americans Germain Grisez, John Finnis, Robert P. George, and Canadian Joseph Boyle, have constructed a new version of natural law. The 19th-century anarchist and legal theorist, Lysander Spooner, was also 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, which are "self-evidently" and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.
See also
References
- Robinson, Dave & Groves, Judy (2003). Introducing Political Philosophy. Icon Books. ISBN 1-84046-450-X.
- Raoul Muhm: Germania: La rinascita del diritto naturale e i crimini contro l´umanità. Deutschland: Die Renaissance des Naturrechts und die Verbrechen gegen die Menschlichkeit. Germany: The renaissance of natural law and crimes against humanity. Vecchiarelli Editore Manziana (Roma) 2004 ISBN: 88-8247-153-2
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