Natural Law - NOTES PDF

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Natural LawA law founded on nature that is based on value judgments, which originate from an absolute source. For instance, the word of God. Thus, these judgments are supposedly in accordance with nature and reason and are immutable and eternally valid. It is in accordance with the rules of nature t...

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Natural Law A law founded on nature that is based on value judgments, which originate from an absolute source. For instance, the word of God. Thus, these judgments are supposedly in accordance with nature and reason and are immutable and eternally valid. -

It is in accordance with the rules of nature that is how man ought to behave, and is an essential necessity for a man’s life in society.

The term ‘natural law’ has many meanings as reflected by the views of many jurists. Initially, classical jurists considered natural law to be founded on nature that is law which is in accordance with nature. The problem is to determine what ‘nature’ is. John Mill provided two distinct meanings of ‘nature’: -

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What exists in nature - What man observes in the universe can be called nature - Law is merely what man observes as man has no power to do anything else but to follow nature Man ought to behave to conform with what he observes in nature - Man must act to change nature rather than to imitate or follow it - Man’s moral development results from his self-efforts at controlling his natural instincts

Central themes of natural law: -

Natural law is based on value judgments, which originate from some absolute source. These judgments are in accordance with nature and reason. The entire nature of the universe is manifestation of these value judgments, which are immutable and eternally valid. It is only through proper human reasoning that the natural law can be grasped and understood. Natural law overrules all positive law, as positive law is only considered to be law when it is in conformity with natural law. Law is an essential necessity for a man’s life in society.

Over the years, the natural law theory has evolved in a variety of ways and is to be found in many legal systems. It has played an important role in the interpretation of laws. -

Corbett v Corbett: The wife, who was a male at the time of birth, underwent a sex operation and married the petitioner who knew about the operation. The petitioner wanted to annul the marriage. The court ordered the marriage to be annulled on the ground that a marriage between a man and a person who had undergone a sex change was null and void since it could not involve the natural biologically-determined consequences of marriage. - The judge in this case based his judgment on the biological aspect of marriage, which was regarded as the very foundation of marriage and since it was lacking in this case the judge found no difficulty in annulling it.

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Re B (A Minor): A female child was born suffering from Down’s syndrome, as well as a blocked intestine. Such a child’s life expectancy was a few days if no operation was performed to remove the intestinal blockage. But even if the operation was performed and was successful, medical opinion was that she would only live between 20 to 30 years, and would remain a handicapped person. The parents wanted no operation, but the local authority wanted to save the child and thus, obtained a court order to proceed with the operation. However, the doctor refused to perform the operation out of respect for the parents’ wishes. The court then revoked its order, and the local authority appealed. The counsel for the parents argued that where nature had made its own arrangements to terminate a life which would not be fruitful, nature should not be interfered with. “God or nature has given the child a way out.” However, the Court of Appeal held for the operation to be carried out.

Natural law has at different times been used to support almost any ideology, but its most important and lasting theory would be the universal order governing all men and the inalienable rights of the individual. -

It has inspired the Stoics, Romans and Grotius’ beliefs on the basis of international law, and inspired Locke, Paine, Rousseau and formed the basis of modern constitutions.

Development of Natural Law Greek Period: Plato: Humans live in an orderly universe. At the basis of this orderly universe or nature are the forms, most fundamentally the Form of the Good, which he describes as "the brightest region of Being". The Form of the Good is the cause of all things and when it is seen it leads a person to act wisely. -

In his most celebrated work, the Republic, which considers the possibility of a perfectly rational political order, he described the ideal community as, "...a city which would be established in accordance with nature."

Socrates: In order for law to become the embodiment of correct reasoning, one has to use reason and apply insight to the nature of conduct. -

Man possesses insight and this insight reveals to him the good and bad in things. He pleaded that the principles of morality should not change. Law is closely associated with Justice and Ethics, thus natural law requires compliance to positive law and authority. Positive law is to be obeyed at all times.

Aristotle: -

Law is the law of nature and it is universal in application Man is a part of nature in two ways: - He is part of the creatures of God

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- He possesses active reason He elaborated the difference between natural justice and legal justice: - Natural justice is universal and not changeable in its contents - Legal justice is known as positive or conventional justice, which is only binding because it is in the form of decree issued by political authority. He emphasized that the ultimate aim of man should be the attainment of a State of goodness. A just law is that which allows individuals to develop their potentials within the framework of the society.

The Stoics: -

Zeno’s writings represent the Stoic School, where he emphasized the maxim “live according to nature”. Natural law was the law of reason and so long as man lived according to his reason, he was said to be in conformity with natural law. According to Zeno, the entire world was governed by a “rational mind”. - It is the reasoning in man that led to the distinction between right or wrong. - The law was the result of one’s concept of right and rectitude (goodness).

Roman Period: Stoicism passed over to and influenced Roman thought. -

Three types of laws developed historically: - Jus civile: Body of laws applicable to the citizens of Rome only - Jus gentium: Body of laws applicable to foreign citizens - Law of universal application - Jus natural: Common type of rules applicable to all foreigners and nationals. These were rules of general application and based on historical and practical experience. It consisted of maritime and commercial usages

Cicero: Natural law was right reason in agreement with nature. -

True law is right reason in agreement with nature, it is of universal application, unchanging and eternal; it summons to duty by its commands and deters from wrong by its prohibitions. It is a sin to try to alter this law. Nor is it allowable to attempt to repeal any part of it and to annul it wholly is impossible.

Christian Fathers: St. Augustine: The perfect type of law was the law of nature and man lived in the “golden age”, in a state of innocence and justice. But this could not continue with the emergence of human laws, institutions of property and government. These institutions were deemed sinful. -

Since the concern of the State was to maintain peace among mankind, it became necessary to defend the Church and uphold the validity of the laws made by man. - Thus, the Church employed absolute sovereignty over the State. - The provisions of human law were to be ignored if it came in conflict with natural law. At the same time, unjust human law could not be “law”.

Medieval Period: St. Thomas Aquinas In his Summa Theologica, he restored Natural Law to its independent state, asserting natural law as the rational creature’s participation in the eternal law. Aquinas defined law as: “An ordinance of reason for the common good made by him who has the care of the community and promulgated”. -

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Standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. He identifies the rational nature of human beings as that which defines moral law: “the rule and measure of human acts is the reason, which is the first principle of human acts.” - Law is something pertaining to reason. Since human beings are, by nature, rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. - By reflecting on his own impulses and nature, man can decide what is good. Moral law is derived from the nature of human beings (termed, “natural law”).

Aquinas distinguishes four kinds of law, which are unified and interrelated: -

Eternal law (Lex aeterna): Comprised of those laws that govern the nature of an eternal universe; comprising of all those scientific (physical, chemical, biological, psychological, etc.) ‘laws’ by which the universe is ordered.” - Eternal law which is revealed through scripture is the rational guidance of creation on the part of God – “divine reason” - Eternal law is known only to God and the blessed who see God in his essence - It is God’s plans for the universe, a deliberate act of God and everything, not only man, is subject to it. - All creatures should obey the law, but man who is endowed with free will can afford to disobey. - Eternal law is necessary as man is ordained to a particular end (eternal happiness) and cannot attain this through his own powers alone but needs guidance and direction.

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Natural law (Lex naturalis): Comprised of those precepts of the eternal law that govern the behaviour of beings possessing reason and free will. - Natural law is man’s share in the divine reason because man is endowed with reason. - The first precept of the natural law is the somewhat vacuous imperative (empty order) to do good and avoid evil. - Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational nature of human beings. - Good refers to whatever within human power can be understood as “intelligibly worthwhile”

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- Evil refers to “any privation of intelligible goods.” In every man, there is an aptitude to be good in accordance with the nature which he has in common with all substances. - A man has a natural aptitude to learn the truth about God and to live in society.

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Divine law (Lex divina): Concerned with standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation. - God’s law for mankind as revealed in the scriptures and religious books. - It is not the same as natural law, but it is not contrary to it. - It provides rules as to how a man’s life should be conducted

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Human law (Lex humana): Law promulgated by human beings is valid only insofar as its content conforms to the content of the natural law - Man-made law supported by reason - Human law is necessary for two reasons: - Natural law does not provide all or even most of the solutions to everyday life in society. - There is need for compulsion to force selfish people to act reasonably.

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Laws framed by man are either just or unjust - Laws are just if they have the power of binding in conscience; the law must be virtuous, necessary, useful, clear and for the common good - Unjust laws are a perversion (distortion) of law and do not bind man’s moral conscience unless observance of them is required in order to avoid scandal or disturbance. Unjust law is not law and must not be observed. - Laws are unjust in two ways: - When they are contrary to human good, either in respect of their end or form. Laws are unjust if they impose unequal burden on the community - When they are opposed to Divine good - E.g: Laws of tyrants inducing to idolatry

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Aquinas’ system has the following features: - Natural law furnishes principles rather than rules - His system is an empirical approach to eternal law and natural law - Reason becomes the foundation for all human institutions. - The Church comes to have authority over scriptures and divine law and the State is taken as a natural institution.

There was a marked deviation from the doctrines of Christian Fathers, thus from 1200 to 1300 A.D, changes were made: -

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Political society and the State ceased to be considered as institutions of sin, instead they are instruments in the pursuit of justice and virtue. In order to justify the power of the State, political thinkers came with the theory of “social contract”. Law was regarded as the highest principle of society. - Evidenced through the struggle between Religious representatives and the sovereign. Private property was no longer regarded as bad; the importance and integrity of right to property were emphasized.

16th – 18th century: -

Grotius considered natural law immutable and intelligible. He understood natural law as a “dictate of right reason which points out that an act is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity.” - In the Prolegomena to De Jure Belli ac Pacis he declares that the fundamental principles of ethics, politics and law are functions of the essence of human nature. - A study of human nature revealed that it consists of two basic needs: the need for self-preservation and the need for society. In order to satisfy these two needs and live successfully, man ought to do two things: abstain from what belongs to others, and engage in reasonable pursuit of what genuinely serves his interests. - Grotius maintained that natural law obliges us to perform actions which contribute to our rationality, sociability and need for self-preservation. Grotius did not agree with those who wanted to exclude non-Christians from the jurisdiction of natural law. Natural law, according to him, applied to all rational and social beings.

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Thomas Hobbes believed that in a state of nature, a man’s life was full of fear and selfishness: A man’s life was “solitary, poor, nasty, brutish and short”. - To escape from anarchy, man chose to enter into a social contract: - Pactum Unionis: A pact to respect each other’s life and property. - Pactum Subjectionis: A pact to obey the government chosen by the people themselves. - He believed that there was no society distinct from the State. Every authority was vested in the sovereign. The laws were commanded and enforced by the sovereign, who was strictly utilitarian and secular. The church was subordinated to the State like any other corporation. - Natural law was the dictate of right reason conversant about those things which are either to be done or omitted for the constant preservation of life.

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John Locke believed that, in the beginning, man lived in a state of nature which was a state of liberty, not of licence. - State of nature: A golden age, which suffered the problem of property not being secure. This defect was removed by entering into social contract with authority which people chose themselves. - The purpose of the government was to protect an individual’s right to life, liberty and estate. - If the government is unjust, the people can resist tyranny and replace the government. - The Earth is owned by God and thus, there can be no right to property. But if the individual mixes his labour with material objects, he can acquire the right to the property for his contribution. - Natural law was above positive law. It is immutable and binding on all persons within the State.

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Rousseau, whose writings resulted in the French Revolution, claimed that although man is born free, “everywhere he is in chains.” - Man lived in the golden age of freedom, equality and happiness. But with the advance of civilization, such virtues disappeared. Since man was in search of happiness, he entered into the social contract and surrendered his natural rights to the authorities. - With the process of the social contract, each person in the state became subject to the general will of the whole community. The general will could be discerned by a process of voting by the majority. By upholding the general will of the community, the government may do anything, even infringe upon the natural rights of the individuals.

19th – 20th century witnessed the decline in natural law. -

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This was a result of excessive individualism resulting in the French revolution and the secularization of laws due to secular attitudes and loss of faith in religion. Natural law was marched over by scientific theories that argued over the many basic principles of natural law which is based on many unproven hypotheses. Psychological and anthropological researches stressed that law and justice were determined by adaptation to environment and other variables, which casted doubts on the “immutable” basis of natural law Some of the postulates of natural law came to be challenged by the jurists of the positivist school.

Although natural law may have decreased in importance, it has never perished. This is evident from its revival in the 20th century. -

Contribution from the French revolution and other revolutions that led to a reaction. - People began to look out for values, which were then intensified. Analytical and historical schools were not providing adequate solutions to the contemporary problem such as justice

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World War 1: Destroyed social, economic, political stability, which led to the need to revive standards again and to establish norms to evaluate rules made by man. World War 2: Brutality and anarchy was widespread, even in well-organized states. - People began to question the relativism in politics and law - The effects of the war were insecurity and uncertainty which led to a new moral order The establishment of United Nations, principles of natural rights (law) were incorporated in the U.N's Charter in 1945 especially 'peace and dignity' on its preamble The Universal Declaration of Human Rights (UDHR), 1948 to a large extent incorporates inalienable natural rights.

At municipal level, principles of natural law were in some instances invoked to test the legality of administrative acts. -

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Oppenheimer v Cattermole: In this case, a German decree enacted on 25th November 1941 provided that a Jew loses his German citizenship if at the date of entry into force, he has his usual place of abode abroad. The decree also provided for the confiscation of the property of Jews for the use of that property ‘to further aims connected with the solution of the Jewish problem.’ The court considered the question whether a Nazi law was so iniquitous (immoral) that it should refuse to recognise it as law, thus raising the connection between the concepts of law and morality. Held: Oppenheimer’s loss of German citizenship under the decree could not be recognised by English courts. Irrespective of German law, under English law he remained a German national after 25th November 1941 on the ground that English law did not recognise a change of nationality by a decree of a foreign enemy State in wartime and will not give it effect. - Lord Cross: “Legislation which takes away without compensation from a section of the citizen body singled out racial ground all their property on which the state can lay its hands on and, in addition, deprives them of their citizenship is contrary to international law and constitutes so grave an infringement of human rights that the court of this country ought to refuse to recognise it as law at all.”

John Finnis Finnis’ naturalism is based on an ethical and moral ...