Jurisprudence - Natural Law Theory PDF

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Jurisprudence - Natural Law Theory - kinds of law schools and contributions ...

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JURISPRUDENCE

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Natural Law Theory Natural law is the oldest school of jurisprudence. Natural Law philosophers think law is ordained by nature. People cannot create natural law, but they can discover its principles through reasoned thinking. Natural law theory asserts that all human beings by their nature know what is good and evil. They are basic innate laws that all individuals possess by virtue of being human. Thus, humans are morally obliged to use their reasoning to discern what the laws are and then to act inconformity with Law as it ought to be. Natural law is universal and common to all humanity. Origins of natural law lie in Ancient Greece. Many Greek Philosophers discussed this concept of natural law. They were great theoreticians. Socrates, Plato and Aristotle were the great philosophers during the Greek period. Socrates was an expert in asking questions and generating discussions. However he never wrote down his ideas. It was Plato a disciple of Socrates who wrote those discussions in his book “The Dialogue”. Another book more famous is “The Republic”, it starts with the question what is the meaning of justice? He believed that ultimate justice is discoverable through reason. Aristotle was Plato’s disciple. He founded the school “Lyceum.” Aristotle emphasized that humans are rational beings and as such by nature have a desire to know the truth. Socrates, Plato and Aristotle believed that there are certain universal and immutable standards discoverable through reason and manmade law should conform to these standards. Though the Greeks were among the first to formulate ideas of natural law, it was the Romans who made use of such theories. As the Roman Empire wanted one universal law that would be applicable to all whether at Rome or Athens. The most important early treatise on natural law is Cicero's De Re Publica. Cicero described "Law" as "the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite. Cicero asserted that natural law is….right reason in agreement with nature, of universal application, unchanging and everlasting….There will not be a different law at Rome and at Athens, and different law now and in the future, but one eternal and unchangeable law for all nations and for all times.

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Much of what is known today about natural law, however, was codified by St. Thomas Aquinas in the 13th century. Being a Christian monk, Aquinas attempted to reconcile the teaching of Christianity with the Greek thinking especially that of Aristotle. The dominant Christian view in Aquinas’ time was that since God is the source of all knowledge, natural law is that which is revealed to man by God, i.e. the Scriptures. He identified four kinds of law 1.

Eternal law – law known only to God, and cannot be understood by man

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Divine law – law revealed by God to man through Scriptures

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Natural law- law revealed by God to Man discoverable through human reason (By reading the scriptures and applying your mind to it you can discover natural law/or law as it ought to be)

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Human law – Man-made law.

Acquinas stated if man-made law conflicts with natural law, then man-made law should not be obeyed. The Common characteristics of this school of thought are 1.

Every human being has an idea of what is rights and wrong or just and fair

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What is right or just is the higher law

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The higher law is discoverable by reason.

Contributions of the Natural Law School 1.

It played an important role in the creation of international law. States and soverigns are equal. One state should not interfere with the affairs of another State.

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Natural law led to the formulation of fundamental and human rights. Examples the Universal Declaration of Human Right.

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Led to the abolition of Slavery laws

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Principles of Equity were developed on natural law thinking. The branches of law such as Trust, equity and quasi-contract are the results of natural law thinking

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The development of administrative law was also influenced by natural law thinking. The principles of natural justice audi altram partem – hear the other side and nemo iudex in sua causa – no one can be judge in his own cause. Principles of good faith, test of reasonableness.

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Legal Reforms – it is used as a yard stick for examining the existing law and reforming it

While natural law enriched society in many ways, it was also characterized by a significant drawback. Bentham was a great critique of the idea of natural laws and natural right: “Natural rights are simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts”. 1. The disadvantage was its vague character. The content of natural law could not be precisely defined. 2. The lack of enforcement was also a serious problem with regard to natural law. It is this structural weakness of natural law that inspired the growth of positivism.

However after the Second World War natural law again gained relevance, acceptance and prominence, . The world community was shocked by the atrocities committed by the Nazis, there was a need to bring them to justice before an international court. Thus the question arose at the Nuremburg Trial as to what law they are going to be tried under. The Defense Counsel for the trial of Nazi SS Officer Adolf Eichmann for crimes against humanity i.e genocide was based on the argument that Eichmann was simply following the civil law of Hitler’s democratically elected National Socialist Party. H was simply doing his duty. However Eichmann was found guilty on the grounds that there is a more basic law than civil law, that is natural law, and he should not have acted contrary to natural law. i.e people have intrinsic rights that should not be violated

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(P.S- above is only 1 example. You are supposed to take down other examples discussed at the lecture) However relevance or acceptance of natural law in the following areas is questionable. Artificial contraception is against natural process/law. But in certain countries such as India and China, where over population is a problem it is essential. In Africa too where there is widespread of AIDS natural law thinking that contraception is against the natural order has no place. Artificial methods of conception: From a natural law standpoint however, the matter is more complex, since in vitro fertilization is not a ‘natural’ process. One might argue that nature sets limits to fertility, so that not every member of a species is going to be equally able to produce offspring. If so, then to try to get round such a natural method of population control could be seen as going against ‘natural law’. Embryo experiments: With any medical or genetic issue, natural law is going to suggest that human beings have an essential nature, and manipulating nature (e.g. through genetic engineering) may be seen as frustrating a natural ordering of things, and therefore wrong. In the case of embryo experimentation, for example, a Natural Law approach would emphasize the absolute unique value of a human life, and would then seek to protect that life. It would not be right, on this basis, to sacrifice the life of an unborn child, for example, even if its birth and life might bring about further suffering. Euthanasia – again represents the direct intervention to change a natural process. Generally this may be seen as going against a Natural Law approach which says that life is of value in and for itself, and that one should therefore do all possible to allow a person to live well, rather than helping them to end their life.

As with most Natural Law approaches to these issues, there are bound to be exceptions to the rule because circumstances throw up exceptional cases

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