Natural Law

Natural Law Meaning

Natural law is a philosophical and legal concept that seeks to establish a universal set of moral standards that transcend human-made laws. It is believed that natural law is inherent in nature and that it is knowable through human reason. This concept has been influential in the development of Western legal thought and has been used to justify certain laws and practices throughout history.

What is Natural Law?

Natural law emphasises the importance of justice, human dignity, and the protection of individual rights. It also places an emphasis on the fundamental equality and dignity of all individuals, regardless of their position in society. Natural law continues to be a relevant and important concept in modern legal discourse, particularly in debates relating to human rights and social justice.

Natural Law theory

There is no single theory of natural law, but rather a number of theories linked by certain common assumptions.
Central to these is the assertion that there are certain objective moral principles which can be discovered by reason and according to which man ought to behave. (i.e. the notion that there is some set of core values which inform us of what humanity is and of the regulation of human existence through law.)
These principles are universal, unchanging and absolute, and remain objectively true even if they are ignored, misunderstood or abused.

Lex injusta non est lex

"Lex injusta non est lex" is a Latin phrase that translates to "an unjust law is no law at all." It expresses the notion that laws that are unjust or contrary to basic moral principles cannot be truly considered laws because they do not reflect what is right and fair. This principle is often attributed to St. Augustine, who believed that human laws must be in conformity with divine laws and that any law that is incompatible with natural law is inherently unjust. This idea has been influential in many legal and political systems throughout history, as it has been used to challenge unjust laws and to assert the idea that the legitimacy of law comes not only from its enactment but from its moral grounding as well.

A Case for Civil Disobedience

The study of natural laws is valuable inasmuch as it turns our attention away from the historically fortuitous features of human legal systems to the near-universal principles which underlie them.
It can make us stop to consider why we have laws at all and what to do when the law fails and perpetrates injustice.
The primary attraction of natural law to the modern thinker is that it makes room for the argument that there may in some circumstances be a higher duty than mere obedience to the laws of the state.
Such an argument has been raised intermittently throughout history, but featured largely in the Nuremberg War Crimes Trials and so re-awakened interest in the natural law philosophy.

If we are to categorise certain laws as unjust, however, certain basic questions arise.

What makes a law unjust? Aquinas said a just law was one which served the common good, distributed burdens fairly, promoted religion, and was within the law-maker's authority, but these are value-laden criteria and open to argument in any given case.

Who decides whether or not a law is unjust? If natural law is truly objective and ascertainable by reason, then such a decision should be open to anyone and not just to lawyers, but the practical consequences of that are alarming.

What if a particular law is unjust? Should the citizen obey it even so, for fear that disobedience would bring the law as a whole into disrepute? And should the judges apply such a law or simply ignore it?

Objective Moral Principles

At the heart of the natural law philosophy lays the idea that there are certain universal and unchanging moral principles, and we may therefore ask how we are to discover these principles. Different writers have suggested various approaches, though each of them has certain flaws.

The classical approach

The classical approach is that by observing what happens in nature we can deduce what ought to happen. Thus, for example, it is natural for all creatures (including man) to reproduce themselves, and so we may deduce a principle of natural law that man ought to reproduce. Hume and other critics would reply that such logic confuses description with prescription, and makes an unwarranted leap from what is to what ought to be. However, even the positivist Hart admits that in everyday thought and there is a tendency to deduce "ought" from "is". We regard an abnormal state of affairs as "wrong", and suggest that children "ought" to develop at a certain rate simply because this is what usually happens.

The teleological approach

The teleological approach is one, which assumes certain natural predetermined ends. In Aquinas' case this is God's plan for the universe, while Finnis adopts a secular approach with his seven "basic goods". Such approaches do not suffer the logical failure of the classical approach, but they do require acceptance of the pre-asserted ends as being those, which are indeed objectively desirable irrespective of time or place.

Hart’s "minimum content of natural law"

Hart has suggested a “minimum content of natural law” based on biological and psychological observation. He notes certain truisms about human nature

human vulnerability,
approximate equality,
limited altruism,
limited resources, and
limited understanding and strength of will

Hart assumes a commitment to survival; from these, he claims, we can work out a set of essential principles to enhance our chances of survival and to protect persons, property and promises. This is not to say that a legal system must logically include Hart's minimum content, but only that as a matter of practical efficiency it is unlikely to succeed unless it does so. This may perhaps be seen as an alternative teleological approach, with the difference that Hart's "end" is physical survival rather than eternal life.

The varying nature of Ought

Some writers begin by asserting as self-evident the natural law principles themselves: we hold these truths to be self-evident, begins the American Declaration of Independence, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, which among these are life, liberty and the pursuit of happiness. The problem with this approach is that what is self-evident to one society may not seem so to another: we might agree in twentieth-century England that slavery is wrong, but this was by no means self-evident in eighteenth-century America or pre-Christian Greece. The modern jurist Rudolf Stammler has suggested that the content of natural law may therefore vary from one society to another, but this is wholly inconsistent with our earlier definition.

History of Natural Law

Even before Aristotle (384-322 BC) the idea was around that human laws had their place in the order of things, but he and the Stoics argued that man could apply his own reason to the state of nature to develop principles of morality and natural justice which would be universal, unchanging and natural. The most important role played by them is a systematic attempt to not deal with problems of good and evil (non theological) but to deal with ideals of rationality so that for the Greeks, natural law was to be found in absolute rationality.

These Greek ideas spread to Rome, and Cicero (106-43 BC) said that true law was right reason in agreement with nature ... it was a sin to try to alter this law or to repeal any part of it, and it was impossible to abolish it entirely. The natural law, he felt, was a higher law by which the validity of positive law was to be measured. Logically, therefore, an unjust man-made law in opposition to natural law was not truly law.

The spread of the Roman Empire created a need for some system of law, simpler and wider-ranging than the jus civile of Rome, to regulate dealings between Romans and strangers or between strangers. Justinian remarked that throughout the known world every people ... used partly a law peculiar to itself and partly a law common to all mankind, and so the jus gentium was therefore created as a universal code of law applicable throughout the Empire. This was recognised by Aquinas and most other writers as a man-made code, however, and not to be confused with natural law.

Thomas Aquinas

The principal exponent of natural law ideas in the Middle Ages was Thomas Aquinas who (according to Finnis) occupies a uniquely strategic place in the history of natural law theorising. In his major work Summa Theologica Aquinas distinguished between:

Eternal law - the rational guidance of God, necessary since man is ordained to a particular end (eternal happiness) and cannot attain this through his own powers alone;

Divine law - the part of eternal law that has been revealed to man through the Holy Scriptures;

Natural law - the participation of rational creatures in the eternal law, by use of man's reason to discover that part of eternal law which applies to the human condition; and

Human law - laws made by man (in accordance with divine law and natural law) to regulate society so that man can live in harmony with his fellows.

Thomas Aquinas - human rationality and understanding natural law

The application of reason in determining the natural law was possible, Aquinas felt, because there was in man a natural and initial inclination to good because of his rational nature.
All men had this natural aptitude to virtuous action, but those who could achieve the necessary discipline without the help of others (and the fear of penalties) were rare, and it was this that made law necessary.
The correct definition of law, said Aquinas, was that it was a rational ordering of things which concerned the common good, promulgated by whoever was charged with the care of the community. However, the prince's will, if it was to have the force of law, must be regulated by reason when it commanded.
Aquinas believed that natural law could be added to, presumably by discovery of more of the eternal law, but that its primary principles could not be subtracted from. There is one standard of truth or rightness, he asserted, known to everyone as far as the general principles of reason are concerned.
What is the case - there is one standard of truth, though this may not be known to all (just as a geometrical theorem is universally true even though not known to everyone);
What ought to be done - standards might vary. Thus the speculative conclusion that all debts should be repaid was universal, but the practical question of the repayment of a debt to be used in war against one's own country admitted of more than one answer.

Thomas Aquinas - The church the exponent of natural law?

Aquinas thus based his theory of natural law on the eternal law of God, he lived at a time when secular kings and princes derived much of their authority from the Church and were subject to the Pope in matters of conscience. The Church taught that feudalism was natural and therefore right, and continued for another 250 years, and even today the Roman Catholic Church claims to be the authoritative exponent of natural law.

Renaissance and Reformation - Hobbes, Lock & Co.

The Renaissance and Reformation, and the collapse of the feudal system, led to greater emphasis on human liberty and on the free will of the individual, and natural law founded on the supposed will of a Christian God could less easily be accepted.

Traditionally, the first seculariser of natural law doctrine is said to have been the Dutch protestant Hugo Grotius (1583-1645), who sought to justify natural law in ways that did not presuppose the existence of a wise and benevolent God.
He asserted that natural law would subsist even if there were no God, and that its principles were derived from the nature of the human intellect and its desire for a peaceful society.
In fact his arguments had already been anticipated by the Jesuit Robert Bellarmine (1542-1621) and others, but it was Grotius who made these ideas widely known.

Social contract theory

Over the next hundred years or so, various writers developed the idea of a social contract under which free men surrendered some part of their natural freedom in exchange for security.

Thomas Hobbes argued that before the existence of such a contract the life of man was solitary, poor, nasty, brutish and short: self-preservation was the great lesson of natural law, and in such times of war everyone had a natural right to whatever might help him to preserve his own life, even the body of another. The social contract was his attempt to improve his chances of self-preservation by cooperation with his fellows, and to this end he owed absolute unconditional obedience to the law retaining only such rights as the state chose to give him.
John Locke (1632-1704) arrived at a similar conclusion from a entirely opposite position. To him, life before the social contract had been almost perfect, lacking only security of property. It was to remedy this defect, he said, that man renounced his natural right to perfect freedom and yielded part of his liberty to a sovereign. Locke said the individual’s tacit consent to such a contract might be inferred from his mere presence within the territory of the society, whereby he took advantage of its benefit. On the other hand, he said, while rulers had a right to rule they had a duty to use their power for the public good and could legitimately be overthrown by the people if they broke their trust.

Natural Law does it equal Natural Rights?

Probably Locke's most significant contribution, however, was his belief in a right to property antedating civil society. The earth belongs to God, he said, who had given it to all men in common, but the labourer was entitled to keep the fruits of his labour. (Such reasoning implied that the ruler could not lawfully deprive men of their property by taxation without their consent.) Nevertheless, Locke (like Aquinas before him) defended the right to physical subsistence even where this undermined property rights, and was one of the first to suggest that the old, the weak and the needy might have a moral right to claim support from their fellows.

The trouble with natural law, as the Scandanavian realist Alf Ross (1899-1979) remarked, is that she is a harlot at the disposal of anyone. Monarchs and governments claimed that natural law justified their exercise of authority (divine right theory), while the rising middle classes used it to support their claim for private property rights. The phrase "natural rights" came to be heard more and more, and the more extreme supporters of natural rights asserted that rulers held their position on trust, and could legitimately be overthrown by the people if this trust was abused. Such a claim was heard in both the American and the French Revolutions.

The departure from Natural laws

The fall of natural law thinking in the late eighteenth and nineteenth centuries came about because of pressure from several sources.

The increasing use of law as a tool of social engineering was one factor: natural law was neutral on some issues such as the formalities required in conveyancing, and law became a compromise between competing interests and difficult to see it in terms of moral absolutes.

The positivist school thinking became predominant. Laws were identified by empirically observable criteria quite independently of any moral values.

The attack on Natural Law

David Hume in his Treatise on Human Nature launched an assault on natural law thinking. Government is clearly an invention of men, he said, and the origin of most governments is known in history, so what is the basis of any claim that law is based on natural obligations?
His most severe criticism, however, was levelled at the faulty logic by which natural lawyers sought to deduce "ought" from "is". The fact that a certain state of affairs is so in nature, said Hume, does not show that it ought to be so, and the whole idea that man can use reason to deduce natural law from nature is therefore unsound. (John Finnis, below claims that man can in fact determine by rational thought what is good, without the need for any deductions from observation. Determining what ought to be, he admits, requires intelligence qualitatively different from that required for determining what is, but it is intelligence in no way inferior to the other.)
There is a second fundamental criticism of traditional natural law teaching, in that it is quite evident to anyone who looks that actual law does not always conform with natural law: this is an argument characteristic of the positivist school. Natural lawyers reply that if positive law is all that matters, the power of the state is no different from that of a gunman: what are states without justice, asked St Augustine, but robber bands enlarged?

Natural Law - The Post-War Revival

The revival of interest in natural law came in the immediate post-war years, when jurists throughout the western world were forced to consider the actions of the Nazi leadership in Germany during the period 1933-1945.

Lon Fuller while not wholly supporting the natural law school he criticised the positivists for their one-sided view of law as something imposed by the rulers on the governed, without any thought to its morality and purpose. In his work The Morality of Law (1964) he introduced the idea that a legal system should display a certain “internal morality”, and that certain procedural requirements must be observed if good laws are to be made.

Fuller begins his analysis with a parable of an incompetent ruler called Rex, whose eight attempts to make a new code of law all fail for different reasons.

First, he does not make any laws at all.
Then he does not publicise the laws he has made.
Next he legislates retrospectively rather than prospectively.
He makes laws which are incomprehensible.
He makes laws which contradict one another.
He makes laws demanding impossible standards of conduct.
He changes the laws too frequently.
Finally, the laws he makes are not applied in practice.

Natural Law - Lon Fuller

Fuller says a failure in any one of these eight directions, results not merely in a bad legal system but in something that cannot properly be called a legal system.
There can be no rational ground for asserting that a man is morally bound to obey a law that does not encapsulates the 8 points and it is pointless to obey a law which is habitually disregarded by the judges.
Even without total failure, there may be substantial failure in several areas, and this is the interesting case that arouses debate.

Corresponding to each of Rex's eight modes of failure, said Fuller, there is a desirable feature of any legal system. In reality these eight standards of excellence are rarely achieved they are a target to be aimed at.

Fuller's “inner morality” of law thus differs from traditional natural law ideas in that it is concerned with form rather than content. The internal morality of law is concerned more with the way in which decisions are made than with the substance of those decisions.

Roger Brownsword

In a talk to the Association of Law Teachers in March 1999, Roger Brownsword indicated three requirements for a rational law.

First, a rational law must not contradict itself, nor must it contradict any other applicable law.
Second, a rational law must be effective in guiding people's actions and in achieving its intended purpose.
Third, a rational law must be based on good reasons giving it a moral legitimacy.

Brownsword does not claim that a law violating any or all of these principles is not a valid law, but he says it is not a rational law (and so, perhaps, does not deserve respect or obedience.)

The Hart-Fuller debate

The debate between Hart and Fuller was actually initiated by the German jurist Gustav Radbruch. Radbruch was originally a positivist, but his experience of life in Germany under the Nazis caused him to change his views. He went so far as to say that the positivism of most members of the German legal system had been a significant contribution to the Nazis' success.

Radbruch said a purported law is not legally valid, unless it passes the system's formal tests of validity and it does not contravene basic principles of morality.

Radbruch argued judges in Germany should have treated as valid only those laws which were consistent with basic morality.

Fuller (went further) argued that the Nazi system was so seriously lacking internal morality of law that the legal system as such ceased to exist during the Nazi period. He therefore suggested that the post-war courts should not recognise as valid any Nazi legislation, conceding that there might be a need for some retrospective legislation as necessary to fill any gaps.

Hart’s opposing view

Hart and Kelsen, two positivists, disagreed with this analysis: the question for them was not “Is this purported immoral law really a valid law?” but “Is this valid law so immoral that I ought to disobey and take the consequences?” Hart gave three main reasons for his objection:

If only moral laws are valid, there will exist "laws" that are valid for some people - and not for others. Such a system would be impossible to administer fairly.

If immoral "laws" are regarded as invalid, people will be inclined to disregard them instead of campaigning against them.

A person who acts in accordance with an immoral "law" may, if the law is later declared invalid, be punished for that action. It would be better in the most serious cases to enact retrospective legislation expressly making the act criminal.

The differences between Hart's and Fuller's - The grudge Informer

The differences between Hart's and Fuller's views were shown up in their debate over the case of the grudge informer. A German woman who during the war had informed the authorities of her husband's anti-Hitler views because her intention had been to get rid of a husband who had caught her in adultery; he was arrested and imprisoned by the Nazi courts. After the war, the wife was guilty as charged with unlawfully depriving another of his liberty contrary to the sense of justice of all decent human beings. Unfortunately, the original Review report mistakenly said that the Court had declared the statute invalid as a violation of natural law, and it was this that prompted the debate.

Hart argued that such a decision would have been undesirable - the law is the law whether it accords with natural justice or not - and that there were two better options: to let the woman go free, or to enact an unashamedly retroactive law making her conduct criminal.
Fuller found this argument quite unacceptable, and said that if the Nazi laws were invalidated by retroactive legislation rather than by judicial decision, as Hart suggested, it merely transferred the dirty work from the judiciary to the legislature.
A number of jurists argued that the judges could have escaped the duress by resigning. This would probably not have led to any serious consequences for themselves - not in the early days of the regime, certainly - and would have relieved their crises of conscience. However, it would have done nothing to benefit any accused persons, who would still have been tried and condemned by Nazi-appointed judges, or punished without trial by the Gestapo or SS.

The differences between Hart's and Fuller's views

The Hart-Fuller debate was not only over the punishment of the grudge informer, however: Hart and other jurists also criticised Fuller's eight principles of inner morality as being nothing of the sort. Hart denied that they formed a moral basis for law.

For example, Fuller and Hart differed over the South African apartheid laws, which conformed broadly with the eight principles but which were almost universally acknowledged to be immoral and contrary to natural law.

Fuller drew attention to inconsistencies in the ways that different South African statutes defined race, so offending against the fourth and fifth principles, but Hart saw this as a sham: the truth, he argued, was that South Africa's laws did meet Fuller's criteria in general terms, but were designed to (and did) produce an immoral result. At best, he said, Fuller's eight principles might be necessary for a moral legal system; they were certainly not sufficient.
Hart said a legal system might fail substantially in several areas of Fuller's "inner morality" and yet work effectively.
Fuller replied to such criticisms by saying that the observance of his eight principles tended to lead to good law, because evil rulers find it hard to enact evil laws in ways which conform.
Finnis added the observation that an evil government had no reason to abide by Fuller's eight principles. This leaves the feeling that while Fuller's principles may well have a value of their own they do not by any means re-establish the supremacy of natural law.

Natural Law - A Modern View

In his major work Natural Law and Natural Rights (1980), John Finnis sought to restore the credibility of natural law. He denied that natural law depended on the deduction of moral principles (is) from observation (ought) (so answering Hume's major criticism). He argued Natural law, consists of the set of principles of practical reasonableness.

Finnis asserted that there are seven basic human goods, which every reasonable person must accept as valuable objects of human striving, these are:

life, including good health and freedom from pain;
knowledge of what is true, for its own sake;
play, or any activity enjoyed purely for its own sake;
aesthetic experience and the appreciation of beauty;
sociability & friendship, and acting in another's interest;
practical reasonableness, being able to bring one's intelligence to bear in choosing one's actions; and
religion in its widest sense.

It is obvious, said Finnis that a man who is well-informed simply is better-off than a man who is muddled, deluded and ignorant. None of the basic goods is more important than the others, although individuals may choose from time to time to give preference to one rather than another in planning their lives. But this analysis is open to challenge.

Are the seven basic goods really self-evident beyond any possibility of doubt? Is knowledge always a good, for example, or is it better that men should remain ignorant of certain things? Is friendship something to be valued for its own sake, or merely for what it achieves in terms of mutual benefit? Should other basic goods have been included, such as power or physical pleasures, which are seen by some as ends in themselves? Are not play and aesthetic experience simply two manifestations of physical pleasure? Is religion any more than a facet of knowledge?

The main criticisms of Natural Law theory

Writers and thinkers of the Positivist school have articulated some of the main criticisms of Natural Law theory. Essentially, these have attacked Natural Law theory’s elevation of propositions, which it is argued, cannot be empirically verified. The close link, which Natural Law places between morality and law, has also been seen as a result of irrationality and a source of confusion. Some of the criticisms can be summarized as follows:

The attempt by Natural Law theorists to derive ought propositions from is propositions is neither logically possible nor defensible.
Natural Lawyers are wrong to place a strong connection between law and morality. Although law may sometimes reflect morality, the two are distinct phenomena and should be recognised as such. An analysis of the one should therefore not impinge upon our conception of the other. A law can be valid because it has been created validly, even though it may offend our moral sensibilities.
Morality is a matter of personal value judgments, which may change randomly for a variety of reasons. It is therefore undesirable to base the development of law, for certainty and predictability, on moral considerations, as the Natural Lawyers would have us do.
The appeal by some Natural Law theorists to the existence of a ‘higher law’, which should be a measure of moral and legal correctness, is an appeal to irrationality, since it is not possible objectively to demonstrate the existence of such principles.

The contribution of Natural Laws to legal theory

Probably the most significant contribution of Natural Law theory to legal discourse is its invitation to all and difference to critically reflect upon the law as a social instrument for attaining various ends, which may be shared by the majority of people in a community or by a few persons in a position of political control. The emphasis on the link between law and the moral values and aspirations of persons in society is recognition of the extent to which law controls the everyday lives of citizens. An appreciation of this fact will allow us to see law as something which can be used positively or negatively and, as such, something which we need to be constantly evaluating if we are not to allow society to slide into tyranny and chaos.

Pros and Cons of Natural Law Theory

The Natural Law Theory is a philosophical system that is based on the belief that law should be based on natural human reasoning and not on arbitrary rules or social conventions. While it has been debated for centuries, there are still differing views on whether Natural Law is a worthwhile legal theory to follow. Here are some of the pros and cons of Natural Law Theory.

# Pros

Objective: Natural Law Theory asserts that the law should be objective and based on universal principles, such as justice, fairness, and natural rights. This means that the law applies to everyone equally, regardless of their social status or economic situation.

Rights-focused: The Natural Law Theory emphasizes the importance of individual rights in the legal system. It encourages the protection of natural rights, such as the right to freedom, the right to life, and the right to property, among others.

Contextual: The theory acknowledges that laws should be applied according to their unique context and that legal interpretation should be done based on the situation. This means that the law is not applied in a strict, rigid manner but is instead applied with consideration of the specific circumstances.

Virtue-Centered: Natural Law Theory encourages the promotion of moral virtues, such as compassion, honesty, and justice, in the legal system. It asserts that individuals should strive to act in a way that promotes moral values and that laws should reflect these virtues.

# Cons

Subjective: The Natural Law theory is based on the idea that there is an inherent, objective law that can be discovered through reason and human nature. Critics argue that the theory is subjective and based on individual interpretations of what is 'natural.'

Outdated: Natural Law Theory has increasingly been seen as outmoded in modern society since it relies heavily on moral values and virtues that may no longer be relevant or universally agreed upon across cultures and times.

God-focused: Many critics of the theory point out that it requires belief in an ultimate, divine being that gave humankind natural law. This makes it difficult to reconcile with religions or ideologies that do not share this belief.

Conflicting Principles: Natural Law Theory advocates the adherence to natural law, even when it conflicts with positive law (man-made law). This conflict can lead to ethical dilemmas and legal controversies.

Overall, while Natural Law Theory has its strengths, critics have a number of valid objections. Whether this theory can be successfully applied in modern legal systems remains a topic of debate.

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